Professor Stephen Lubben Quoted in The Economist on Racketeering

May 21, 2018

McKinsey manages to get itself sued for racketeering

Mobsters,gangsters and bent cops have all been tried under America’s Racketeer Influenced and Corrupt Organisations (RICO) Act. Might consultants be next? McKinsey, a management consultancy, is being sued under the law by Jay Alix, the founder of AlixPartners, a competitor in the field of bankruptcy advice. Mr Alix alleges that McKinsey knowingly misled courts in order to land clients. The firm denies any wrongdoing.

Bankruptcy is lucrative, for those doling out the advice. According to Debtwire, a data provider, corporate bankruptcies generated $1.3bn in fees in 2016, with lawyers taking home over half, and the rest going to consultants, accountants and financiers. McKinsey is a relative newcomer: it set up its restructuring arm, which turns around companies in financial distress, in 2010. Though its share of the market is smaller than those of the top players, AlixPartners and Alvarez & Marsal, its entry has stiffened competition. Its clients have included American Airlines, Puerto Rico and a number of energy companies.

Mr Alix has said he wants to ensure all advisory firms operate on a level playing field. But some wonder if the RICO suit, originally designed to litigate against criminal organisations, is being used to grab headlines. Nor is it clear how Mr Alix can prove his firm was deprived of work.

Even if it had made more disclosures, says Stephen Lubben, a law professor at Seton Hall University, McKinsey may not have been disqualified all the time; and if it had been disqualified, AlixPartners may not have snapped up all the work. Court cases, just like bankruptcy advice, can be messy.

Read the rest of "McKinsey manages to get itself sued for racketeering"

Institute for Privacy Protection's School Outreach Program Featured in Washington Post

April 09, 2018

NEWARK — The fifth-graders of Yolanda Bromfield’s digital-privacy class had just finished their lesson on ­online-offline balance when she asked them a tough question: How would they act when they left school and reentered a world of prying websites, addictive phones and online scams?

Susan, a 10-year-old in pink sneakers who likes YouTube and the mobile game “Piano Tiles 2,” quietly raised her hand. “I will make sure that I don’t tell nobody my personal stuff,” she said, “and be offline for at least two hours every night.”

Between their math and literacy classes, these elementary school kids were studying up on perhaps one of the most important and least understood school subjects in America — how to protect their privacy, save their brains and survive the big, bad Web.

Classes such as these, though surprisingly rare, are spreading across the country amid hopes of preparing kids and parents for some of the core tensions of modern childhood: what limits to set around technologies whose long-term effects are unknown — and for whom young users are a prime audience.

The course offered to Susan’s 28-student class at First Avenue School, a public neighborhood school in Newark, is part of an experimental curriculum designed by Seton Hall University Law School professors and taught by legal fellows such as Bromfield. It has been rolled out in recent months to hundreds of children in a dozen classrooms across New York and New Jersey.

 

Read the rest of "The new lesson plan for elementary school: Surviving the Internet."

 

Seton Hall Law Deans Sullivan and Glynn Write Op Ed for NJ Spotlight

March 16, 2018

Op-Ed "A Call to Restore the Courts' Role in Addressing Sexual Misconduct"

The attorneys general of all 50 states, the District of Columbia, and several territories recently signed a letter to Congress urging an end to mandatory arbitration of employment sexual harassment claims. While there has been much public attention paid to the role of nondisclosure agreements in insulating public (and not-so-public) figures from criticism for their misconduct, the role of mandatory arbitration agreements in shielding workplace sexual predators from public disclosure is far less understood but perhaps ultimately more of a problem.

Nondisclosure agreements, of course, are typically part of settlements of harassment claims and therefore exist only when the victim has received some satisfaction for her claim — typically monetary but often career-related. We do not argue that the amounts paid typically reflect the harm done (indeed, recent reports suggest a staggering range of payments from millions to a few thousand). Nor are we confident that internal corporate processes that are usually entailed when the corporate employer pays the victim usually result in meaningful reforms to prevent recurrences of the conduct. The Weinstein debacle alone establishes that that is not always the case. But it remains true that, where there is a nondisclosure agreement, there has almost always been compensation paid and usually escalation of the wrongdoing to higher ups who can, at least in the wake of #MeToo, be expected to have learned the costs of sweeping misconduct under the rug.

 

Read the rest of "A Call to Restore the Courts' Role in Addressing Sexual Misconduct".

Professor Stephen Lubben quoted in New York Post as bankruptycy expert

March 13, 2018

Buyout kings lately are having a harder time bullying creditors with bankruptcy threats.

A year ago, lenders to radio broadcasting giant iHeart Media were getting threats from private-equity firms Bain Capital and Thomas H. Lee Partners, who demanded they take a haircut on $15 billion in bonds and cede control of the company in order to avoid a bankruptcy filing.

The lucrative bondholder backlash has surfaced as “private equity has gotten increasingly aggressive in an attempt to save some of their investments,” Seton Hall Law professor Stephen Lubben told The Post. “Basically the attitude seems to be, ‘Let’s see if we can get away with this.’”

Read more of Buyout firms’ bankruptcy threats are losing their bite.

Seton Hall Law Featured in US News - "Use a Law Degree for Nonlegal Jobs"

February 08, 2018

Some people go to law school knowing they don't intend to practice law because they plan on pursuing a law-related job in communications, politics or business.

“We know from experience that a fair percentage of our students already are coming to law school intending to do something other than practice law," says Kathleen Boozang, dean of the Seton Hall University School of Law.

She says this trend is particularly pronounced among enrolled students in Seton's part-time weekend program, who typically also work full time. Many of these students, she says, are currently employed in jobs where a J.D. is an advantage but not a requirement.

Legal career experts say a J.D. is relevant in a wide array of fields.

"A J.D. is a very powerful degree to have in your tool belt regardless of the field you end up working in," says Lisa Bertrand, who earned her J.D. from Georgetown University and has held both legal and nonlegal jobs.

Bertrand, who is now a graduate school recruiter at the New York Institute of Technology's School of Engineering and Computing Sciences, says prospective law students with an interest in nonattorney jobs should see whether their target law school offers second- or third-year electives in topics relevant to their desired career path.

Experts advise law school hopefuls with an interest in nonattorney jobs to make sure a J.D. will make them marketable for positions they desire.

"Law school is a challenging three years; it’s in many ways grueling, and it’s not for everyone. And for the people who aren’t sure they want to go, it’s really true that it’s advisable to take some time off to know what you want to do," says David Helfenbein, an alumnus of the Washington University in St. Louis School of Law and a senior vice president with the Main & Rose strategic branding company.

Here are three law-related fields where experts say a J.D. is a compelling advantage.

• Crisis communications: Helfenbein – who specializes in branding, crisis communications and government relations – says his law degree regularly comes in handy when he represents clients with public relations troubles. Crisis communications is a challenging form of public relations work that involves representing individuals or companies facing litigation or criminal charges or receiving other negative publicity.

“People in crisis communications have to be very careful with the words that they choose just as lawyers have to be very careful with the words that they choose," he says.

Helfenbein adds that crisis communications work often involves collaborating with a client's attorneys to ensure that no public statements released on the client's behalf put the client in legal jeopardy. “We are in many ways a public-facing component of a legal defense," he says.

• Politics: Some experts say lobbyists have more credibility with politicians if they have law degrees, and many experts say a law degree is an advantage for government relations careers.

"A lot of people in the political realm have law degrees, because it helps them understand the governing process beyond the basics that we learn in elementary or high school," says Helfenbein, who has held a number of political positions and appointments.

But Roger Austin, a Florida-based political consultant with a J.D. from the University of Florida's Levin College of Law, emphasizes that a law degree isn't a requirement to work in a policy or political job. He says he knows many successful policy professionals who never attended law school.

However, Austin says he uses his legal training when assisting state and local politicians with their political campaigns, ensuring that all contributions comply with campaign finance laws.

• Compliance: Boozang of Seton Hall University says compliance jobs are also a natural fit for law school graduates. "We know that so much of the business world, so much of industry is heavily regulated," she says.

Experts on legal careers say that occasionally executives at companies in highly regulated industries decide to attend law school so they can understand the laws that govern their business. One such executive is Matthew D'Ambrosio, a senior vice president and global chief compliance and ethics officer at Walgreens Boots Alliance – the health and wellness company that owns Walgreens and Duane Reade pharmacies.

D'Ambrosio says he has no regrets about earning his J.D. in health law at Seton Hall University in 2001, because he uses his legal expertise on a daily basis to ensure that his company complies with government regulations.

He adds, "I don’t think I’d be where I am today without my legal training."

Searching for a law school? Get our complete rankings of Best Law Schools.

 

Professor Stephen Lubben quoted in Reuters as Bankruptcy Expert on Biofuel Costs

January 22, 2018

The plan revives a debate between U.S. refiners and ethanol producers over the nation’s renewables policy, and could spur actions from other struggling refiners should the U.S. Environmental Protection Administration allow PES to reduce its biofuel obligations.

The Trump Administration could also wade deeper into the fray should the Pennsylvania refinery, which has some 1,100 workers, face closure.

Stephen Lubben, a professor at Seton Hall Law School, said other struggling refiners may also attempt to offload these obligations if the PES bankruptcy gives the refiner relief.

“The EPA will look closely to make sure this is not a sham to leave them holding the bag,” said Lubben. He said a debtor that cannot comply with such rules usually has to liquidate. “If you want to restructure, the business coming out the other side has to comply.”

Read more of U.S. refiner PES pins bankruptcy plan hopes on biofuel costs

Dean Sullivan Quoted in ESPN as Legal Employment Expert On NFL Players Benching

October 11, 2017

But does Jerry Jones, or any other owner, have the right to bench a player for protesting during the anthem? Could such a benching be a violation of the NFL's collective bargaining agreement or, beyond that, could it even be illegal?

For its part, the NFL Players Association issued a statement that said in part, "We should not stifle these discussions and cannot allow our rights to become subservient to the very opinions our Constitution protects." A benching of this type would certainly prompt the NFLPA to file a grievance under the CBA.

The players seem to have some built-in advantages in such a dispute. Unlike the NBA's collective bargaining agreement, the NFL CBA does not specifically require players to stand for the anthem. There is, however, a section in the NFL Game Operations Manual that mentions that players "should stand at attention, hold helmets in their left hand and refrain from talking." And commissioner Roger Goodell sent a letter to teams on Tuesday reiterating the language.

According to a half-dozen experts we contacted, workplace employment law may have the last word. While the experts are divided on who would win such a legal battle, our sample ruled narrowly in favor of the owners.

Charles Sullivan, professor of law, Seton Hall University: "Where I think the players have a problem is there's not really an adverse employment action if they are simply benched. They are still being paid, and I don't think they necessarily have the right to play in games."
Advantage: Owners

Read the rest of Is it legal for Jerry Jones to bench players who don't stand? 

Professor Sarah Waldeck Quoted in The Detroit Free Press

August 30, 2017

On his way to becoming the University of Michigan's largest donor, Stephen M. Ross and a group of business partners donated a collective gift to his alma mater.

In return, the partnership claimed a giant charitable tax deduction: $33 million.

The Internal Revenue Service didn't buy it.

IRS lawyers flagged Ross and his partners as engaging in a "tax avoidance scheme lacking in economic substance … to the benefit of Mr. Ross and his associates at Related Companies.”

It would take nearly a decade of legal wrangling before U.S. Tax Judge James S. Halpern sided with the IRS last month and disallowed the entire $33-million write-off that the judge valued at a more paltry $3.4 million. The judge also imposed maximum civil penalties for a "gross valuation misstatement" that could now cost Ross and his partners millions more.

Seton Hall University’s Sarah Waldeck, a law school professor who specializes in charitable giving, sees the university's role as thoughtful despite unusual circumstances.

“In my experience, nonprofits work really hard to stay away from the question of what donors are actually claiming on their taxes," Waldeck said. "I think that the decision not to become tangled up in or involved in what donors’ tax returns looks like a legitimate, practical move by a nonprofit.”

Read the rest How Stephen M. Ross' gift to the University of Michigan ended up in tax court

Dean Boozang Interviewed by NJTV on Jump In National Rankings

August 28, 2017

At a time when law school enrollments nationwide have remained flat or fallen, Seton Hall Law has broken the mold. Its admissions up 33 percent. Its national rankings on the rise. What’s its secret? Seton Hall Law Dean Kathleen Boozang shares it with Correspondent Lyndsay Christian.

Christian: Dean Boozang, when you became dean of Seton Hall Law in 2015, you had an aspiration that it would become a top 50 law school in the nation. And, that’s a dream that’s actually within reach because in your short tenure, the ranking jumped from number 57 in the U.S. News and World report. What would you attribute to the success?

Boozang: We’ve held fast to make sure that we admit highly-qualified applicants who we’re certain will be successful when they graduate and take the Bar. So, it’s been a hard market for law schools, but we’ve stuck to the fundamentals and we are seeing it through.

 

Watch the interview here. 

Professor Stephen Lubben Sits Down with CBS News Commenting on Bridal Shop Bankruptcy

July 24, 2017

The sudden closure of Alfred Angelo, a large wedding dress retailer, has left many brides-to-be scrambling to find a dress in time for their big day. It closed all 61 of its stores just before the two most popular wedding months, August and September. 

Click here to watch the video.

Professor Paul Franzese on Tenant Rights with Senator Cory Booker

July 18, 2017

Cortes is one of an untold number of people who have been “blacklisted” by tenant-screening agencies because her current landlord began eviction proceedings against her for nonpayment of rent. Cortes has been putting her rent in escrow rather than paying her landlord, as lawyers say she is legally allowed to do, because of the unsanitary conditions of her housing.

Yanira Cortes says she withheld her rent to protest unsanitary conditions in her apartment and has been blacklisted by landlords for doing so.

“Now when I try to apply to other places, they tell me, ‘You went to court for an eviction, you’re basically a bad tenant,’” said Cortes, 29. “It’s not fair to me or my children to have to live in these conditions.”

Landlords deny that they engage in blacklisting. But the practice has been under scrutiny recently in New Jersey. On Monday, U.S. Sen. Cory Booker (D-NJ) jumped into the fray, announcing federal legislation that would reform the Fair Credit Reporting Act to make tenant-rating agencies more accountable and give tenants additional protections.

Booker’s legislation seeks to help tenants in several ways. It would:

> Prohibit consumer-reporting agencies from providing information on evictions or other housing court issues unless the landlord won the case;

> Prevent the agencies from reporting on issues that are more than three years old;

> Require the agencies to try to verify the accuracy of the information they are reporting;

> Make a consumer’s report available to them for free once a year through a centralized clearinghouse and require a landlord who declines to rent to a person to give him a free copy of his report;

> Have the Consumer Financial Protection Bureau report to Congress on tenant-rating agencies and their compliance with the Fair Credit Reporting Act.

“The chilling effect is real,” said Paula Franzese, a professor at the Seton Hall University School of Law who teaches property law and was the co-author earlier this year of an article on issues surrounding tenant eviction proceedings and blacklisting. “Tenants are afraid to speak up. They fear appearing on that blacklist … It creates false negatives. A tenant who is a very good tenant, a worthy tenant, because the list gives no context, that tenant is denied future housing opportunities.”

Franzese said she brought the issue to Booker’s attention earlier this year after learning about the blacklisting process and its ramifications. According to her article, companies that call themselves “credit-reporting agencies” screen a prospective tenant in exchange for a fee the tenant must pay and then report all instances in which that tenant was named as plaintiff or defendant in a landlord-tenant court action.

“Those reports, which can sink a tenant’s prospects of finding rental housing, reveal nothing about context and do not indicate, for example, whether or not the listed tenant successfully defended the litigation or raised breach of warranty,” Franzese wrote, referring to a tenant refusing to pay rent due to conditions making an apartment uninhabitable.

Read more of what Professor Franzese is doing to help in "Legislating Against Blacklisting To Help Tenants Find Better Housing" from NJ Spotlight.

Professor John Jacobi featured in NJ Spotlight On Reorganization of Health Services in NJ

July 14, 2017

Officials from the Christie administration will be called to explain the benefits of a controversial plan the New Jersey governor outlined to shift addiction and mental health services to a different department during a legislative hearing scheduled for later this month.

The governor’s proposal is designed to better integrate behavioral health and physical health services — an approach widely recommended by experts — and improve government efficiency by moving the Division of Mental Health and Addiction Services from its current home in the Department of Human Services into the Department of Health.

Seton Hall professor John Jacobi was encouraged by the governor’s proposal, however. Jacobi and his colleagues published a report in March 2016 that identified bureaucratic and systemic hurdles that prevent New Jersey from better integrating behavioral and physical care, and he has been working with key staff at both the health and human services departments ever since; Christie frequently cited the study in his proposal.

“This is a real opportunity for New Jersey,” Jacobi said earlier this week. “There’s no easy way to do this,” he added, “but there is a deep commitment in both agencies to get this right.”

Read more from Professor Jacobi in "Lawmakers Wary of Christie's Plan to Shift Addiction, Mental Health Services" from NJ Spotlight. 

Dean Charles Sullivan Featured in Real Clear Education

June 16, 2017

America’s colleges and universities are, with good reason, under attack for promoting an expensive postsecondary education “bundle” that is increasingly unmoored from the demands of the workforce. 

Bipartisan legislation introduced by Senators Bennet and Rubio now aims to bust the accreditation cartel. But like the music and television industries, entrenched colleges and universities have, to date, fought the unbundling of a lucrative $500 billion revenue stream.

On their face, college degree requirements invariably fail the 20% deviation adverse impact test: 42.9% of whites ages 25-29 have bachelor’s degrees compared with just 22.7% of African-American and 18.7% of Hispanics. So one would think college degree requirements in job descriptions would be ripe for EEOC action. According to Associate Dean Charles Sullivan, an employment law expert at Seton Hall Law School, “Remarkably, the answer is almost never. No one is interested in upsetting this apple cart.”

