Professor Lesley Risinger '03 of the Exoneration Project profiled in November issue of NJ Monthly

November 18, 2013

New Jersey Monthly magazine published an article featuring Professor Lesley Risinger ’03, founder of the Last Resort Exoneration Project. Professor Risinger worked on her first exoneration case as a “33-year-old stay at home mother of three, living in Kearny, with no legal training and no more than an amateur interest in the law.”

After collaborating with her mother, attorney Priscilla Read Chenoweth, to successfully exonerate Luis Kevin Rojas, Professor Risinger completed her undergraduate degree and went on to obtain her law degree from Seton Hall Law. Professor Risinger then took on her second exoneration case, resulting in the release of Fernando Bermudez, a man who had served more than 18 years of his sentence for murder. The article describes Mr. Bermudez’s exoneration:

Risinger got the indictment dismissed after eyewitnesses changed their stories and prosecutorial and police misconduct were proven. In the courtroom, Bermudez engulfed Risinger in a bear hug, his face contorted in pain and relief. ‘Lesley is just a remarkable person, a beautiful person inside and out,’ says Bermudez, who now lives in Connecticut with his wife and the two youngest of his three children.

After two successful exonerations, Professor Risinger “began to see this work as her ‘calling,’” inspiring the establishment of the Last Resort Exoneration Project, based at Seton Hall Law and assisted by her husband, Professor Michael Risinger. After two years of reviewing potential cases, the Project identified its first client: Kevin Baker, who has served almost 19 years of a 60 years to life sentence. The article states, “…Risinger believes him to be the victim of a ‘perfect storm of misfeasance’ involving every corner of the criminal justice system.”

NJ Monthly describes how serving as an advocate in an exoneration case requires “the stamina of a long-distance runner” and “the hide of a rhinoceros,”  and comments on Risinger’s persistence, despite several significantly intimidating hurdles that have emerged over the course of Mr. Baker’s case for exoneration:

Risinger pushes on, undaunted. She says she firmly believes in her client’s innocence. That alone, she says, makes every effort worthwhile. Ultimately, she sees herself fighting not just for Baker, but for all of New Jersey’s wrongfully convicted. “Our goal,” she says, “is to put ourselves out of business.”

Read the profile in the NJ Monthly, “Freedom Fighter: A New Jersey Lawyer's Quest for Justice”

Photo courtesy of NJ Monthly

Professor Jonathan Hafetz authored an Op-ed, featured in World Politics Review

November 17, 2013

Professor Jonathan Hafetz authored an Op-ed, featured in World Politics Review, regarding dangers surrounding the U.S. detention center in Guantanamo Bay and the obstacles preventing President Obama’s alleged plan to close the facility.

Professor Hafetz writes about President Obama’s pledge to close Guantanamo, as it “[became] synonymous with human rights abuses and lawlessness.” Professor Hafetz asserts, “Obama has largely succeeded in eliminating Bush-era practices of torture and secret detention, which had been declining anyway as a result of court rulings, internal oppositions and public pressure.” Professor Hafetz goes on, stating that the President’s