When an enterprising lawyer – or state’s attorney general – finally decides to bring such a case, employers will attempt to show that the ratios of new hires to applicants don’t diverge by more than 20% for any group. That’s true, but only because college degree requirements keep candidates without degrees from applying to good jobs. Proving adverse impact of college degree requirements will require the demonstration that employment policies actually keep qualified candidates from applying. According to Sullivan, “such a case will require experts to prove the statistical case. But it can be done.”

Read the rest of Will Employment Law Help Break the Higher Education Monopoly? 

Professor Maggie Lewis Comments in "A ChinaFile" Conversation

June 14, 2017

On June 12, the small Central American nation of Panama announced it was severing diplomatic ties with Taiwan so that it could establish relations with the People’s Republic of China. Now, only 19 countries and the Vatican recognize Taiwan. Why did this happen? How does it affect Taiwan’s relationship with the mainland? Should the United States get involved in preventing the further diplomatic isolation of Taiwan? 

The Democratic Progressive Party (DPP) took back power last year on an upbeat campaign that it would “Light up Taiwan” (點亮台灣), but President Tsai Ing-wen must be feeling anything but sunny at this moment.

The president continues to struggle in opinion polls, with the economy remaining a point of deep concern: compared with many of Taiwan’s formal diplomatic allies, Panama was a fairly large trading partner. Yes, the loss of diplomatic relations with Panama will have a small effect on Taiwan’s total foreign trade. Yet it is notable as another straw on the proverbial camel’s back, building on other economic pressure from Beijing, such as moves to curb mainland visitors that provide crucial tourism revenue in Taiwan.

Read the rest of "The World Is Deserting Taiwan. How Should the U.S. Respond?"

Professor Maggie Lewis Featured in Council of Foreign Relations blog

May 31, 2017

Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.

As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?

The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.

Read the rest from Council on Foreign Relations. 

Professor Stephen Lubben on Bankruptcy Filings featured on TechCrunch

May 08, 2017

In the world of venture-funded companies, not much surprises industry observers. Yet a new strategy employed by one privately held company might have founders and venture investors wondering if it’s a maneuver worth replicating.

What happened: The U.S. subsidiary of a venture-backed Berlin-based search optimization company called Searchmetrics just filed for Chapter 11 bankruptcy protection in Delaware.

Stephen Lubben, an expert on bankruptcy who teaches corporate governance and business ethics at Seton Hall Law School, meanwhile observes that yes, bankruptcy filings by venture capital-backed companies are rare, particularly in California, where the strong preference is to do an “assignment for the benefit of creditors” that allows backers more say in how to save their investments.

But also speaking generally and not specifically about these two companies, Lubben says that bankruptcy filings solely to address a single piece of litigation are “dicey. The court might dismiss the filing as being in bad faith. The company will have to show some other reason for needing to reorganize, and that it’s not just trying to stiff a single creditor.”

Read the rest of TechCrunch's piece, "This venture-backed company just filed for Chapter 11 bankruptcy to resolve a patent dispute."

Professor Stephen Lubben on debt issues facing iHeart Media

March 24, 2017

In a restructuring world dominated by oil and gas companies on the one hand and retail on the other, iHeartMedia stands out.

But if we dig a bit deeper, the San Antonio-based radio and billboard company shares some similarities with those other companies buffeted by recent economic trends.

Last week, iHeart announced that it had commenced an exchange offer targeted at all of the company’s outstanding term loans, along with various other notes, totaling about $14.6 billion in debt. Earlier this year, iHeart exchanged $476 million of senior unsecured notes due in 2018 for a like amount of senior secured notes due in 2021.

That maturity extension was simple compared with the current exchange offer.

Under the new offer, iHeart is offering various packages to creditors, depending on the degree of creditor participation. For example, the company’s term loan lenders will be offered a range of $750 to $880 of new term loans for every $1,000 of old term loans they tender.

Read the rest of The New York Times piece, "A New Twist in iHeartMedia’s Debt Struggles"

U.S. Attorney Heads to Seton Hall Law

March 16, 2017

After his recent resignation, now-former U.S. Attorney Paul Fishman didn’t have long to wait for a landing spot—and doesn’t have far to go.

Fishman’s first post-government job comes as a distinguished visiting fellow at Seton Hall University School of Law in Newark. The position, which is not full-time, is official as of Friday.

“I got a call from the dean Sunday morning,” said Fishman, reached by phone. “It was a pretty easy question to answer.”

The move brings Fishman all of about seven blocks northward in Newark, from the Peter Rodino Federal Building on Broad Street to Seton Hall Law at One Newark Center, on Raymond Boulevard.

Fishman will be tasked with guest-lecturing, meeting informally with students, and serving as a keynote speaker for the school’s healthcare compliance program. The physical move takes place Friday. Fishman said he’ll spend “a fair bit of time” on campus, but the time commitment is still to be determined.

“This is an opportunity for me, while I’m exploring other options in the private sector, to keep my hand in issues that are important to me,” Fishman said, citing criminal justice reform, prisoner reentry and opioid addiction as such issues.

Read the rest from NJ Law Journal. 

Professor Mark Denbeaux and students uncover new evidence in 1953 Ethel Rosenberg case

January 11, 2017

A group of New Jersey law students claim to have uncovered bombshell new evidence in one of the most infamous espionage cases of the 20th century, including an FBI document they say may indicate an innocent woman was executed.

The case is about Julius and Ethel Rosenberg – American citizens executed in 1953 for passing atomic secrets to the Soviet Union. Since then, evidence has appeared to confirm that Julius was a spy, but his wife’s role has long been disputed. Students from the Seton Hall University School of Law Center for Policy & Research took up the case, and started from the beginning, said Professor Mark Denbeaux.

“I never wanted to re-litigate the case,” author of the report, Seton Hall Law Professor and Director of the Center for Policy & Research Mark Denbeaux told FoxNews.com. “The point was to do what law students should learn to do: go back to the evidence and find out what is there –then work our way back and see how it evolved.”

What they found was that Ethel Rosenberg may have been charged merely to squeeze a confession out of her husband, a dramatic development that affirmed the old suspicions of Denbeaux’s father, the son of George Patton’s combat chaplain. The elder Denbeaux, who helped liberate two concentration camps, always believed that Ethel Rosenberg’s execution was tied to her religious beliefs.

Read the article, "Legal scholars claim new evidence shows Ethel Rosenberg was innocent in infamous spy case," in it's entirely on FoxNews.com

Professor Kristin Johnson sheds light on the uses and abuses of offshore banking

April 25, 2016

The Panama Papers revealed that 140 politicians had hidden enormous sums of money from regulators because much of that money was used to conduct illegal business. This has raised many questions about the legality of offshore banking. Asbury Park Press interviewed Professor Johnson as an expert in financial markets regulation in order to understand where the lines are drawn. A sampling of her answers:

Q: What are the most common reasons for utilizing offshore bank accounts?

A: Businesses and individuals form subsidiaries or engage in transactions outside of their principal place of business to take advantage of economic benefits…Some investment opportunities may only be available…outside of the U.S. …Favorable tax treatment in certain foreign countries has inspired…the more popular term “tax neutral” jurisdictions. In some instances, the use of offshore banking is legal…In other instances, offshore banking may facilitate efforts to evade domestic regulation…Estimates regarding illegal tax avoidance loom large, with sources suggesting that more than $90 billion in federal income earned and deposited offshore goes unreported each year.

Q: What steps has Congress taken historically to prevent companies and individuals from escaping taxation or criminal liability by cracking down on offshore banking?

A: Congress passed the Foreign Account Tax Compliance Act (FATCA). (Which) requires foreign banks to report information about Americans’ accounts containing over $50,000 to the IRS. If foreign banks refuse to comply with FATCA, they may face withholding liability or government efforts to freeze them out of U.S. financial markets. (Also,) since 2011, U.S. taxpayers have been required to…disclose the total value of all specified foreign financial assets over certain threshold amounts.

Q: How common are prosecutions of American companies and individuals for illegally utilizing offshore accounts?

A: The IRS works with the U.S. Department of Justice to identify and investigate taxpayers with offshore accounts. Domestic legislation in other areas promises to open additional pathways for investigation and, possibly, prosecution…In the Wall Street Reform and Consumer Protection Act…Congress included statutes that appear to endow federal regulatory agencies with unparalleled authority to create regulation for foreign businesses that interact with U.S. financial institutions, sophisticated investors and high-net worth individuals. Applying such an aggressive approach — one that limits the operations of foreign organized entities transacting with U.S. financial markets — may cause the offshore banking institutions and the jurisdictions where they are organized to sit up and take notice.

Read the interview, “@Issue: What do we do about offshore banking?” in its entirety in app.com

Professor Lori Nessel in the Star-Ledger, cautions against linking immigration and crime

April 22, 2016

Salomon Rosendo Gomez-Serpas was deported to his native El Salvador from the U.S. in 2012. He returned to the U.S. illegally, and has now been accused of kidnapping and murder. Professor Lori Nessel, Director of the Center for Social Justice, and an expert on immigration law, said that if Gomez-Serpas is found guilty of these charges, “As an aggravated felon, he would be barred forever from entering the United States.”

Professor Nessel is quick to correct the false link people can create between immigration status and crime when they see situations like the Gomez-Serpas case. She said, “There's very quickly this association with, 'This person wasn't here lawfully,' and a linkage between that and crime. But what studies have shown is that correlation really isn't accurate.” The American Immigration Council’s data reports that 1.6% of male immigrants between the ages of 18 and 39 are incarcerated, whereas 3.3% of men in that age bracket who were born in the U.S. are imprisoned. The numbers show that immigrants are less likely than their native-born counterparts to be convicted of crimes.

Read the article, “Immigration detainer issued for Elizabeth murder suspect,” in nj.com

Dean Mark Alexander publishes an op-ed in The Record on the need for Congress to vet a Supreme Court nominee

February 21, 2016

Although Associate Dean Mark Alexander, a professor of Constitutional Law, often disagreed with Justice Scalia’s viewpoints, he does support and respect the late Justice’s legacy of fiercely protecting the Constitution of the United States. Which is why, in his op-ed, "Balking Senators are Breaking Their Oaths," he is dumbfounded by the Republican leadership’s refusal to confirm a Supreme Court nominee appointed by President Obama.

Writes Dean Alexander, “We do not suspend the Constitution because we are eleven months away from the next Presidential Inauguration.” And it is clearly stated in the Constitution that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.”

Dean Alexander holds that it is the utmost hypocrisy by these senators to say that they honor the memory of Justice Scalia while they refuse to execute their duties as elected officials under the rules of the Constitution. The people of the United States elected President Obama with a clear mandate to do the job of president, and there is ample time for the Senate to fulfill their duties as well. “At the average pace, the Senate could process five nominees before a new president is sworn in,” he writes. “The Constitution does not say that its rules are suspended in an election year. These obstructionist politicians may wish it, but it is not so.”

Dean Alexander concludes, “Obstructionists clamor to embrace the memory and legacy of Antonin Scalia, but they flaunt the Constitution that he fought so hard to defend.”

Read the op-ed, "Balking Senators are Breaking their Oaths," in The Record

Dean Mark Alexander on MSNBC discussing the issue of filling Justice Scalia’s seat

February 14, 2016

With the death of Justice Scalia, the question of his replacement – when the selection can be made, and who the nominees might be – quickly became a political hot button. President Obama has 11 months to go in his final term, yet the Republican leadership declared that the job of filling the empty Supreme Court seat should go to the next president.

On MSNBC Live, Dean Mark Alexander wondered, “ whether there is the political will to do what needs to be done on both sides.” He pointed out the simple fact that it is the president’s job to appoint a candidate, and it is the Senate’s job to give advice and consent. “If the Senate says we are not going to confirm anybody, they are not doing their jobs,” he said, “If [President Obama] puts someone forward, the Senate has an obligation to do something in response.”

Dean Alexander agreed that there is a tremendous amount of political pressure associated with selecting a Supreme Court Justice. The sheer length of the term alone – Justice Scalia served for three decades – makes politicians anxious to ensure the next Justice reflects their views. Also, a Justice exerts a great deal of influence on American conversations, and what direction the country will ultimately take.

Dean Alexander said, “Justice Scalia, he was talking about things that really mattered to him, that mattered to us,” Dean Alexander concluded. “Whether we agreed or disagreed, he was a lightning rod. And people need to stand up and ask, ‘What are we going to do next?’”

Watch the video, “The new era in Supreme Court nominations” on msnbc.com

Dean Mark Alexander on MSNBC explaining Republican candidates’ thin margin of error in the primaries

February 01, 2016

Dean Mark Alexander joined an MSNBC roundtable as an authority on the intersection of law, politics, and government, and also as a former advisor to President Obama. For the Republican candidates in Iowa, he stressed the importance of secondary support. The polls list voters’ first and second choices, and Dean Alexander makes the point that in a field as large as this one, being a second choice candidate is not bad. Commented Dean Alexander, “…Because once your candidate falls out, you have to move on to a second candidate. The staying power of that candidate is very important.”

Getting voters to turn out is also extremely important in a race with so many candidates. The Cruz campaign was actually reprimanded by the Iowa Secretary of State for running an aggressive campaign that implied that not voting was illegal. Dean Alexander explains why in a race like this one, getting every voter out – using ethical methods – is key. “That’s what’s so important in the Republican primaries – you have so many people. It’s going to be a question of a little margin here and there. It’s really going to matter – getting that last voter out.”

Watch the video, “Candidates make final pitches before IA caucus,” on msnbc.com

Professor Charles Sullivan in the Associated Press on a federal court ruling that may protect consumers facing foreclosure

January 24, 2016

Professor Charles Sullivan commented in the Associated Press on a federal court ruling in favor of a New Jersey resident who faced a debt collection demand for fees he did not owe. 

The resident foreclosed on his home in 2008, and then received a bill from a debt collector for $11,000, claiming he owed the money in homeowners’ insurance premiums, which he was able to prove he had paid. He sued the collection agency and its law firm for improperly attempting to collect payments, in violation of the Fair Debt Collection Practices Act. The law firm attempted have the suit dismissed but the judge ruled against it,

…writing last month that the firm ‘cannot evade its responsibilities as a debt collector by blaming its client for providing it with factually inaccurate information used in the process of collecting a debt.’

In short, law firms may be held liable if their debt collection clients' claims are incorrect. 

Professor Sullivan explained how people in dire financial straits might be susceptible to debt collectors’ demands:

‘Think of the psychological state of people going through foreclosure...They can't pay their mortgage and they think they're going to be in foreclosure. They're not looking at the papers, and if they are, whether it's $360,000 or $370,000, neither is a sum they can pay. They may not even seek an attorney. But attorneys in the past didn't have the tools this decision now gives them.’

The AP concludes, "Some experts see the ruling as a game-changer in foreclosure actions, which by their nature target people who are under emotional and financial stress."

Read the Associated Press article on ABCNews.com, “Debt Collectors Beware: Judge's Ruling Could Change the Game”

Dean Mark Alexander on stemming gun violence in our nation

January 07, 2016

Dean Mark Alexander, who teaches Constitutional Law, published an op-ed in the Star-Ledger applauding President Obama’s executive orders to help stem increasing gun violence in our nation, and explaining how the President acted within the authority of his position.

The primary impetus for President Obama’s orders, according to Dean Alexander, was Congress’s own failure to proffer solutions of any kind:

… despite the fact that 30,000 American die every year due to gun violence, extremists [in Congress] refuse...to pass measures most people agree on. And since nothing was done, the President stepped into the void and took action.

Dean Alexander summarized the President’s orders:

1. increased, and more thorough, background checks;
2. greater vigilance on the part of the Attorney General’s office to track violent offenders, gun traffickers, and others who try to skirt background checks to obtain guns illegally;
3. budget allocations to hire additional Bureau of Alcohol, Tobacco and Firearms agents and investigators to increase enforcement;
4. increased research and development of technology to prevent accidental discharges and the use of guns that are stolen.

Then, exhorting the opposition to “calm down,” Dean Alexander explained the Constitutional foundation of President Obama's decisions:

The president may mobilize federal agencies and officers in pursuit of the national interest...The seminal case in Constitutional Law on this subject backs up the president’s power to act on similar national matters if and when the Congress has failed to act. That’s both his prerogative and duty as president.

This is a perfect example of checks and balances, the underpinning of our republic. Congress may now act if it so chooses. If they act, then presumptions of the president’s authority may shift. Ultimately, the courts are open to those who read the Constitution differently...

The President’s plan respects individual rights. The Second Amendment is not under siege. I am a Constitutional Law professor; I love the Constitution and will always defend it. But no constitutional right is absolute, and the right to bear arms is no exception. There is room for modest regulation.

As Dean Alexander concludes,

Our Constitution was written in order to establish a more perfect union. A nation determined to reduce gun deaths is moving more closely toward that goal. The President’s action has brought us one small, but important, step forward.

Read Dean Alexander's Star-Ledger op-ed, "Calm down. Obama is right to use executive powers for gun violence epidemic"

Professor Margaret Lewis in South China Morning Post on the trial of human rights lawyer Pu Zhiquiang and its implications for China's judicial reform

December 14, 2015

Professor Lewis, an expert in U.S.-China Legal relations, reflected on the case of civil rights attorney, Pu Zhiquiang, and the damage the trial is doing to China’s legal reform efforts. 

Pu Zhiquiang was charged with “inciting ethnic hatred” and “picking quarrels and provoking trouble” because of statements he wrote in his microblog. Supporters of Pu Zhiquiang feel that his arrest is purely political. Comments Professor Lewis, “Selective prosecution of lawyers who peacefully use the legal system to defend citizen’s rights undermines the substantial progress that China has made to many aspects of its criminal justice system.”

China has made great strides in human rights, such as reducing the use of the death penalty, releasing more people on bail, and using measures to decrease coerced confessions. China still has a long way to go, however, and cases like this reflect a setback. Professor Lewis wrote, “Even a small number of politically motivated prosecutions can…destroy the accumulated goodwill of 99 justly decided ones.”

Read the article, “Unjust case of lawyer Pu Zhiqiang will in the end undermine China’s judicial reform” in scmp.com

Professor Michael Risinger in the New York Times on a new look at the science of forensics

December 12, 2015

When it became clear that certain forensic fields, like bite-mark matching, are unreliable, the National Commission on Forensic Science was created to ensure that forensic sciences that are used in the courtroom are scientifically valid. The Texas Forensic Science Commission is moving quickly to apply these new discoveries to real cases. Most recently the court overturned the conviction of Steven Mark Chaney, who was wrongly imprisoned for 28 years because of faulty bite-mark evidence.

Professor Risinger, an expert on forensics, appreciates the speed with which the Texas commission is attempting to right injustices and prevent future mistakes. Professor Risinger also acknowledged that changing how the legal profession uses forensic science is like, “turning a battleship.”

Read the article, “Lives in Balance, Texas Leads Scrutiny of Bite-Mark Forensics” in nytimes.com

Professor Linda Fisher in the Houston Chronicle on a rare victory for victims of mortgage fraud

December 09, 2015

When David and Mary Ellen Wolf faced foreclosure on their Texas home from Wells Fargo, a bank they had never done business with, they took it to court and won. Professor Fisher of the Center for Social Justice, and an expert in mortgage fraud, commented, "It's very unusual. Cases like this don't usually get in front of a jury."

The Wolfs were affected by “robo-signing,” a practice that enables banks to approve high volumes of mortgages to create mortgage-based financial instruments. The Wolfs won their case by citing a Texas law that prohibits fraudulent real estate filings. In their case, the inspector general found no records of the documents that are necessary to sign the Wolfs mortgage to Wells Fargo, even though Wells Fargo employees certified that they had personal knowledge of those documents.

The jury sided with the Wolfs, and awarded them $5.4 million. Although the verdict might be overturned in appeal, it is an unusual victory for homeowners.

Read the article, “Jury awards $5.4 million to couple after finding fraud in foreclosure case,” in houstonchronicle.com

Governors have no legal authority to refuse refugees says Professor Lori Nessel in NJ.com

November 17, 2015

Seton Hall's Center for Social Justice director, Professor Lori Nessel, was asked to respond to Governor Christie’s statement that he would not allow any Syrian refugees into the state of New Jersey. NJ.com sought her opinion as a leading expert on immigration and refugee law.

She said, "States can't decide how many refugees to allow in the country and they cannot close their borders. There is no power under the law for the governor to decide how many refugees to allow into the state."

For people who fear the refugees pose a security threat, she pointed out that refugees undergo a more thorough national security vetting process than traditional immigrants do. In the face of the Governor’s statement that he would refuse entry even to “orphans under the age of 5,” Professor Nessel raised the historical and ethical side of the situation. She said, "We're facing the biggest refugee crisis since World War II. These are people fleeing terrorism, civil war attacks. These are victims. Our humanitarian obligation is to protect refugees. That's always been our moral and legal obligation.”

Read the article, “Does Christie really have the authority to reject Syrian refugees?” in NJ.com

Professor Paula A. Franzese in USA Today on the 2015 State Integrity Investigation results

November 09, 2015

The results are in for the second State Integrity Investigation, conducted by the Center for Public Integrity and Global Integrity. The report notes a nationwide decline in ratings since 2012, partly due to more probing questions regarding “open data” policies, and also, due to reduced transparency at both the state and federal level. New Jersey was graded a “D” among all states – a precipitous drop from its “B-plus” grade three years ago.

In the USA Today article, “Secrecy, corruption and conflicts of interest pervade state governments,” Professor Franzese, former Chair of the Ethics Commission in New Jersey for three governors prior to Governor Christie, called the results “disappointing but not surprising.” Professor Franzese has served on several ethics reform commissions and has provided ethics advice to state and local governments across the country. She noted that funding for ethics oversight is limited, especially in tough financial times: “It’s not the sort of issue that commands voters.”

The State Integrity Investigation provided a scorecard for each state that measured data points across 13 categories including public access to information, political financing, electoral oversight, executive accountability, legislative accountability, judicial accountability, state budget processes, state civil service management, procurement, internal auditing, lobbying disclosure, state pension fund management, and ethics enforcement agencies.

Read the article, “Secrecy, corruption and conflicts of interest pervade state governments,” in usatoday.com

Professor Paula Franzese in the Asbury Park Press on the power of good manners

November 06, 2015

Feeling that rude behavior is overlooked and even valued in these technology-dominated and results-driven times, the Asbury Park Press asked five professionals to answer the question “Is there any hope for polite society making a comeback?” Professor Franzese, the Peter W. Rodino Professor of Law, answered the question in her section titled, “The remedy for bad manners is good manners.”

Professor Franzese posits that good manners are not dead; they are simply overshadowed by the loudness of rudeness. She feels that good manners begin at home, that when we model integrity, graciousness, kindness, respect, and social responsibility to our families and children, they will internalize these qualities and bring them into the world.

She also encourages us to model good manners in social media. “It’s time to shine a light on what we want to see more of and to loudly trumpet what is virtuous, noble and inspiring. We relegate hatefulness and thuggery to the margins by refusing to give it a platform.”

Professor Franzese holds that good manners show in our actions and our inactions. She concludes, “We have the power to restore dignity to any situation, by what we do and say and by what we decline to do and say. Generosity is its own form of power and its own reward. Kind words conquer.”

Read the article, “At Issue: Bad manners: Where did civility go?” on app.com

Professor Charles Sullivan talks labor and employment law Law 360

October 27, 2015

Professor Charles Sullivan, who has co-authored the nation’s definitive casebook on labor and employment law, provided some off-the-cuff responses in a question-and-answer session with Law 360. A sampling:

Q: What are the biggest changes you’ve seen in labor & employment law over your career?

A: Not to be flip, but pretty much everything . . . Generally speaking, the legal developments have been for the better in terms of workers’ rights, but … things often look more promising for employees at the 30,000 foot level than close up. There’s no better indication of that than persistent unemployment and underemployment and continuing wage stagnation.

Q: Where do you see the next wave of labor & employment cases coming from?

A: The fast-food worker progress regarding the minimum wage is remarkable and, hopefully, sustainable . . .Also, I expect that employee privacy rights will be increasingly litigated, even though success in that arena has been minimal to date. Finally, the apparent willingness of the federal courts to take Congress seriously in Americans with Disabilities Act Amendments Act suggests a continuing expansion of disability cases.

Q: What novel issues of labor & employment law or recent case law are you including in your curriculum?

A: Heck, there are novel issues every year. One . . . cutting edge issue — in an age where compliance is taken increasingly seriously — is the “manager rule,” which (under a variety of state and federal laws) would deprive human resources and other compliance officers of the whistleblower protection they would otherwise have.

Read Q&A with Seton Hall’s Charles Sullivan on Law 360

Professor Brian Sheppard: Disruption and Legal Practice

October 23, 2015

Technological innovations can replace human labor in many fields – valuable when a job is dangerous, monotonous, or requires precise manipulation of a vast amount of data. But do technological solutions have a place in the application of law? Bloomberg BNA interviewed Professor Brian Sheppard in September about his paper, Incomplete Innovation and the Premature Disruption of Legal Services, in which Professor Sheppard explores the likely outcome if artificial intelligence replaces human intellect in the field of law.

In the article, “Will Artificial Intelligence Favor Conservative Legal Theorists?” Professor Sheppard explains that computer programming is calibrated in specific ways to interact with human language, resulting in computers able to parse texts and extract meaning, but leaves them unable to interpret or discern nuance.

By legal philosophies or theories, Sheppard said he meant the different principles of adjudication that lawyers use when interpreting the law and the Constitution. His paper doesn’t identify any one philosophy with a political leaning, but Sheppard told Big Law Business that generally speaking, some conservative theories will likely be easier for computers to emulate because they are more black-and-white, with little subjectivity.

Professor Sheppard explains in his paper that computer language processing “is agnostic as to meaning; it essentially searches for matching sequences of characters and sorts based on distance between matching sequences within documents or based on match frequency.”

Therefore, artificial intelligence can, at least partially, apply Originalism, a conservative philosophy espoused by Justice Scalia, which holds that the Constitution has a fixed meaning. Artificial intelligence is not yet capable of applying the philosophy of Living Constitutionalism, which is a more liberal approach involving a larger consideration of current cultural priorities.

“My argument is that if lawyers are going to be replaced by computers … some of the more conservative [legal] theories may become more popular again because computers can do them quite well,” commented Professor Sheppard.

Bloomberg BNS took the impact of disruption one step further, asking Professor Sheppard if there is indeed a future for comprehensive legal services. In the article, “Will Human Touch Save Lawyers From Disruption?,” Professor Sheppard commented on a possible scenario in which legal experts are no longer necessary:

Using the travel industry as an example of an industry where [disruption] occurred, Sheppard noted travel agents used to book flights and provide personalized advice about where to stay and what to do at destinations. Those agents were replaced by online sites that can book flights but can’t offer advice about destinations.

Something similar could happen to the legal industry, he said, envisioning a scenario where the market for low-level legal services grows and the market for high level services disappears. One result would be the loss of human lawyers who come up with creative inventive solutions to problems, he said.

‘If the last few years have shown us anything, it’s how fragile the legal supply chain is,’ said Sheppard, referencing the high number of large firms that have collapsed…

If people agree that disruption is likely to occur, then the question is what to do about it.

'We need to start thinking about what’s going to happen to society,” he said.

Read the article, “Will Artificial Intelligence Favor Conservative Legal Theorists?” in Bloomberg BNA

Read the article, “Will Human Touch Save Lawyers From Disruption?” in Bloomberg BNS

Professor Paula Franzese: Inspiring Middle School Students

October 05, 2015

It’s not news that Paula Franzese, Peter W. Rodino, Jr. Professor of Law, is a gifted and acclaimed teacher of subjects like Property and Commercial law. Generations of Seton Hall Law students and law school graduates across the country know that. But it is news that blog SheKnows.com has recognized Professor Franzese in its post, “20 Inspiring Women Who are Transforming the Way Kids Learn.” While the post recognizes her many accomplishments as a law professor,

…we are highlighting her for a different kind of work. Franzese somehow finds time to volunteer-teach middle school students once a week at the Saint Catherine of Siena School (which both of her children attended).

The innovative extracurricular program in which Franzese has taught for the past 16 years aims to give kids “life skills” that they wouldn’t otherwise get in the classroom. ‘We talk about integrity, we talk about virtue, and social justice, and social media,’...

In her own words, she explains her motivation to us, ‘The law is the most powerful instrument. As lawyers, we are uniquely able to use the law to be agents of change, champions of the underdog, voices for those yet to find their own and givers of hope. Love is always the motive, and in the right hands the law can be love made visible.’

Read Professor Paula Franzese’s profile in the SheKnows blog post, “20 Inspiring Women Who are Transforming the Way Kids Learn”

Distinguished Professor of New Jersey Law and History, John B. Wefing’s book in top five must-reads for gubernatorial candidates in politickernj.com

October 01, 2015

Professor Wefing’s book, The Life and Times of Richard J. Hughes: The Politics of Civility, was chosen as one of the five books Alan Steinberg would recommend to anyone considering running for Governor of the State of New Jersey. Now a political science adjunct professor at Monmouth University, Steinberg was President Bush’s EPA Region 2 Administrator, and Governor Whitman’s Executive Director of the New Jersey Meadowlands Commission. Steinberg comments, “John Wefing, a most personable and brilliant professor of law at Seton Hall University School of Law, is indeed a New Jersey treasure: a magnificent legal mind and an incisive political analyst with excellent communications skills.”

Steinberg selected Professor Wefing’s book as a key read for candidates for two reasons: the subject – Richard Hughes was both “a great governor and an outstanding Chief Justice of the New Jersey Supreme Court” and Professor Wefing’s treatment of the subject – “Wefing chronicles his role in both pursuits most admirably while also describing vividly the personality that made Dick Hughes a beloved figure in both political parties.”

Read the article, “Five Recommended Books for Gubernatorial Candidates,” in politickernj.com

Star Ledger reports on Seton Hall Law’s participation in groundbreaking summit on homelessness in Hudson County

September 29, 2015

Dean Kathleen Boozang and Professor John Jacobi participated in The Waterfront Summit, the first conference on the homeless held in Hudson County, hosted by the Waterfront Project, led by Father Robert Meyer ’00, founder, and Elizabeth Caraballo ’07, Executive Director.

According to an annual tally, 917 people from 728 households were counted as homeless in Hudson County in February 2015. The number jumped 11.7 percent from the 821 homeless people from 627 households that were counted in 2014.

Dean Boozang moderated discussions among a panel of experts who explored solutions for community action. Professor Jacobi participated in a panel discussion on issues related to national health policy, and illuminated the ways in which healthcare policy is at the crux of the solutions for homelessness.

Watch Professor John Jacobi discuss his role in The Waterfront Summit

Read the Star-Ledger story, Hoboken nonprofit hosting summit on homelessness in Hudson County

Professor Michael Simkovic weighs in on the use of credit card microchips in the Los Angeles Times

September 27, 2015

New microchip technology is replacing magnetic strip reading for credit card transactions in the U.S. The hope is that it will reduce credit card fraud by making forgeries more difficult to create, and easier for vendors to authenticate cardholders. The credit card industry has announced that as of October 1, 2015, the liability for counterfeit credit cards will fall on the party who has not adopted the chip technology – either the credit card issuer, or the merchant who will need the new reader. Professor Simkovic, a recognized thought-leader in credit card reform, commented, “To the extent that this cuts down on fraud, it’s probably a win for everyone.”

Over the last 15 years, most of the world has adopted the chip technology, and has seen their credit card fraud drop drastically. During that time, credit card fraud has doubled in the U.S. Part of the European drop in fraud may be attributed to their use of a chip card plus PIN number. However, Professor Simkovic points out, “If you’re entering your PIN number in more places, there also are more opportunities for it to be stolen.”

Read the article, “This week, credit cards with chips are to become the standard,” in latimes.com

Professor Stephen Lubben in PolitFact regarding presidential candidate Donald Trump's bankruptcy record

September 22, 2015

As the top-ranked Republican presidential candidate, Donald Trump, is hounded by his toughest critics -- his fellow candidates -- Professor Stephen Lubben was asked to help assess whether contender Carly Fiorina was telling the truth when she denounced Trump's four corporate bankruptcies as products of financial mismanagement. In the article, "Fact-checking claims about Donald Trump's four bankruptcies," the reporter writes,

Trump’s four bankruptcies all happened within the past 25 years. That’s a lot, said Stephen Lubben, a leading expert in corporate finance and professor at Seton Hall School of Law. But to be fair, the gaming industry has been struggling the past few years, he added, and three out of four of Trump’s bankruptcies were tied to casinos.

The writer concludes that filing for Chapter 11 bankruptcy of the federal bankruptcy code might be a wise business decision, as Trump claims, but as the CEO, Trump must also bear some of the responsibility.

Read the full story, "Fact-checking claims about Donald Trump's four bankruptcies," in the Tampa Bay Times' Politifact.com.

Professor Michael Simkovic blogs in the Washington Post on the best time to go to law school. The answer? ‘Now.’

August 28, 2015

Professor Michael Simkovic and Professor Frank McIntyre, an assistant professor of finance and economics at Rutgers Business School, co-authored a blog post in the Washington Post’s “Answer Sheet,” entitled, “Is there a ‘right time’ to go to law school — and if so, what is it?”

Their previous research on “The Economic Value of a Law Degree” found that a law degree typically boosts earnings by around $30,000 to $60,000 per year compared to a bachelor’s degree.

Their latest research considered whether this boost to earnings depended on economic conditions at law school graduation.

They found that although graduating conditions have an impact for the first few years, recessions and booms are not predictable 3 or 4 years in advance, when law students have to decide whether or not to matriculate. Waiting for conditions to change to attend law school is therefore a losing strategy:

Delaying law school will not improve the likelihood of graduating into a booming economy. But it will shorten the number of years of higher post-law school earnings, and increase the number of years of lower earnings with just a bachelor’s degree. A year or two in the labor force working in a field like law, finance, insurance, real estate, or government may be helpful to figure out whether law school seems like a good fit. But each year of delay will cost on average around $31,000. The optimal strategy to get the most out of law school financially is to go to law school as soon as possible after deciding that you eventually want to go to law school.

The professors also note that overarching employment trends, such as increased automation in the workplace, is actually to the advantage of college graduates:

Post-WWII technological advancement and globalization have tended to boost the marginal productivity and earnings of highly skilled, educated workers while eliminating the most tedious aspects of their jobs. Those with less education are vulnerable because the tasks they perform are more routine and therefore easier to automate or outsource. Globalization and changes in technology increase the value of education over time.

They also offer this observation, based on their research:

Predicting the future is always perilous, but if long-term trends are predictive, the future probably won’t be just like the past. The future will be better. At least for those who are highly educated.

Read the Washington Post’s “Answer Sheet” blog post, “Is there a ‘right time’ to go to law school — and if so, what is it?”

Professor John Jacobi on NJ.com regarding the state’s role in determining the future of troubled Saint Michael’s hospital

August 24, 2015

Saint Michael’s Medical Center, after struggling financially for years, has been waiting for two and a half years on the state’s approval to sell to Prime Healthcare Services of Ontario, CA. Saint Michael’s recently filed for bankruptcy in the hopes that it would hurry the state’s decision along. Now, however, other bidders, including Barnabas, have expressed an interest in buying Saint Michael’s. This has caused some concern and legal action by the brokers of the original deal.

Professor Jacobi, Director of the Center for Health and Pharmaceutical Law, pointed out that no matter what legal wrangling Saint Michael’s and all its suitors do to protect their interests in the sale, the ultimate decision maker is the state. The health commissioner’s mandate is to determine what course of action best serves the people of Newark. Professor Jacobi explained, "We want people to be able to get to the hospital and for it to be close enough so they can get there and feel safe. But it is not an inconsequential cost to maintain hospitals."

A health economist consultant reported that there are too many hospital beds in the Newark area. This is not cost effective from a building maintenance perspective and also “fragments the talent pool" of health care providers. The report suggested that Saint Michael’s might better serve the community as an outpatient facility. Professor Jacobi commented, "Whether closing Saint Michael's furthers that interest in maintaining quality and keeping costs at a reasonable level, I don't know."

Read the article, “Barnabas and Newark hospital avert clash in bankruptcy hearing,” on NJ.com

Professor John V. Jacobi, the Dorothea Dix Professor of Health Law & Policy, and the Faculty Director of The Center for Health & Pharmaceutical Law & Policy, in NJSpotlight.com on the factors affecting Saint Michael’s hospital’s bankruptcy filing and poss

August 11, 2015

Saint Michael’s Medical Center, a not-for-profit hospital in Newark, has filed for Chapter 11 bankruptcy. Saint Michael’s has been operating on a significant loss for years, and has applied to the state to allow Prime Healthcare Services, a for-profit hospital chain based in California, to buy Saint Michael’s. The state has been conducting a Certificate of Need (CN) process for the last two and a half years, and the hope is that the bankruptcy will speed the process along.

Professor Jacobi noted that the CN process is not the only review the hospital must pass before state officials can allow the sale to go forward. The attorney general, consulting with the state health commissioner, must determine whether converting Saint Michael’s from a nonprofit to a for-profit will serve the public interest under the tenants of the Community Health Care Assets Protection Act (CHAPA).

The due diligence that must occur to protect the community the hospital serves is time consuming, but necessary.

Read, “With bankruptcy filing, Saint Michael’s opens up new front in battle over sale,” in NJSpotlight.com

Professor Mark Denbeaux on "Due Process" regarding Mohamedou Slahi

July 25, 2015

Professor Mark Denbeaux, Director of the Center for Policy & Research, appeared as a guest on Thirteen WNET/NJTV's legal affairs show, Due Process, along with Hina Shamsi, Director of the ACLU National Security Project. They discussed the controversial book, Guantanamo Diary, published by detainee Mohamedou Slahi, who has been held for 13 years at GTMO. Though Slahi was cleared for release in 2010, he has yet to be permitted to leave.

Show host Raymond Brown asked Professor Denbeaux how he believes President Obama's administration must view their role in the perpetuation of the detainment camp, despite the President's stated view that Guantanamo must be closed. Professor Denbeaux responded:

I was talking with a member of the Justice Department who was opposing habeas, and I asked him, 'When your grandchild asks you, what did you do in the global war on terror, what will you tell him?' and his answer shocked me: 'I was doing my job.' The Justice Department, before 2008, had the same people in it after 2008... They were applying the same rules of law, the civil procedure rules. I actually concluded they perceived that it was their job to be precise, elegant and careful in their lawyering, with no regard to whether what they were doing actually got people released.

Professor Denbeaux expressed confidence that Guantanamo Diary will help secure Slahi's release, but Professor Denbeaux believes that many of the remaining detainees will never benefit from due process: "The real problem is the lost ones, who are viewed as dangerous, who don't have good lawyers, who are missing. They may never get out."

Watch the Due Process broadcast, "Guantanamo Diary," on NJTV

Professor Stephen Lubben blogs for the New York Times Dealbook on the multinational woes of an unfinished resort hotel in the Bahamas >>

July 21, 2015

In a Dealbook blog post, Professor Lubben describes the extremely unusual bankruptcy filing involving Baha Mar, a $3.5 billion beachfront resort development in Nassau, bankrolled by a consortium of companies:

It makes perfect sense, of course, that a fight between a Bahamian resort and a Chinese-owned construction company, being litigated in London, would end up in the United States Bankruptcy Court in Delaware.

Baha Mar’s owners have filed a suit in London against its construction company, a subsidiary of China State Construction Engineering Corporation. And among the Bahamian resort’s owners is Northshore Mainland Services, a company incorporated in Delaware with its address in Florida – hence the bankruptcy filing in that state.

Meanwhile, the Bahamian government has filed a petition to take control of the project. It remains to be seen which court will prevail. According to Professor Lubben:

The Delaware court has a claim on being the first court to handle this issue, but the court in the Bahamas might argue that all of the real estate of interest is under its jurisdiction.

This is increasingly looking to be a fight between the Bahamian government and the property developers. That will make it harder for the Delaware court to continue to play a role, especially given that the Delaware court will never have jurisdiction over the government of another country.

Read the New York Times Dealbook blog post, “A Complex Bankruptcy Case, With Baha Mar and a Chinese Contractor, Lands in Delaware”

Professor Farrin Anello in the Star-Ledger on the impending New Jersey Supreme Court decision regarding the fate of abused juvenile immigrants in the U.S.

June 29, 2015

The Star-Ledger reported on an impending decision to be issued by the New Jersey State Supreme court regarding the deportation of a 15 year-old Indian boy. This decision will set a precedent for 500 to 700 other children in New Jersey who are fighting a similar battle to stay in the U.S.

The Supreme Court will decide whether the child would have to prove abuse, neglect, or abandonment by one or both of the parents in order to win special immigrant juvenile status. Children have been granted this status in California, Minnesota, and New York based on abuse from one parent.

Professor Anello of the Seton Hall Law Center for Social Justice was interviewed as a specialist in immigration issues. "This is a very important decision because there are many children out there who are fleeing abuse, abandonment or neglect by one parent whose lives would truly be in danger if they are sent back to their home countries," she said.

Professor Anello also noted that these children, some of whom have been physically abused at home, and others who simply lack adult protection, are vulnerable to gang violence and human trafficking.

In the case of the 15 year-old boy, he was clearly abandoned by his father. The boy’s sickly mother allowed him to work 75 hours a week to support his family until he was injured on the job, at which point she sent him to New Jersey to live with his uncle in Passaic County. The Trafficking Victims Protection Act of 2008 states that a child should receive special immigrant juvenile status if "reunification with one or both of the immigrant's parents is not viable."  

Read the article, “N.J. Supreme Court case to decide fate of abused immigrant children,” in the Star-Ledger online at NJ.com

Professor Brian Sheppard publishes an op-ed in the New York Times’ International edition

June 25, 2015

Professor Brian Sheppard consulted to the government of Honduras in 2011 in the wake of a crisis in 2009, in which President Zalaya was removed from office for questioning a inviolable law requiring a four-term limit for his office. In April, the Honduran Supreme Court overturned the law, effectively negating term limits entirely and paving the way for potential dictatorships, which have plagued Honduras and other countries in Latin America. His op-ed, "Why Honduras’s Judiciary Is Its Most Dangerous Branch," appears in the International edition of the New York Times. He notes,

The Honduran Constitution — which limited presidents to a single four-year term — includes an extraordinary provision that makes the term limit unamendable by any process whatsoever and mandated harsh penalties for any politician who tried to change it…

But what has occurred is precisely what the Constitution’s drafters feared. A seemingly unassailable portion of the document, intended to guard against political manipulation, has been subverted by judges at the behest of politicians. Now, politicians from the conservative National Party who brought the case — and any future political leader — are in an ideal position to hang on to power indefinitely.

Read the Op-ed, "Why Honduras’s Judiciary Is Its Most Dangerous Branch," in the international New York Times

Professor Paula Franzese on the New Jersey Capitol Report on ethics laws surrounding politicians accepting gifts

June 22, 2015

Steve Adubato and Rafael Pi Roman interviewed Professor Franzese as one of the country’s leading experts on government ethics. With both Governor Chris Christie and Senator Robert Menendez in the news regarding allegations of receiving unethical gifts, Roman asked Professor Franzese if New Jersey merits the national reputation of having a corrupt government.

Professor Franzese answered, “Wholeheartedly, no.” She emphasized that New Jersey is not the corruption capital of the world, but in fact has a solidly ethical government. “Consistently, in U.S. Justice Department Reports, we rank as a good government state,” She said. “Just two years ago, the Center for Public Integrity – for the second time in a row – ranked New Jersey number one for best practices in good government.” She said that the state’s ranking is due to its excellent uniform ethics code, which is a model for the nation: “I’ve helped jurisdictions from as far away as Alaska and as nearby by as Ohio redress certain deficiencies in their ethics codes based upon the anatomy of New Jersey ethics reform.”

According to Professor Franzese, as effective as the laws may be, reputation is driven by how effectively our custodians of the law uphold the laws, as well as public perception. In the case of the gifts in question, Professor Franzese explained that the law allows politicians to accept gifts from family members and intimate associates, but not from people who do or have done business with the state. “That’s where one gets into the often very toxic collision of money and politics and that’s where the public trust gets shaken,” she said. Government officials accepting undisclosed gifts from business associates violates both the letter and the spirit of the law.

Professor Franzese emphasized that these allegations are only allegations, and that any unethical behavior is on the part of a tiny fraction of New Jersey’s government officials. She said, “When we wrote our ethics report, we dedicated it to those who labor in the trenches of government. They endeavor, as public servants, to do the right thing. Even in the most difficult of circumstances. They are good people, and their effort and resolve deserves to be honored at every level of government. And their commitment, their valor, deserves to be written about.” 

Read, “Which Gifts to Politicians Are Legal?” in the Star-Ledger online at NJ.com and watch the video on “New Jersey Capitol Report”

Dean Designate Kathleen M. Boozang in the National Law Journal

June 19, 2015

The National Law Journal reports on the marked rise in the number of women who are serving as deans of law schools over the past few years. In 1998, there were 14 female law school deans in the ABA. Today, there are 59, comprising 30% of all law school deans in the U.S. Eleven of the 28 deans who will begin new deanships this summer are women, including Dean Designate Boozang.

Seton Hall Law was founded by a woman, Miriam T. Rooney, who served as dean from 1951 to 1961. She was not only Seton Hall’s first female dean, but was in fact the first woman dean at an accredited law school in the U.S. “For our faculty, it's a point of pride and not a phenomenal thing to have a women dean," said Dean Boozang. She is Seton Hall Law’s third female dean. Professor Elizabeth Defeis served as Dean from 1983 to 1988.

The article points to some underlying trends affecting women in the dean’s role, noting that most come from within the academy and have risen through the ranks – chairing committees, serving as interim or associate deans, for instance. In addition, all deans face similar challenges in today’s legal education environment, calling for deans to exercise strategic thinking and resourcefulness:

Law schools used to emphasize scholarly research in dean searches, Boozang said…Today, with enrollment down and budgets strained, search committees look for a broader skill set...

‘Deans have to do a lot of hard things these days,’ Boozang said. ‘Their schools might, for example, decide they need to right-size. In some instances, you're looking for a combination of the soft skills to do hard things in a humane way.’

Read the article, “Female Deans Taking Charge” in nationallawjournal.com

The Last Resort Exoneration Project in the Star-Ledger

June 14, 2015

Star-Ledger investigative reporter Sean Sullivan presents an in-depth and interactive two-part feature on the cases of Kevin Baker and Sean Washington, imprisoned for 20 years for a double murder, and the work of Seton Hall Law’s Last Resort Exoneration Project to prove their innocence.

Professor Lesley C. Risinger founded Last Resort in 2011 with her husband, Professor Michael Risinger, one of the nation's preeminent authorities on innocence, evidence, and proof. Lesley Risinger has been instrumental in securing the exoneration of two men previously; in the first case, in partnership with her mother and in the second, in tandem with her husband.

In the case of Baker and Washington, Professor Lesley Risinger sums up her conclusion simply: "The facts show that they're both innocent." Professor Michael Risinger concurs: “They were victims of a total breakdown of the criminal justice system at every point.”

In the early morning hours of January 28, 1995, Rodney Turner and Margaret Wilson were shot dead in a Camden neighborhood. The only evidence used to convict Baker and Washington of this crime was the testimony of a drug addict who had admitted to smoking crack cocaine a few hours prior and was only outside at the time of the killings to buy more crack. She claimed that the two men each had a gun and each shot one of the victims. Washington’s original attorney suspects that Baker’s and Washington’s speedy conviction of these murders, despite the prosecution’s weak case, is due to political pressure to resolve those murders quickly, enabling authorities to explain the spike in homicides in Camden that January as the work of isolated madmen on a killing spree.

The Last Resort Exoneration Project has uncovered a great deal of evidence that the two men were not involved in the murders. They have also secured assistance from defense attorney Joseph Fortunato ’81, who is representing Sean Washington; former prosecutor James Gerrow; ballistics expert Lucien Haag; and forensic pathologist Michael Baden.

The Star-Ledger provides readers with access to much of the evidence Last Resort has gathered in defense of Baker and Washington, including recordings of witness testimony, letters written, and orders issued. The Risingers have demonstrated, for example is that the voice recorded in a desperate call to 9-1-1 recording belonged to Washington, who discovered the bodies. Baker had a reliable alibi placing him at home with his girlfriend at the time of the killings. The prosecution would not allow his girlfriend to be deposed; as the Risingers continued to fight for the right to secure her deposition, she died of breast cancer. Also, the forensic evidence establishes that, contrary to what the sole eyewitness testified to, the female victim was shot as she lay face down on the ground and furthermore strongly indicates that only one gun was used in both killings, and that there was no second shooter.

When the professors bring the case before Judge Samuel Natal, the same judge who presided over the original trial, they will present new evidence in the case. They will demonstrate that Baker and Washington received ineffective assistance of counsel and that their constitutional rights were violated. Most important, however, is their “claim of actual innocence” which should ultimately serve to release the men from prison. As Professor Michael Risinger commented, "Anybody who challenges their conviction faces this uphill battle. But the system owes anybody making a credible claim of innocence an honest evaluation."

Read Part One, “A double murder. Life in prison for 2 N.J. men. But did they do it?” on NJ.com

Read Part Two, “Inside the fight to free 2 N.J. men serving life for murder” on NJ.com

Professor Jonathan Hafetz publishes an op-ed in the Sunday edition of The Record about new restrictions on the government’s ability to collect and retain phone records of Americans

June 07, 2015

Professor Jonathan Hafetz’s op-ed in The Record, “With new NSA rules, a shift in balance between security and privacy,” questions whether the latest modifications to the Patriot Act, voted on last week by Congress, go far enough in restricting the government’s right to collect phone records of all Americans. "It remains to be seen whether the act is an isolated victory for privacy or the first step in a larger process of surveillance reform.”

As Professor Hafetz explains, the USA Freedom Act modifies Section 215 of the USA Patriot Act, passed in the wake of the terrorist attacks of September 11, 2001:

Under that program, the government has been collecting the metadata — including the number a person dials, and the time, date and length of those communications — of every call made in the United States. It can then search the database by querying it with specific telephone numbers. While the program does not allow the government to listen to the actual content of those calls, advances in technology now enable the government to learn a great deal about a person’s private life simply from metadata…The government relied on this provision to engage in the dragnet collection of phone records on the theory that those records might one day be relevant to an actual investigation.

The American public began to demand modifications to Section 215 in 2013, when former NSA contractor Edward Snowden “pierced the veil of secrecy” and exposed the extent of the government’s surveillance practices. The backlash caused Americans to demand greater privacy protection, sparking Congress to take action. Professor Hafetz also cites the assertions of the Privacy and Civil Liberties Board, independent watchdog agency that the program is both illegal and essentially ineffective, as well as rulings in the 2nd U.S. Circuit Court of Appeals, “the second court to declare the Section 215 program illegal, ruling that Congress had not authorized the bulk collection of telephony metadata.”

Professor Hafetz appreciates the modifications made to Section 215 and as he comments,

More significant than any particular change is the fact of reform itself. Despite the fear-mongering that surrounded the debate in Congress — including false claims by intelligence officials that the nation would be less safe without the Section 215 program — a majority in both houses held firm in demanding that the president’s surveillance authority be limited. After continually titling the scales in favor of security since 9/11, Congress finally sought to include protections for civil liberties in the balance.

However, he cautions Americans against believing their personal privacy has been protected entirely: “The act does not end the bulk collection and storage of Americans’ phone records, but instead alters the manner in which those records will be stored and accessed.” 

There are additional bulk data collection programs untouched by the USA Freedom Act that are nominally aimed at communications among foreign nationals but that still “end up sweeping in the communications of many Americans.”

Professor Hafetz concludes,

For now, the USA Freedom Act may have been the most civil libertarians could reasonably have expected from Congress. But the act’s passage will mean little if it is the summit rather than the start of reform. The question now is whether the momentum gained during the battle over Section 215 helps lead to more comprehensive surveillance reform...If the momentum from the Section 215 debate is not carried forward, the much-heralded USA Freedom Act will have failed in its attempt to halt the ongoing erosion of privacy in America.

Read Professor Hafetz's op-ed in The Record, “With new NSA rules, a shift in balance between security and privacy”

Professor Stephen Lubben blogs for the New York Times Dealbook on the Supreme Court’s decision to stand firm on the bankruptcy code, providing no relief to underwater homeowners

June 01, 2015

In his Dealbook blog post, Professor Lubben explains the rules and the history behind the Supreme Court’s ruling that the bankruptcy code under Chapters 7 and 13 – the chapters that individuals usually file under – would not permit lein-stripping even when an unsecured loan is higher than the value of the collateral.

This is good news for banks. Professor Lubben remarked, “Big Financial institutions can breathe a bit of a sigh of relief, knowing that the court has not forced a day of reckoning on billions of dollars of underwater second mortgages that debtors would like to rid themselves of in Chapter 7 bankruptcy.”

However, it is bad news for debtors, and Justice Clarence Thomas suggested that perhaps the rules should change to help them. Professor Lubben commented, “So homeowners continue to have no easy way out of the mortgage crisis. Financial institutions might eventually have to provide one, if they ever want to move on… As long as homeowners continue to struggle with their mortgages, especially second mortgages that were given with a pretty clear understanding of the risks, they are not likely to let the big banks forget that.”

Read the New York Times Dealbook blog post, “Supreme Court Ruling Little Help to Struggling Homeowners”

Seton Hall Law #8 in the Northeast for Employment Rates for Class of 2014 According to Bostinno.com

May 04, 2015

With the ABA employment data for the Class of 2014 released to the public, Seton Hall Law has received extremely favorable rankings.

Among Class of 2014 graduates, within 10 months of graduation, 83.5% landed in jobs that either required passage of the bar exam, or for which a J.D. degree is considered an advantage.

The National Jurist places Seton Hall Law at #36 nationally, and BostInno.com ranked Seton Hall Law #8 among 41 law schools in the Northeast, noting,

Seventy-one percent of [Class of 2014] graduates were able to land long-term full-time positions (for which candidates with law degrees were preferred) within 10 months after finishing school — up from 67 percent who were employed within nine months for the class of 2013.

Seton Hall Law’s Class of 2014 achieved a rate of 86.7% for full-time long-term jobs in which bar passage is required or a J.D. is an advantage, with a total employment rate of 93.3%. Among schools in the Northeast region, Seton Hall Law is one of only eight schools ranked among the Top 50 nationally.

As Bostinno.com concluded, “For those concerned about securing employment after graduating, it’s certainly worth considering this ranking.”

Read "41 Schools in ithe Northeast, Ranked by Graduate Employment" in Bostinno.com

Read "Employment Up..." in the National Jurist

Professor Michael Simkovic’s study cited in New York Times Dealbook blog post on changes for the positive taking place in legal education and legal employment

March 31, 2015

Professor Michael Simkovic sparked controversy with a study he co-authored with Professor Frank McIntyre in 2013, finding that law school is an investment that, over the course of a career, yields a present value of $1 million in additional earnings for law graduates compared to similar college educated individuals who never attended law school. In 2014, that study was published in the peer-reviewed Journal of Legal Studies at the University of Chicago.

A second working paper, posted online this March, “Timing Law School,” demonstrates that a law degree effectively positions graduates to weather even the most challenging economic circumstances no matter when they choose to attend law school. The paper was supported by a grant from the Access Group, Inc., a non-profit student lender, and the Law School Admissions Council.

In a New York Times Dealbook blog post published on March 31, Professor Steven Davidoff Solomon of the University of California at Berkeley asserts that Professors Simkovic’s and McIntyre’s findings may very well be on the mark. “A new study…provides a compelling reason to be optimistic about a career in law,” Professor Solomon writes.

The post, “Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom,” provides an overview of the positive changes taking place in legal employment such as increased revenues among top firms and a growth in lateral hiring for lawyers in New York. If the trend continues, the shift in employment, coupled with the trend of smaller graduating law school classes, should lead to more opportunity for aspiring attorneys in the coming years. Professor Solomon writes about “Timing Law School,”

The co-authors found that unemployment in a bad economy hit lawyers in the first four years of their career, lowering the amount of money they made relative to similarly educated people who did not go to law school. Yet law salaries can climb rapidly. In another paper, the two authors found that such acceleration in compensation results in a premium of $1 million for lawyers over their lifetime compared with those who did not go to law school. Based on this growth and the ability to eventually find lucrative employment, the two authors found that over a 30-year period, the hit from early unemployment and a bad economy fades as times get better and graduates gain experience. Indeed, the lawyers caught up so much that the two found that “timing” law school — starting law school in a bad or good economy — did not matter.

A second study by the American Bar Foundation underscores this optimism:

The foundation’s After the JD project surveyed lawyers who passed the bar in 2000 to assess their career trajectory 10 years after graduation. The foundation found that as of 2012, lawyers had high levels of job satisfaction and employment as well as high salaries. Even graduates with low grades from low-ranked law schools had median incomes in the $85,000 to $95,000 range. This follows the fact that law firm salaries have risen by more than inflation since 1995, according to the National Association for Law Placement.

How is the legal industry changing? Professor Solomon sees an increasing need for compliance as industries become increasingly regulated, noting, “…corporate in-house legal teams are growing, replacing the work that outside firms once did. Microsoft, for example, has more than 500 in-house lawyers.” Yet, he concludes, over the long term, “Twenty years from now, whether the economy is up or down, there will still be lawyers, and plenty of them.”

Read the New York Times Dealbook blog post, “Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom”

Professor David Opderbeck, on Marketplace on Cybersecurity

February 13, 2015

At his Summit on Cybersecurity, President Obama asked some of the biggest companies in Silicon Valley to share more information with the government. While it would benefit both those companies and the government to know who has launched cyber attacks against whom, sharing information infringes greatly on the privacy of individual American citizens. Business radio show, Marketplace, interviewed Professor David Opderbeck regarding the potential for lawsuits in the face of violations of individual privacy. Professor Opderbeck commented, “The tension between security and privacy and property rights is really acute.”

Additionally complicating matters is the issue of cross-national cyber attacks. Most of the U.S. information infrastructure is held by private companies, so if one U.S. company hacks another, the legal process is somewhat straightforward. The waters are muddied when a U.S. company becomes the victim of a cyber attack from another country, an attack that would be in our government’s hands if it were to happen on our physical shores.

Read the article, “Cybersecurity: Mr. Obama goes to Silicon Valley,” in marketplace.org

Listen to the podcast of the radio program, “Marketplace for Friday Feb. 13, 2015” in marketplace.org

The Center for Policy & Research featured prominently in new book, Murder at Camp Delta

January 19, 2015

Sergeant Joseph Hickman's new book, Murder at Camp Delta (Simon & Schuster) is out on the shelves and is reigniting the debate about the value and abuses that have taken place at the detention camp at Guantanamo Bay. Sergeant Hickman, now an Adjunct Professor at Seton Hall Law, worked diligently alongside the student Fellows of the Center to determine what happened the night of June 9, 2006, when three detainees at Guantanamo died under mysterious circumstances. Though the deaths were publicly identified as suicides, Hickman’s eyewitness account, and the government’s own documentation about the incident, reveal a different truth.

Hickman’s story is now the subject of multiple feature stories and broadcasts:

On January 15, Newsweek published a cover story, “To Live and Die in Gitmo,” summarizing the book and how Hickman came to find Professor Mark Denbeaux, the Director of the Seton Hall Law Center for Policy & Research and their first encounter:

‘First, I thought it was a lunatic calling me,’ Denbeaux says, reclining in the plain, windowless room that serves as the epicenter of Guantánamo research at Seton Hall…Two days later, Hickman was on an airplane headed for Newark.

Read, “To Live and Die in Gitmo,” the cover story in Newsweek

On January 19, Hickman talked with Aasif Mandvi, standing in for Leonard Lopate on his weekday show, NPR affiliate WNYC, and gives an example of the discrepancies in facts that characterize the entire incident of the deaths at Camp Deltal.

Mandvi read to Hickman the Camp Commander Colonel Baumgartner’s rebuttal to Hickman’s assertions of the events that took place the night the detainees died. “He responded angrily to you, and said, ‘This blatant misrepresentation of the truth infuriates me. I do not know who Sergeant Hickman is but he does not know anything that happened at Camp One or the medical facilities. I know what happened and I was there.’ Was the Colonel telling the truth?”

Hickman replied, “No, he wasn’t there that night…If you go through the NCIS report, [Colonel Baumgartner] makes a sworn statement that he was not at the Camp that night.”

Listen to “Investigating Suicides at Guantanamo Bay” on the Leonard Lopate show on WNYC.

Read Joseph Hickman’s synthesis of his book in the January 16 issue of UK’s Daily Mail, “Murder in Guantanamo: As Cameron calls on Obama to release Londoner held for 13 years without trial, former guard claims his colleagues brutally murdered three inmates”

Read the New York Daily News article from January 17 about Murder at Camp Delta, “Guantanamo Bay staff sergeant claims three men believed to have committed suicide were actually tortured to death”

Professor Jenny-Brooke Condon, ‘03 associate professor of the Center for Social Justice in The Record on the CIA Torture Report

December 17, 2014

Professor Condon wrote an op-ed in The Record after examining the CIA’s report on Torture. She criticizes the CIA both for torturing detainees, and for abusing the laws of secrecy which allowed the brutality to continue. The CIA used secret prisons to conduct torture without interference from the Red Cross, Congress, the State Department, and other policy makers. And they hid it from the American public under the false guise of state secrecy, and to protect the CIA’s “methods.”

Writes Professor Condon, “For too long, details of these horrific crimes were illegal secrets – unlawful acts by government actors shielded from the American public, not for legitimate security reasons, but to prevent exposing patently illegal and immoral conduct to legal and public censure.”

Professor Condon calls for accountability and reform to keep this and any other government agencies from cloaking unspeakable acts in secrecy “to prevent the recurrence of similar unnecessary, illegal, and un-American abuses.”

Read the article, “Opinion: The Senate Torture Report: the revealing of illegal secrets,” in NorthJersey.com.

Professor Rachel Godsil, the Eleanor Bontecou Professor of Law, blogs for Psychology Today: New report on reducing racial anxiety

December 14, 2014

Racial anxiety can look like racial bias and can unwittingly perpetuate inequality. Even people who want to treat others equally and respectfully can behave awkwardly when concerned about how they may be percieved by someone of a different race. Writes Professor Godsil, “In the context of race, this concern can be particularly acute as people of color worry that they will be the target of racial bias and whites worry that they will be misunderstood or assumed to be racist.”

In the report "Addressing the Impact of Implicit Bias, Racial Anxiety, and Stereotype Threat in Education and Health Care,” Professor Godsil provides a real-world illustration of how this can play out. "We live in a time when discrimination looks less like a segregated lunch counter and more like a teacher never calling on your son or a doctor failing to inspire trust in your daughter and improperly diagnosing her illness as a result."

The good news is that racial anxiety can be reduced with cooperative learning strategies, and both direct and indirect positive interracial experiences. The more people are empathetic and willing to interact with people of other races, the more progress this nation will make toward racial equality.

Read the article, “Racial Anxiety Can Perpetuate Racial Inequalities” in psychologytoday.com

Professor David Opderbeck in The Record on recreational drones and the privacy issues they raise

December 07, 2014

Drones, originally used for state-of-the-art military surveillance, have now become available and affordable for the average consumer. But irresponsible or malicious operators cause significant problems. For instance, drones have flown into off-limits airspace, causing near-misses with passenger aircraft.

Drones can also raise issues of privacy: the on-board cameras can provide the pilot with aerial views of their neighborhoods or even give the pilot a first-person view while flying – and enable their pilots to look into their neighbors’ back yards or bedroom windows, for instance. “It certainly has eroded our privacy because it erodes our expectations of privacy,” Professor Opderbeck said.

As time goes on, new rules about how and where drones can operate will have to be created. Professor Opderbeck commented, “It’s a significantly unregulated space. I think the issue is already being forced.”

Read the article, “Drones on many holiday wish lists, raising concerns,” in NorthJersey.com

Dean Mark C. Alexander, publishes op-ed in the Star-Ledger supporting the legality of President Obama’s executive order on immigration

December 03, 2014

President Obama bypassed Congress and used executive action to make immigration reforms. Congress examined myriad proposals over the last few years, but has been unable to agree on any reforms. While some feel that the President has overstepped the boundaries of his office, Dean Alexander supports the decision as a legal way to achieve real, and desperately needed, immigration reform.

“Many in Congress are screaming about the President’s actions, calling him an array of names, such as tyrant. Nothing could be farther from the truth,” writes Dean Alexander. “As a Constitutional Law professor, I view this as an example of the complex function of the three-branch republic the Framers created over 200 years ago.” He argues that President Obama is well within his rights to exercise executive action. And further, if the Congress or the judicial branches of government object, it is within their power and their duties to rein him in.

Read the article, “Divided Government is the American Way: Opinion” in the Star-Ledger.

Assistant Dean Jessica Miles and Christopher Keating '14 in NJ BIZ on Seton Hall Law's dedication to hands-on learning for law students

November 19, 2014

NJ BIZ published two interviews with Assistant Dean Jessica Miles of the Office of Career Services regarding Seton Hall Law’s approach to legal education, which reflects a larger trend that prepares students to perform well in the courtroom, and the boardroom, from the day they graduate.

“Getting Schooled in Courtroom Setting is New Goal”

This article features the experience of Seton Hall Law graduate Christopher Keating ’14, who argued before Supreme Court Justice Sonia Sotomayor in April 2014 when he was a finalist in the Eugene Gressman Appellate Moot Court Competition.

‘It was the most difficult speaking experience of my life,’ he said, ‘…but that made every experience I will ever have moving forward that much easier.’

Apparently that’s what law firms are asking prospective attorneys for – more than the erudition that comes with thick textbooks, all-night study sessions and all-day classroom lectures.

‘Practice-ready’ is how Jessica Miles…more gently put it.

‘That’s the all-important buzz phrase we keep hearing,’ she said.

As the reporter describes,

‘Instilling a practice-readiness into students takes thrusting them into realistic simulations or live clinical courses.

Both of which Seton Hall Law does. And it hasn’t gone unrecognized; the school was ranked No. 13 in the nation for its experiential learning programs by The National Jurist this year.

Dean Miles, also a professor in the Seton Hall Law Center for Social Justice Family Law Clinic, encourages students to participate in such programs where they have the opportunity to take on real-world cases. In doing so, they put into practice the critical legal reasoning and writing abilities they first develop through traditional classroom and simulation based courses.

‘One of the most beneficial experiences a law student can have is to go through a clinical program,’ Miles said.

Keating, now serving as a clerk to Superior Court Judge Lisa M. Vignulolo in New Brunswick, agrees with Dean Miles’ view of the clinical experience:

‘It was essential to reminding me why I went into law school in the first place,’ he said, ‘It made me fall back in love with the idea of being an attorney.

‘Sitting in a classroom is nice…But being able to work directly with some who really needs your services – being able to solve their problems through what you’ve learned – is an amazing feeling.’

“Be Slow to Specialize”

In a second article featuring an interview with Dean Miles, the reporter honed in on whether law students must pursue a specific area of expertise to achieve career success.

Seton Hall Law offers three concentrations that students may pursue beginning in their second year of law school: in Health Law, Intellectual Property and its newest offering, Compliance. As the reporter notes, for some students, who come from industry, a concentration is a natural fit with their current work experience.

Dean Miles believes students should be encouraged to discover and pursue their passion in the law. As she concludes,

‘We want to graduate people who are happy to be lawyers, people who are thrilled to be in the profession,’ she said. ‘The way to do that is to support their choices.’

Professor John Jacobi in NJ Spotlight on new Seton Hall Law initiative monitoring implementation of Affordable Care Act in New Jersey

November 03, 2014

NJ Spotlight recently featured an article regarding The Sentinel Project, a collaborative endeavor between New Jersey Appleseed Public Interest Law Center and Seton Hall Law School, through which the two organizations will gather information from insurance customers to determine whether insurers are providing the services that customers are entitled to under the Affordable Care Act. The project is intended ensure that insurance coverage affords recipients the health care they need.

In covering the story, NJ Spotlight quoted Professor John V. Jacobi, who assists in leading the project: “One of the things that I thought state exchanges would be helpful in was just exactly this sort of this—that is, there would be professionals who would be knowledgeable about the state’s insurance market.” The article goes on to note that Professor Jacobi’s goal “is to approach insurers as quickly as possible when residents have concerns about their services, so that the companies can remedy the problems.” Professor Jacobi noted that major insurers the project has already approached have been receptive.

Professor Jacobi states that “[The project] ha[s] had some concerns with how insurers have made their networks available on their website,” adding that consumers can be left confused when the name of the plan on healthcare.gov fails to match the name of the plan on the insurer’s website.

The article concludes by noting that there doesn’t appear to be any similar work being done in other states, so the Sentinel Project’s research could prove useful across the nation.

Read the whole story here,

And learn more about the Sentinel Project here,

Professor Lubben in Dow Jones’ Daily Bankruptcy Review on GT Advanced bankruptcy and the impact of the organization’s relationship with Apple

October 24, 2014

Professor Stephen Lubben was quoted in an article published in Dow Jones’s Daily Bankruptcy Review. The article, titled, “GT Advanced Bankruptcy Pros Disclose Client Ties to Apple,” discusses potential conflicts of interest surrounding GT Advanced Technologies Inc.’s Chapter 11 bankruptcy filing. After Apple, Inc. declined to use GT Advanced’s synthetic sapphire material in the new generation of iPhones, GT Advanced filed for bankruptcy.

The article explains that some of GT Advanced’s bankruptcy advisors that assisted the company through bankruptcy by way of “a fast settlement with Apple Inc.” have either previously or currently represented Apple in other matters. Three of GT Advanced’s advisors, Paul Hastings LLP, Ropes & Gray LLP, and Alvarez & Marsal LLC all either currently have or previously had client relationships with Apple.

Professor Lubben was quoted, explaining: “It’s basically because you’re using the public system to resolve your debts, and therefore we want to make sure that the system’s pure and clean[.]”

Ropes & Gray LLP still holds a client relationship with Apple and GT Advanced. The firm certified that it is conflict-free to continue working with GT Advanced, but noted that if a conflict or potential conflict arises between Apple and GT Advanced, then GT Advanced will have to consult Paul Hastings or another law firm. The article explains, “The law firm is being hired under a provision that calls for less extended scrutiny than will be applied to lead bankruptcy counsel Paul Hastings, Mr. Lubben noted.”

In GT Advanced’s proceeding, Apple, owed $439 million, was described as the top secured creditor in the case, as well as the counterparty to contracts that GT Advanced has attempted to avoid as “oppressive and burdensome[.]”

Seton Hall Law Center for Policy and Research Senior Fellows Publish Op-Ed in The Record on the Militarization of Local Law Enforcement

September 24, 2014

Dakota Gallivan ’14 and Jared Stepp ’14, both Senior Research Fellows in the Seton Hall Law Center Policy and Research, and both veterans of the war in Iraq, published an op-ed in The Record speaking out against government-sponsored programs to equip local law enforcement with combat grade equipment and weaponry. To summarize their position, Gallivan and Stepp write,

Civilians, however unruly, should not be treated as enemy combatants in their own communities.

We know all about the tools of war. And they are not meant for community policing.

The issue of government-sponsored combat-grade equipment distribution programs made the news most recently as the citizens of Ferguson, Missouri engaged in protests following the shooting death of Michael Brown, an unarmed African American teenager. Yet in April 2013, tthe Center for Policy and Research Fellows took note of a heightened use of military equipment in the aftermath of the bombing of the Boston Marathon. Gallivan and Stepp write,

Though relieved by the ultimate outcome, we were struck by the vast number of armored vehicles and automatic weapons that descended upon Watertown, just outside Boston.

We were also disconcerted by the similarities we saw between the ways in which the law enforcement personnel were outfitted and the gear we as soldiers wore in combat in Iraq.

This experience led us to research the ways in which the U.S. government supplements, funds and equips law enforcement in America. We also sought to understand how this new equipment was being procured, used and managed by its recipients.

The ensuing report, “Costs and Consequences of Arming America’s Law Enforcement with Combat Equipment,” reveals numerous government-sponsored programs designed to provide extensive military weaponry to local police departments at reduced costs, and with no accountability to provide training, to secure equipment storage or even to conduct a periodic equipment inventory.

Gallivan and Stepp describe the equipment, based on their own experience, as “complex, unforgiving and potentially deadly,” and continue,

An offensive posture can elicit or exacerbate a divide between a community’s residents and the officials who have been sworn to protect and serve them. Instead of working together to keep towns safe, orderly and peaceful, the two groups are pitted against one another as adversaries.

As demonstrated so disturbingly in Ferguson, the militarization of police also forces our citizens to defend their own rights on their own land – often directly in the face of terrifying and life-threatening machinery. As soldiers who fought to defend American freedoms and ways of life, this is an affront to our values and service.

The message is clear: Americans need to keep the MRAPS [Mine-Resistant Ambush Protected vehicles] and other military-grade armaments where they belong – in the capable and deserving hands of our armed forces. 

Read the op-ed, Opinion: In wake of Ferguson, rethinking police armaments Read the report, “Costs and Consequences of Arming America’s Law Enforcement with Combat Equipment"

Assistant Dean Jessica Miles on Proposed State Legislation Designed to Protect Victims of Domestic Violence

September 22, 2014

On September 15, 2014, the New Jersey State Assembly passed a package of six bills aimed at protecting victims of domestic violence, including a measure introduced by Assemblyman Joseph Cryan [D-Union], which would bar anyone charged with aggravated assault in a domestic violence case from entering the pre-trial intervention (PTI) program.

While this may seem like a step in the right direction, law experts warn that the punishment of PTI is common in domestic violence cases. In a Star-Ledger article, Professor Miles explains this can present a slippery slope.

This takes away choices from the victim who very much wants to reconcile and make things better with her family. The prosecutor would have only two choices: Proceed to trial or drop the charges. Now, we’re stuck.

Professor Miles summed up the link between domestic violence and pre-trial intervention:

Unfortunately, we see this every day. When a victim wants to reconcile and work on their relationship, it’s not all that uncommon for a prosecutor to respect that decision. Even though this case seems like it would have been a ‘slam dunk,’ you can imagine her [Janay Palmer] taking a stance. She could have claimed she provoked him. And all it takes is one person on the jury to say: ‘Well, maybe she is kind of to blame.’

Read the article on NJ.com, “Ray Rice Case: N.J. Lawmakers Question Prosecutor’s Decision, But Experts Say It’s Common” 

In a recent New Jersey Law Journal article, Professor Miles expressed satisfaction that the Ray Rice controversy is causing the legislature to focus on domestic violence, but she fears that “pending legislation might make things worse”:

If prosecutorial discretion in the handling of domestic violence cases were taken away, it would force prosecutors to drop more cases. Unlike the Rice case, where a video of the altercation is available, physical evidence is sparse in most domestic violence cases. If you have a situation where you have to proceed to trial or drop the charges, a lot more cases are going to be dropped. Giving a prosecutor authority to respect the wishes of a victim who doesn’t want her abuser prosecuted is important, because taking away that right would chill the reporting of abuse cases...[and] could result in victims taking the witness stand and recanting their testimony by blaming their injuries on an accident.

Professor Miles explains that outsiders should not be so quick to judge a domestic violence victim’s reluctance to prosecute his/her abuser. She noted, "Religious pressure, financial pressure, pressure to have a nuclear family and the fear of further abuse all keep victims from implicating their abusers.”

Read the New Jersey Law Journal article, “Lawyers Fear Ray Rice Case Could Stymie Prosecutorial Discretion”

Assistant Dean Jessica Miles in USA Today, CNN, Time and NJTV on Domestic Violence Case Against NFL Player Ray Rice

September 22, 2014

Dean Jessica Miles, who specializes in domestic violence and serves in the Family Law Clinic of the Seton Hall Law Center for Social Justice, was cited in several news outlets regarding the controversy surrounding Baltimore Ravens running back, Ray Rice, and his now-wife, Janay Palmer. 

Earlier this month, the full video footage from an Atlantic City casino was released which showed Rice beating and dragging Janay Palmer’s unconscious body out of an elevator. Previously, only the part of the video, showing Rice pulling his unconscious wife off the elevator, was released to the public although Rice admitted to hitting his wife and was indicted by a grand jury on aggravated assault charges. As a result of that incident, Rice has been admitted into a pretrial intervention program, which involves probation and anger management counseling. If Rice meets the terms of his program, his record would be cleared.

Initially, the NFL’s response was to suspend Rice for two games. Following the release of the portion of the video showing Rice punching his wife, the Ravens severed Rice’s contract and he has been suspended by the NFL indefinitely. However, there has been extreme backlash regarding the handling of his criminal case and the initial actions taken by the NFL.

Time Online turned to Dean Miles for commentary on the NFL’s response to Rice’s actions:

The NFL showed zero understanding of domestic violence. It’s like they didn’t even Google it.

She went on to explain,

The way the NFL has responded is alarming. Anyone who knows anything about domestic violence would not be surprised that the prosecution did not pursue the case. As an advocate of victim’s rights, I’m disappointed that it appears the abuser got away with it. But I understand where the prosecution is coming from.

If the victim does not press the case – Janay Palmer married Rice a day after his indictment – prosecutors must keep her right to autonomy in mind. Also, losing such a trial could have a devastating effect. Abusive men could feel empowered. It could really hurt future victims. With the video evidence, it doesn’t appear that Rice has much of a legal defense. But as we all know, jury verdicts can sometimes surprise.

Dean Miles goes on to state, “The first thing abusers do is apologize. It’s very, very typical.”

Read the Time Online article, “The NFL’s Epic Breach of Trust”

In an interview with CNN, Professor Miles explained her views on the NFL’s actions and how it promotes victim-blaming:

Janay’s comments are heartbreaking…[yet] still reflecting the ‘victim blaming.’ I think that is part of why people stay . . . they feel some sort of responsibility . . . She is definitely not alone. One in four women is physically assaulted by an intimate partner in a lifetime. Domestic violence costs our country over five billion dollars in lost wages and unpaid medical bills.

When asked why the NFL’s response would further empower abusive men, Dean Miles states:

I think the NFL’s response clearly did. It’s absolutely disheartening. It’s perfectly understandable why the prosecutor dropped charges in light of the reconciliation and the difficulty of proceeding with victimless prosecution. [The NFL's] response being so minimal, compared with punishing everything else that they have punished people for so harshly, gives the message that it’s OK.

Watch the clip on CNN, “NFL Did Not Take Video Seriously”  

When USA Today asked why the legal penalties against Rice not more severe, Dean Miles pointed to Janay Rice’s opposition to testifying as a likely important factor in the prosecutor’s decision:

It’s very difficult if you can imagine a jury sitting and watching, day after day at the trial, Ray Rice’s wife looking lovely, sitting in a gallery, smiling at him as the video - which may or may not come into evidence - is shown. Or perhaps taking the stand as she did at the meeting that the football team sponsored and tried to blame herself.

Dean Miles added that she believes that the prosecutor’s office chose to respect the victim’s decision, even though it is clear that her husband needs help. “I understand why they did that and I’m not alone in being disappointed that that’s what the outcome is.”

Read the USA Today article, “Why Was Ray Rice Given a Lenient Sentence After Being Indicted for Aggravated Assault?”

Regarding the terms of Rice’s pre-trial intervention, in an interview with NJTV, Dean Miles states that he needs something much more comprehensive:

The batterer’s intervention program is a 26-week program. Most anger management programs are 5 to 10 sessions. Anger management is for people in bar fights, fights with coworkers; they can’t control their anger. As we know from everything we had heard about Rice, this is not something he does to other people, this is something he does to his intimate partner. He controls his anger and waits until he is on an elevator when he thinks he is not being watched and then he punches her.

Watch the clip on NJTV: “Senate President Calls for Investigation Into Handling of Ray Rice Case”

Professor Opderbeck on MSNBC’s Melissa Harris-Perry to discuss internet privacy

September 06, 2014

Professor David Opderbeck, Director of the Gibbons Institute of Law, Science & Technology, participated in a round-table discussion with MSNBC’s Melissa Harris-Perry in a series of segments about the recent hacking of celebrity nude photos of Kate Upton and Jennifer Lawrence, among others. Other topics of discussion included privacy in the digital age, the ways in which corporations use consumers’ personal data, and whether we can do anything to protect ourselves.

Professor Opderbeck explained the legal tradeoff of having an online photo stream account:

The law of privacy as we know it today started to develop in the 19th and early 20th century and we didn’t have these technologies. We had newspapers; we had hard copy; but we didn’t have the average person being able to have that much information out there. Now, we have these technologies that are useful to us because we can keep our information in the cloud because it can always be accessible, but that utility sort of runs up against some old law that hasn’t really kept pace.

Watch the segment, “Is privacy an illusion in the digital age?”

In response to the question of whether we, as private citizens, have a right to privacy, Opderbeck continues:

It’s an interesting dynamic with a public figure and with this question of voluntariness, and that is a line that the law tends to draw. If you voluntarily disclose something, then it’s not private anymore. You’ve disclosed it. And the law has always seen public figures in sort of a different light in the law of privacy. They are running for office. The public has some sort of right to know things about them. It’s the private person who is now interfacing with these information intermediaries when you may not exactly know all of what’s being disclosed- it’s not entirely clear when you’re giving consent and what is voluntary. That is really where I think the legal issue arises.

Watch the segment, “How corporations use your data”

Professor Opderbeck sums up his thoughts on whether we can password protect ourselves out of the realities of corporations and our government having our personal data, and whether privacy breaches are, to some extent, preventable:

I think one of the interesting things here from the legal perspective is that in the 19th or 20th century, the analogy for the Apples or Googles of today might have been, say, the railroads. And we had anti-trust law to deal with that. And when it came to be the case that most people needed to use the railroads, we had to step in and kind of regulate the fees railroads could charge and the way they integrate. And so we still kind of think in the law of Googles and other information intermediaries as something like a newspaper. Not everyone needs to be in a newspaper, but the fact is they are more like the railroads were back then; we really all need to have access, so we need to think in terms of regulatory structure, more along those lines perhaps.

Watch the segment, “Who’s more trustworthy – Apple or the NSA?”

Professor Farrin Anello in the Star-Ledger regarding the influx of children over the U.S. border

August 03, 2014

Since January, approximately 30,000 unaccompanied children from Mexico and Central America have entered the country. , The Star-Ledger reports that 1,504 of these children now reside in New Jersey, primarily with friends and family. This increased migration raises complex and wrenching questions about the children’s safety, the reasons they are leaving their countries of origin, and how immigration enforcement agencies should respond.

The Star-Ledger cited the example of a woman from El Salvador, now living in New Jersey, who paid a smuggler to bring her young son and daughter to the U.S. after she began receiving demands to pay a monthly protection fee to gang members, or risk her daughter being kidnapped. The Ledger asked Visiting Assistant Clinical Professor Farrin Anello of the Center for Social Justice about a bill recently passed in the House of Representatives that allocates $694 million for immigration enforcement and facilities to hold children who are detained at the border. The bill also gives agents at the border the authority to determine whether a child’s safety is at risk if he or she is returned home, without bringing the child before an immigration judge. The Ledger writes,

Although most of the political debate has focused on reinforcing the borders and responding to the flood of children entering the country from a law enforcement perspective, that approach fails to address this as the ‘refugee crisis’ it is, said Seton Hall assistant professor Farrin R. Anello of the Immigrants’ Rights/International Human Rights Clinic at the law school’s Center for Social Justice.

Anello points to the recent research of Fulbright Fellow Elizabeth Kennedy, who has been interviewing children from El Salvador to better understand the migration.

‘Kennedy points out, for example, that most of the children who had family ties in the United States referenced fear of crime and violence as the underlying motive for their decision to reunify with family now rather than two years in the past or two years in the future,’ she said.

‘In the long term, we need to support the governments of these countries to build less corrupt, more civil societies,” Anello said. “But you have to deal with the problem first. They are children. We need to figure out who needs protection.’

Read the article, N.J. families, legal advocates, and controversy await unaccompanied migrant children

David Opderbeck appears on TheStreet.com and CNBC as Supreme Court rules streaming service Aereo violates copyright law

June 25, 2014

The Supreme Court ruled in favor of the major cable providers and broadcast companies, and against streaming service Aereo, deeming it illegal. TheStreet.com and CNBC asked Professor David Opderbeck about the ruling itself and its implications.

In an interview with TheStreet.com, Professor Opderbeck explained the Court's opinion:

Justice Breyer ruled that the Aereo service is essentially like a cable television service. He looked at the copyright statute as it was amended in 1976 specifically to deal with cable television providers. He decided Aereo is very much like a cable provider, and would have to fall under one the cable provider exceptions, which it doesn’t.

Although the case focused on technical issues under the Copyright Act relating to broadcast and cable television, the ruling has implications for searchable video services and other Cloud-based providers, such as Google or Dropbox.

If the compromises reflected in the current Copyright Act of 1976 cannot keep up with rapid technological change, the Supreme Court decision may also initiate the need for Congress to create new legislation. Professor Opderbeck summed it up on TheStreet.com:

I think the law will have to adapt and that’s one of the interesting tensions between Justice Breyer’s opinion and the dissent by Justice Scalia. The question is, what does the law really say? Does it really address these new technologies? Justice Scalia says it doesn’t; Justice Breyer says we’ll have to take each one as it comes…

The uncertainty of Justice Breyer’s opinion really does throw all of these technologies into question. We can even ask basic questions about things like Internet hyperlinking: is clicking on a link and streaming a video the same thing or similar to what Aereo does? Some of these issues may have to get addressed by Congress in the future.

And on CNBC:

There ought to be a Congressional response. I disagree a bit about the scope of Breyer’s opinion; he leaves a lot of space in that opinion to suggest that other cloud-based services also might fall within that scope. It’s really unclear and therefore Congress does need to act.

Watch the interviews here:

On TheStreet.com, Aereo Losts Superme Court Case as Justices Side with Broadcasters

On CNBC, Pulling the Plug on Aereo

Seton Hall Law Center for Policy & Research report on recidivism among GMTO detainees cited in Washington Post story regarding release of Army Sgt. Bowe Bergdahl

June 02, 2014

Shortly after the exchange of five Taliban detainees for the release of Army Sgt. Bowe Bergdahl, the Washington Post published an article addressing the question of how many former Guantanamo detainees have “returned to the fight.” The answer, according to a biannual report published by the Office of the Director of National Intelligence, is that about 16.9% are confirmed to have returned to terrorist activity of some kind, while an additional 12.1% are suspected of having returned to terrorist activity. The article notes that these figures have been challenged, and cites Seton Hall’s Center for Policy and Research:

In particular, a project conducted at Seton Hall University suggested that evidence against former detainees listed in the “suspected” category was sometimes flimsy. Seton Hall also highlighted a number of past detainees who were released from Guantanamo Bay and started careers as diplomats, businessmen and in other civilian jobs.

The article goes on to discuss the specifics of Bergdahl’s release. Read the whole story here:

Professor Denbeaux in the Associated Press on wrongful death and injury lawsuit filed against a prisoner at Guantánamo

May 26, 2014

Professor Mark Denbeaux was recently quoted regarding a landmark case stemming from the war on terror.

In Utah, an American soldier who was blinded while deployed in Afghanistan and the widow of another soldier who was killed in Afghanistan have jointly filed a $44.7 million lawsuit against Omar Khadr, a former Guantanamo detainee who, in 2010, pled guilty to committing five war crimes when he was 15 years old. In the plea agreement, Khadr admitted to throwing the grenade that caused the Plaintiffs’ injuries. Although Khadr does not currently have assets to fund the monetary damages sought by the Plaintiffs, he recently filed a $20 million wrongful imprisonment lawsuit against the Canadian government, as Khadr has served his sentence in a Canadian detention center since his release from Guantanamo Bay.

The lawsuit that the Plaintiffs have filed against Khadr is unique and has raised several questions. NBC News turned to Professor Denbeaux for commentary on the legal questions surrounding the lawsuit:

Mark Denbeaux, a professor at Seton Hall University who has represented Guantanamo detainees, said he’s never heard of a similar lawsuit filed against a detainee. He called the case “odd” and “quixotic,” and said there are a variety of legal questions that make it hard to calculate what barriers the lawsuit could face.

Denbeaux questioned how [the Plaintiffs] could expect to recover any money from Khadr unless he wins his wrongful imprisonment lawsuit in Canada. If Khadr is found to have been wrongfully imprisoned, that could determine the claims made in the Utah lawsuit.

Additionally, Denbeaux said the Utah lawsuit could open the door for Khadr to seek damages of his own in the U.S.

Read the whole article here.

Dean Patrick E. Hobbs on NJTV-News Describing His Appointment as Ombudsman for NJ Governor’s Office: “I see my role as moving forward”

May 14, 2014

Dean Hobbs appeared on NJTV-News with Mike Schneider to talk about his new role in the Governor’s office, which he will assume the week of May 19.

Dean Hobbs detailed how he will familiarize himself with the office, noting that meetings are already being scheduled with office employees in the Governor’s office. “[If I’m going to serve as an] outlet for people to come to with concerns, then they are going to need to know me. I intend to spend a lot of time meeting with folks both as a group and individually, learn about what they do and try to get them get comfortable with me and my role.”

When asked if he thought the investigation will impact he will do his job, or how the job is viewed inside the Administration, Dean Hobbs described his job as “a forward-action role,” and described his responsibilities in addition to serving as an outlet for office employees: “I’ll . . . work with the Chief Counsel to hire a Chief Ethics officer, to begin to review the practices within the offices, the protocols, what type training of currently is available and to start to create best practices within the office.”

As NJTV reports,

According to Hobbs, the governor is working to have a better functioning executive branch.

“I certainly know that from my conversation with the governor and the chief counsel, they’re determined to have a high functioning executive branch and to the extent that they think I can do that, I’m going to work as hard as I can for the citizens for New Jersey,” Hobbs said.

Watch the NJTV-News broadcast, Ombudsman Hobbs Begins Duties Next Week.

Moot Court Competition Finalists Argue Before Justice Sonia Sotomayor, Featured in The New Yorker

May 06, 2014

The New Yorker magazine attended the Eugene Gressman Appellate Moot Court Competition final round, where, on April 10, Justice Sonia Sotomayor presided alongside Judges Michael A. Chagares ’87 and Julio M. Fuentes of the Court of Appeals for the Third Circuit.

Teams Karol Ruiz ’14 and Christopher Keating ’14 - both, Center for Social Justice Scholars - and Justin Ferrone ’15 and Brian Spadora ’15, argued their cases before a packed audience in the Law School’s Larson Auditorium. The story appears in the May 12 edition of the New Yorker’s famed “Talk of the Town.”

The reporter describes an energetic presentation:

Justin Ferrone, a second-year student whose summer plans include an externship at Debevoise & Plimpton in New York, was the first up, arguing on the petitioner’s side. Within minutes, he had cited a judgment that Sotomayor rendered while she was a judge on the Court of Appeals for the Second Circuit. ‘Well, was I right?,' Sotomayor responded, to general laughter. Ferrone was not thrown entirely off balance. ‘With all due respect, Your Honor, I think your position is wonderful,’ he said. Ferrone’s co-counsel, Brian Spadora, a second-year student and a former newspaper reporter, also cited a phrase from one of Sotomayor’s earlier decisions. Sotomayor corrected him. “I think that was my colleague’s line,' she said.

’It’s a good line; you should take credit for it,’ Spadora replied.

Karol Ruiz, who was brought to the U.S. from Colombia as a young child and now advocates for the rights of other children in her position, found a deep connection to Justice Sotomayor when she read the Justice's autobiography:

When Sotomayor wrote, in 'My Beloved World,' about the generosity of her grandmother, it put Ruiz in mind of her own family, she explained. ‘She was the first Supreme Court Justice to use the term ‘undocumented immigrants,’ and she used it in her first opinion,’ Ruiz said. ‘I grew up an undocumented immigrant, and she really inspired me to show her what we can do.”

The profile also describes the competing teams’ excitement after they presented their arguments before the Justices. While Ferrone and Spadora described their own experiences, Chris Keating ’14 most likely spoke for the entire assembled audience when he said, “It’s amazing, making eye contact with Justice Sotomayor,’ he said. ‘You’re thinking, This Justice is actually listening to the words that are coming out of my mouth.'

This article is currently available by subscription only. Visit the New Yorker website at newyorker.com/magazine.

Rachel Godsil Appointed New Chair of New York City Rent Guidelines Board as reported by The Real Deal and New York Crain’s Business

April 24, 2014

New York City Mayor Bill de Blasio appointed Professor Rachel Godsil to lead the board that determines annual rent adjustments for approximately 1 million apartments across the city that are subject to the Rent Stabilization Law.

The Mayor’s press release cites Professor Godsil’s credentials: “Godsil is an accomplished attorney and professor specializing in issues of housing, land use and social justice. She is a former Assistant United States Attorney for the Southern District of New York, and previously clerked for John M. Walker of the Second Circuit Court of Appeals.” New York Crain’s Business also notes,

She is a co-founder and research director for a national consortium of social scientists and law professors, the American Values Institute, focusing on the role of implicit bias in law and policy. And she previously clerked for John Walker of the Second Circuit Court of Appeals.

According to real estate blog, The Real Deal, “The new members are expected to slow the pace of rent hikes that existed under the Bloomberg administration,” which is underscored by Crain’s:

“Prior to his election as mayor, Mr. de Blasio was a vocal advocate for a rent freeze, which would be a first for the Rent Guidelines Board. Since its inception in 1969, the board has never failed to raise rents. Last year, it allowed increases of up to 4% for one-year lease renewals and up to 7.75% for two-year leases.”

As Crain’s concludes,

Earlier this month, a spokesman for the mayor told The New York Times that Mr. de Blasio was ‘seeking balanced candidates who understand the needs of low- and moderate-income tenants.’

Read the New York Crain’s article, De Blasio to name new Rent Guidelines Board chair

Read the Real Deal blog post, De Blasio to appoint Rent Guidelines Board chair today

Read the press release from Mayor de Blasio’s office

Read Professor Godsil’s biography on the Seton Hall Law faculty page

MAYOR DE BLASIO APPOINTS RACHEL GODSIL AS NEW CHAIR OF RENT GUIDELINES BOARD

NEW YORK—Mayor de Blasio today announced the appointment of Rachel Godsil as Chair of the Rent Guidelines Board. The Rent Guidelines Board.

Godsil is an accomplished attorney and professor specializing in issues of housing, land use and social justice. She is a former Assistant United States Attorney for the Southern District of New York, and previously clerked for John M. Walker of the Second Circuit Court of Appeals.

The Mayor previously appointed Sarah Williams Willard as an owners’ representative, Cecilia Joza and Steven Flax as public members of the board, and Sheila Garcia as a tenant representative. The Mayor also re-appointed current tenants’ representative Harvey Epstein to the board.

About Rachel Godsil

Rachel Godsil currently serves as the Eleanor Bontecou Professor of Law at Seton Hall University School of Law. Godsil’s areas of expertise include property, land use, environmental justice, education and race. Her recent property work focuses on the mortgage crisis and eminent domain, as well as the intersection of race, poverty and land use decisions.

Godsil previously clerked for John M. Walker of the Second Circuit Court of Appeals and was an Assistant United States Attorney for the Southern District of New York. She was an associate counsel at the NAACP Legal Defense and Educational Fund, focusing on environmental justice, as well as an associate with Berle, Kass & Case and Arnold & Porter in New York City.

After serving as the convener for the Obama campaign’s Urban and Metropolitan Policy Committee and an advisor to the Department of Housing and Urban Development transition team, Professor Godsil co-directed a report to HUD Secretary Shaun Donovan.

She joined Seton Hall University School of Law in 2000 and has been recognized for her teaching by being nominated for Professor of the Year in 2002 and 2003. She was named Researcher of the Year in Law by Seton Hall University. She has also taught at the University of Pennsylvania Law School and New York University Law School. Godsil lives in Brooklyn.

Seton Hall Law in the National Law Journal, ranked in the Top 30 for Class of 2013 graduates' employment outcomes

April 23, 2014

The National Law Journal published an infographic detailing the employment data that all law schools submitted to the American Bar Association in March 2014, reflecting the Class of 2013 employment outcomes. The graphic, "Which Law Schools are Tops for Jobs?," offers a variety of categories for consideration. To quote the NLJ,

Here, we look at which law schools placed the highest percentage of new graduates in full-time, long-term jobs that require bar passage but were not funded by the schools themselves. We also highlight schools that placed the most graduates in large firm jobs, federal and state clerkships, and government and public interest jobs.

Seton Hall Law was ranked 28th among all law schools for the percentage of Class of 2013 graduates landing jobs requiring passage of the bar exam.

Seton Hall Law was also ranked #1 among law schools sending Class of 2013 graduates to state-level clerkships.

View Seton Hall Law's employment data, including the latest post-clerkship survey results, here.

Read the National Law Journal article, "Which Law Schools are Tops for Jobs?"

Dean Patrick Hobbs quoted in the Star-Ledger and Philadelphia Inquirer regarding appointment as Ombudsman in the Governor’s office

April 17, 2014

Numerous national and regional media outlets reported on Governor Christie’s appointment of Dean Hobbs as the state’s first Ombudsman for the governor’s office. According to the Star-Ledger, the Ombudsman role was created to “keep watch for wrongdoing, bolster ethics training and improve email communication policies within the governor's office.”

Dean Hobbs responded to questions regarding the independent nature of the new position: “I would not have taken on this role if I did not have those assurances from the governor," he said. "He wants me to come in and do what I think needs to be done, and I'll have all the resources and autonomy to do that."

The Inquirer quoted Dean Hobbs further regarding his view of the role:

He said his work with the investigation commission would serve as "a natural jump-off to this position." While he will be focused on establishing a system for staff to voice concerns and ensuring proper ethics training, the role is "wide open," Hobbs said. He said he would be "taking a look at the entire functioning of the office."

Read the Star-Ledger article, Christie names Seton Hall dean as ombudsman in response to bridge scandal review

Read the Philadelphia Inquirer article, Christie chooses law dean as his office's ombudsman

Professor Mark Alexander publishes an op-ed in The Record regarding McCutcheon v. FEC and its impact on campaign contribution limits

April 16, 2014

Professor Alexander writes on the impact of the Supreme Court ruling which has essentially eliminated campaign contribution limits for individuals. In the case, Shaun McCutcheon, a wealthy businessman from Atlanta, asserted that existing campaign contribution limits, which cap the aggregate amount an individual may donate in support of their choice political candidates, inherently compromises his ability to exercise his right to free speech. Giving the historical perspective, Professor Alexander writes:

The U.S. Supreme Court agreed that McCutcheon and all wealthy individuals should be allowed to spend hundreds of thousands, or even millions of dollars if they so choose. The court pinned its misguided decision on a my opic interpretation of a 1970s case, Buckley v. Valeo. In that case, the court essentially equated money and free speech. The argument goes that political spending is akin to political speech, so it deserves First Amendment protection. Likewise, individual contributions to campaigns are seen as expressive activity, deserving First Amendment protection.

But, as with all constitutional rights, speech rights can be regulated if there is a “compelling governmental interest.” In Buckley, the Supreme Court explained that (in the immediate aftermath of the Watergate scandal) political contributions to candidates could be limited in order to prevent actual corruption or the appearance thereof. In last week’s McCutcheon decision, the court read that concept narrowly to allow contribution limits only when there is some sort of quid pro quo contribution, like bribery.

Professor Alexander’s objections to the ruling are three-fold:

First, it limits the ability of legislatures to regulate the corrupting influence of money in politics. Second, it undermines the principle of a political system where all people can participate, and all voices can be heard on an equal basis. Third, when considered with other recent cases involving politics, it erodes the people’s faith in our government. Together, these three problems have a very negative impact on our system of government.

And as he asserts:

The millions that will be donated by the wealthiest few will unequally fund campaigns, far more than is already the case. The resulting inequality means that those with the most money — the one percent of the one percent — have a dramatically greater access and influence in our political system than all the rest of us.

In conclusion, Professor Alexander expresses his concern that since 2000, when the Supreme Court played a pivotal role in the presidential election of George W. Bush versus Albert Gore, the Court is becoming more politicized in its rulings:

The problem in all these decisions is that the court can be seen more as an interested political player and less as a neutral referee in our tripartite system of government. The three branches are meant to check each other, ultimately to protect the best interests of the people. But these decisions have given the people reason to wonder if the U.S. Supreme Court is just a bunch of political appointees who enforce a partisan view of the world, and not honest brokers in the great constitutional debates of our time.

Read the op-ed, How Ruling on Campaign Cash Impacts Democracy

Justice Sotomayor’s visit to Seton Hall Law highlighted in The Bergen Record and WBGO-FM

April 11, 2014

Seton Hall Law welcomed Justice Sotomayor of the Supreme Court of the U.S. to Seton Hall Law on April 10. She served as the keynote speaker for the annual Diversity Speaks Distinguished Speaker series and was the guest of honor at a series of receptions and talks with students, including those participating in the New Jersey Law & Education Empowerment Project (N J LEEP). That evening, Justice Sotomayor presided along with Judge Michael Chagares and Judge Julio Fuentes of the U.S. Court of Appeals for the Third Circuit at the final round of the Eugene Gressman Appellate Moot Court Competition.

The Bergen Record writes of her lecture,

Associate Supreme Court Justice Sonia Sotomayor is keenly aware that her personal story is inspirational – from a childhood in public housing in The Bronx she became the first Latino on the highest court in the land. And that awareness, she said, compelled her to write her memoir, “My Beloved World.” “There were so many people I wanted to touch and I couldn’t,” she said.

Sotomayor was introduced by law school student Leidy J. Gutierrez, an immigrant from Colombia, who said the justice’s “life bears living witness to the promise of a good education.” Sotomayor, in turn, told Gutierrez: “You inspire me and give me hope about the future. You’re going to do things I couldn’t finish.” Sotomayor, 59, said one of her goals is to meet regularly with students – beginning in middle school – to stress the value of education, which she called the only way to narrow the widening socioeconomic gap in the country.

While needing to avoid comment on matters that might come before the court, she did offer opinions on the legal profession. On being a woman and minority in law, she allowed: “People don’t expect much from you … But boy does it feel good to prove people wrong.”

Sotomayor urged the students in the audience to seek out broad legal experience. She said judges too often are drawn only from the ranks of prosecutors and that more perspectives, such as those of defense and civil practice attorneys, are needed. “We will lose something if we don’t bring a broader range of experience to the bench,” said Sotomayor. And she offered this advice to the future lawyers assembled: “Spend a lot of time ignoring the naysayers and do what you feel is right.”

In its broadcast, WBGO-FM quoted Justice Sotomayor: “Our jobs as individuals is to go back to our communities those we came from and those we may just be a part of tangentially and inspire other kids to continue on this path that’s our individual obligation.”

Read the Bergen Record article, U.S. Supreme Court Justice Sotomayor talks about her memoir at Seton Hall

Hear the radio broadcast, Supreme Court Justice Visits with Seton Hall Law Students

Professor Jonathan Hafetz in McClatchy DC regarding recently declassified report on CIA interrogation practices

April 04, 2014

Professor Jonathan Hafetz was recently quoted on the issue of CIA interrogations, the subject of the Senate Intelligence Committee’s recent report that is currently on its way to the White House. The article sheds light on the Senate report, acknowledging that the CIA “flagrantly abused some detainees and held some without legal authorization.” Some experts predict that this report will pressure the executive branch to address and alter the U.S.’s torture policy and that it will incite litigation, potentially including civil actions brought by those abused by the program and legal action in international or foreign courts.

The contents of the cumbersome report, which cost approximately $40 million to conduct and amounted to over 6,300 pages of findings, were declassified by an 11-3 vote on April 3. The report analyzes how the CIA handled detainees after the 9/11 terrorist attacks, revealing that CIA officers employed interrogation tactics that were not approved by the necessary authorities. The agency illegally detained 26 out of their 119 detainees and repeatedly misled the Justice Department.

The article goes on to discuss the federal government’s hesitancy to declassify this information and to impose liability on the officers responsible for the violations. McClatchy included Professor Hafetz’s commentary:

The courts have been extremely resistant to any form of civil liability so far, not because the evidence wasn’t available, but because the courts did not want to get into this.

The article goes on to state:

Even with its graphic details, Hafetz said he doesn’t think the Senate committee’s report is a legal ‘game changer.’ Civil litigants will still face judges reluctant to second-guess national security decisions, and federal prosecutors will still face a president intent on looking forward.

But the report will still have impact.

‘It will help shape the public narrative about the torture program,’ Hafetz said.

Read the story, Senate's findings on CIA interrogations likely to become roadmap for litigation, here.

Professor Stephen Lubben blogs in the New York Times’ Dealbook, ‘Giving a Debtor a Big Club Against Lenders’

April 03, 2014

Professor Stephen Lubben authored an article in the Dealbook section of the New York Times considering the implications of a recent federal district court opinion, Meridian Sunrise Village v. NB Distressed Debt Investment Fund Ltd., for distressed debt investors and loan investors. The case involves an issue that arose when Bank of America sold its part of a loan, which it shared with U.S. Bank and others, to a distressed debt investor.

The general rule is that a debtor has the right to approve any loan transfers, so long as consent is not unreasonably withheld, except that a debtor in default loses the right to consent. Here, the debtor was in Chapter 11 bankruptcy proceedings, so it would seem that the debtor lost the right to approve any loan transfers. Both the bankruptcy court and the district court, however, disagreed because the loan agreement limited loan transfers to “financial institutions,” and the courts found that hedge funds are not “financial institutions.”

Professor Lubben criticizes the district court’s interpretation, writing:

The court’s argument that financial institutions should be interpreted as entities that make loans almost proves the point, as hedge funds are increasingly making direct loans themselves. And did the court really mean to say that a mutual fund or an exchange traded fund could not buy a stake in this loan?

The clause in question might have more reasonably been interpreted to prohibit assignment of the loan to individual investors. But the Washington courts did not seem to be too worried about the broader context in which this loan exists.

Professor Lubben goes on to discuss a number of other reasons why the opinion is problematic, including the court’s view that the hedge fund’s subsequent transfer of part of its loan from Bank of America to another fund was an “an attempt to manipulate the Bankruptcy Code’s voting rules,” while the same transfer by a bondholder to another creditor would probably not have caused the court to object.

He concludes by emphasizing the importance of the opinion:

Why is the opinion important? Because you can expect to see it in a Chapter 11 case soon. After all, this is an appellate decision that gives the debtor a great big club against its lenders. Why not try to use it?

Read the New York Times' Dealbook Article, "Giving a Debtor a Big Club Against Lenders."

Professor Paula Franzese interviewed on MSNBC regarding the TransCanada Pipeline and eminent domain

March 29, 2014

Professor Paula Franzese appeared on MSNBC's news show, "Disrupt with Karen Finney," to discuss the TransCanada Pipeline and eminent domain. Texas has delegated the takings power (a prerogative reserved for government to advance the public good) to TransCanada, a private foreign corporation, essentially allowing the company to take private property against homeowners' will to make way for the ambitious pipeline. That delegation is constitutionally suspect, and has inspired a split of authority among state courts, with Nebraska deeming it impermissible and Texas declining to do so. Julia Crawford is a Texas landowner fighting the taking of her property.

At issue is the significant question, can the takings power lawfully be delegated to an entity other than a regulatory agency or government arm, and instead be vested in a private corporation that inherently is not a fiduciary of the public trust? Moreover, the case raises the important question of how best to accommodate the benefits that the pipeline could bring (more jobs, potentially cheaper oil prices) against private property rights and environmental harms.

Watch the MSNBC news show here.

Professor Linda Fisher in the Washington Post/Bloomberg regarding foreclosures in New Jersey

March 26, 2014

Professor Linda Fisher was quoted in an article published by the Washington Post/Bloomberg about the foreclosure crisis in New Jersey. New Jersey now has the highest number of residential mortgages that are seriously delinquent or in foreclosure. The rising number of homeowners losing their homes at this time, after years of not making mortgage payments, is a result of banks finally making their way through a significant backlog of delinquent loans that had been suspended.

To avoid court delays in the judicial foreclosure process, some hedge-fund investors are purchasing delinquent mortgages at a discount price and modifying loans. If modification is not possible, investors are paying homeowners to “hand over keys or sell for less than what’s owed.” However, investors are generally avoiding hard-hit urban neighborhoods.

Professor Fisher is helping neighborhoods, such as Newark and Irvington, research plans to use government eminent domain power to seize properties and reduce homeowner debt. This plan would allow homeowners to make affordable payments by offering fair-market value for the loans and reissuing them to homeowners.

The Washington Post/Bloomberg writes:

Many largely black and Hispanic communities in New Jersey and elsewhere were targeted for predatory loans during the boom, said Linda E. Fisher, law professor at Seton Hall University, who is helping the cities research the eminent domain proposal.

Fisher is also campaigning with residents on her block in the town of Montclair to encourage the bank, which owns a vacant property two doors down from her, to clean it up and resell it. The house, which has been empty for three years, was stripped of pipes. It attracted squatters who moved in a stove and a flat screen television, she said…

“Here we are in our middle- and upper-middle-class community and we’re seeing the same problem of poor maintenance by servicers,” Fisher said. “The foreclosure crisis has had ripple effects and it is not limited to poor communities of color where it’s concentrated.”

Read the full story, "Foreclosures Climaxing in New York-New Jersey Market: Mortgages," here.

Professor Michael Risinger comments in the New Jersey Herald on the release of a man held on murder charges

March 04, 2014

Professor D. Michael Risinger, Associate Director of the Last Resort Exoneration Project, commented on the case of Valentino Ianetti, who was held for four years after his wife was found stabbed to death in their home. Ianetti was released after the defense submitted findings from an alternate pathologist who suggesting that Pamela Ianetti’s death was, instead, a suicide.

The case has against Ianetti has been dismissed “without prejudice,” which gives the Sussex County Prosecutor’s office the leeway to re-open the case and press charges again if new evidence comes to light. Ianetti’s attorney is fighting for the charges to be dropped “without prejudice”:

Michael Risinger, a professor at Seton Hall University School of Law and associate director of the Last Resort Exoneration Project, said he is unaware of any legal mechanism that dismisses murder charges with prejudice, especially if there are disagreements among the state’s and defense’s forensic pathologists.

The former Sussex County medical examiner, Dr. Junaid Shaikh, determined the cause of death to be homicide caused by the stab wounds. The defense challenged those findings and offered evidence from another forensic pathologist of suicide based on the number of non-lethal wounds inflicted before the final deadly wounds and evidence indicating a large number of prescription opioids taken by Pamela Ianetti.

In August, Sussex County First Assistant Prosecutor Gregory Mueller asked Judge Thomas J. Critchley in Morristown to dismiss the charges without prejudice. The judge agreed and Ianetti was let out of jail.

Risinger praised the prosecution for “living up to his professional responsibilities” to not move forward with bringing the case to trial if a reasonable jury would have reasonable doubt.

When asked about Ianetti filing a civil suit, Risinger said he would not expect one to be successful, citing the difficulty in proving liability for a medical examiner or prosecutor’s office.

“I just don’t see a lawsuit here even though I feel sorry,” he said. “It is a terrible injustice, but it’s one of those kinds of injustices where the law treats it like a natural disaster; no one is legally responsible for that.”

He added: “People are held for long periods of time and then acquitted, and it’s an unfortunate cost of citizenship in a way.”

Read the full story, “Prosecutor says murder charges for Stanhope man should stay,” here

Professor Lori Nessel quoted in NBC News article on potential medical repatriation of comatose student from Pakistan

February 20, 2014

Professor Lori Nessel was quoted on the issue of medical repatriation in an NBC News article focusing on a specific case in which a 20-year-old Pakistani citizen who was enrolled in a one-semester study abroad program at The University of Wisconsin-Superior fell into a coma resulting from a car accident.

Comatose since November 2013 through at least late-February 2014, at which time this article was published, the 20-year-old student’s $350,000 medical bills exceeded his $100,000 emergency medical insurance policy and the hospital at which he was being treated sought to return him to Pakistan, despite the risk that the 24-hour flight might pose to his health due to his comatose state.

This case illuminates the underlying issue of medical repatriations. Professor Nessel co-authored a 2012 study, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” in partnership with New York Lawyers for the Public Interest. The report found that, spanning the previous six years, there were at least 800 cases in which immigrant patients who were unable to fund their hospital bills were returned to their countries of origin. The study states that U.S. hospitals are required to provide emergency medical care to immigrant patients, both documented and undocumented, “but this obligation terminates once the patient is stabilized.”

Professor Nessel elaborates on this issue, explaining:

‘[S]tabilized’ is a term of art – they can still be in critical condition. But at that point, [the hospitals] don’t have to continue to treat them . . . No government agency provides oversight . . . it’s an unregulated black hole. People are being forced to go back to their native countries where they’re not going to get the kind of care they need – which could deprive them of their life.

Read the article, “Family Fights to Block Deportation of Comatose Exchange Student”.

Matthew Feinstein ’09 and Kama Jones-El, a graduate of the New Jersey Law & Education Empowerment Project in the Huffington Post

February 19, 2014

Matthew Feinstein ’09, Associate Director of the New Jersey Law and Education Empowerment Project (NJ LEEP), recently wrote a blog post in the Huffington Post, describing the experience of Kama Jones-El, a student with whom he has worked at NJ LEEP over the last five years. NJ LEEP is a four-year, college access program available to underserved middle and high school students.

Kama was raised in a single-parent, low-income household and graduated from a Newark high school. Her intellectual curiosity, together with support from her family, led Kama to actively pursue her dreams. With the help of NJ LEEP, Kama was given direction and support to help actualize her academic potential. She now attends one of the top liberal arts colleges in the country, as a freshman at Bowdoin College.

Upon beginning her classes at Bowdoin, and despite her best studying efforts, Kama was confronted with a 49 on her first biology exam. What she did next made all the difference. Kama reached out to Feinstein at NJ LEEP, who directed her to use the resources Bowdoin offers, from teacher office hours to study groups. “Expecting the hardships, planning for them and being unafraid to say ‘I need help’ are some of the most essential skills a college student can develop,” Feinstein writes.

Kama worked hard to implement a new studying strategy, and the results of her efforts were apparent from her improved exam grades. Despite the frustrations and setbacks, Feinstein notes that “Kama’s family did not raise her to quit,” and that Kama’s discomfort was “an opportunity for growth” because she was honest with herself early on and sought the help that she needed.

Feinstein notes that Kama is one of over 40,000 students in Newark. He concludes, “The question that remains is what will we do – as a community of private citizens, large corporations, social service organizations and so many more – to help all students have the opportunity for empowerment that Kama has created for herself.”

Read the full story, “Making the ‘Leep’ to College, Together” here.

New York Times announces the nomination of Paulette Brown ’76 as the next President of the American Bar Association

February 12, 2014

Paulette A. Brown ’76 has been nominated as the next President of the American Bar Association (ABA), with her term beginning in 2015. Brown is a partner at Edwards Wildman Palmer, specializing in labor and employment law and commercial litigation in Madison, New Jersey. She is also a member of the Seton Hall Law Board of Visitors. The New York Times writes,

If elected, Ms. Brown will serve as president-elect for one year and then become president in August 2015. She will be presiding over an association whose membership is facing technological, economic and other challenges in the way they operate. Two recent independent surveys of large and regional law firms found that revenues were almost flat last year in contrast to 2012 as firms struggled to attract and retain business during a turbulent economy.

Ms. Brown, who is the chief diversity officer at her firm, said in a phone interview that she wanted 'to cast a wider net to bring more diversity in minorities, the disabled, L.G.B.T., people of color and even generational diversity' to the association.

Its membership ranks are growing, she said, but the association needs 'to respect and include lawyers in all practice areas and types, from solo practitioners to members of our largest international law firms, as well as public servants and in-house counsel.'"

Read the story, "A.B.A. Nominates New Jersey Lawyer as President"

Professor Margaret Lewis in Agence France-Presse on an execution that took place in China

February 11, 2014

Professor Margaret Lewis was quoted in an article published by the Agence France-Presse about a family in China whose patriarch was executed shortly after communicating his hopefulness for acquittal. The family was not notified before the execution took place; they discovered his death by viewing a notice posted at a courthouse.

This occurrence incited a public outcry concerning China’s “murky criminal justice system and aggressive, sometimes unpredictable, use of capital punishment.” China is believed to have the highest execution rate in the world. Although China has decreased its judicial killings and its crimes eligible for capital punishment in recent years, the exact number of executions is still unknown, as the country does not publicize its figures.

The article explains that a majority of Chinese citizens support the death penalty but believe its application is “unequal and unfair.” In addressing the importance of public opinion, the article quotes Professor Lewis who stated, “The judges are sensitive that they should be aware of what the public thinks about a case.”

Read, “Execution with no farewell spotlights China death penalty” here.

Professor Stephen Lubben in the New York Times’ Dealbook on Puerto Rico’s current financial difficulty

February 06, 2014

Professor Stephen Lubben published an article in the DealBook section of the New York Times regarding Puerto Rico’s current financial situation, in which, Professor Lubben points out, the country was recently downgraded to “junk status.”
In the article, Professor Lubben evaluates the various theoretical solutions for Puerto Rico’s debt and their corresponding obstacles. Professor Lubben explains that after the United States acquired Puerto Rico, the U.S. Supreme Court ruled that the Constitution is inapplicable to Puerto Rico. This ruling, Professor Lubben states, “left the island in a kind of legal limbo” because it is not a state.
So, Professor Lubben says:

[Y]ou might think [Puerto Rico] could file for Chapter 9 bankruptcy, just as Detroit and Jefferson County, Ala., have done. But no, Puerto Rico is also not a municipality, which is defined in the federal Bankruptcy Code as a ‘political subdivision or public agency or instrumentality of a State.’

Without bankruptcy to help it solve its debt problems, maybe Puerto Rico could rely on sovereign immunity. Argentina, a far less sympathetic debtor, has used that to great ends.

But Puerto Rico is not a sovereign nation either. The First Circuit Court of Appeals in Boston has suggested that Puerto Rico has sovereign immunity under the 11th Amendment to the Constitution. But that seems odd, given that the island is clearly not a state or a foreign state, and the amendment uses those terms.

Puerto Rico might have some sort of ‘common law’ sovereign immunity, but that’s mostly just guessing at this point, because there is little case law on the point.

Professor Lubben goes on to describe the implications of Puerto Rico’s lack of a financial remedy:

Without bankruptcy, Puerto Rico has no way to bind creditors to any sort of debt exchange offer that might address its problems. And without sovereign immunity, it may be that any creditors holding out for a better deal could run around bringing suits against the island, and obtaining judgments that might enable them to take pieces of property that should rightly belong to the Puerto Rican people.

Read the New York Times’ Dealbook article, Answer to Puerto Rico’s Debt Woes? It’s Complicated

Professor Stephen Lubben blogs in the New York Times’ DealBook, "A Safe Harbor Without Full Protection”

January 22, 2014

Professor Stephen Lubben, who writes a regular feature column in the New York Times’ DealBook section, published an article considering the “so-called” safe harbor provisions of the bankruptcy code in light of a recent New York bankruptcy ruling. He questions the lack of efforts to enact the safe harbor provisions in state courts, and challenges the genuineness of Congress’ stated goal that the provisions are primarily intended to reduce systemic risk.

Professor Lubben writes:

A recent ruling by a bankruptcy judge in New York adds to a growing body of opinions that appear to leave the door open for actions under state law that would normally be prohibited in federal bankruptcy proceedings.

The issue concerns the so-called safe harbor provisions of the bankruptcy code, which exempt derivatives and other securities transactions from the usual stay that blocks creditors’ efforts to collect debts. Last week, Judge Robert E. Gerber of Federal Bankruptcy Court in Manhattan ruled in a lingering part of a case involving the Lyondell Chemical Company that the safe harbor provisions applied only to the bankruptcy process.

His decision joined the mini-trend of court opinions that do not extend the exemptions to state courts. That is, while a bankruptcy trustee or debtor might be precluded from bringing a fraudulent transfer action in bankruptcy court, creditors retain their right to do so under nonbankruptcy state law. In the Lyondell case, Judge Gerber refused to dismiss a lawsuit initially brought in New York State court that seeks to claw back $12.5 billion paid to shareholders as part of merger deal.

Given the statutory language of the bankruptcy code, this seems like the right result. But consideration of the justification for the safe harbors makes this a somewhat more difficult matter.

Read the full NY Times’ DealBook article, "A Safe Harbor Without Full Protection."

Professor Jonathan Hafetz in Politico regarding President Obama's Speech on the NSA

January 17, 2014

Professor Jonathan Hafetz authored an op-ed in Politico in response to President Obama’s recent speech regarding government surveillance. Professor Hafetz’s op-ed questions the constitutionality of the surveillance programs and examines the President’s goals in delivering his speech, presenting an analysis of speeches the President has previously delivered on similar issues of public concern.

In a general evaluation of the President’s message, Hafetz comments:

As an act of political positioning, the speech might help Obama in the public relations moment, but it’s unclear if the former constitutional law professor has actually promised enough to put his administration and the government on the right side of the Constitution.

Professor Hafetz explains that the President’s vow to end the program may be a façade; he writes:

But Obama stopped short of adopting a number of changes advocated by his own advisory panel on the issue, a group of experts and academics he convened to examine possible reforms. Instead, what the president is more likely showing is a different kind of balancing, a move to tinker just enough to quiet critics, but not enough to significantly disrupt the status quo.

Hafetz concludes by addressing concerns about foreign relations. He writes:

In addition, mass surveillance imperils our relationships with foreign governments—not just because they don’t support it (as with Guantanamo), but also because they (and their citizens) feel victimized…..Spying may be hard, but the president might find curtailing the fallout even harder.

Read the full op-ed, “Is Obama Failing Constitutional Law?” here

Professor Michael Simkovic named #5 Among the Most Influential People in Legal Education by National Jurist Magazine

January 07, 2014

Professor Michael Simkovic was ranked #5 among the “Most Influential People in Legal Education in 2013” by National Jurist magazine. To compile the list, the National Jurist editorial team asked law schools to submit nominees, then narrowed the selection and solicited input among law school deans and other influential members of the legal community.

Professor Simkovic was selected due to a research paper co-authored with Frank McIntyre entitled,“The Economic Value of a Law Degree,” in which the co-authors conclude that the increased earnings attributable to a law degree, compared to a terminal bachelor’s degree, are worth $1 million in present value as of the start of law school.

Simkovic, who usually studies credit markets, started investigating law degree earnings premiums after researching student loans. While conducting that research, Professor Simkovic discovered that default rates for law students were extremely low, even at low-ranked institutions. These low default rates suggested that the overwhelming majority of law graduates probably earn more than enough to recoup the costs of their degrees.

Simkovic and McIntyre’s conclusions sparked a great deal of pushback, especially from bloggers who had criticized legal education amid declining employment and salaries for recent graduates. Untroubled by the controversy it raised, Professor Simkovic defends the $1 million figure as consistent with the data and proper statistical methods. He considers the claim that legal education does more harm than good implausible in light of the many studies showing that education enhances earnings even in trying economic times.

“The story being told is that education is the problem,” Professor Simkovic said. “That’s not the case. Education helps bring down unemployment and increase earnings. Young people in general are struggling because of the economy, but there is no law-specific problem.”

Read the full article in The National Jurist, “2013 Most Influential People in Legal Education”

Read Professor Simkovic’s research paper, “The Economic Value of a Law Degree”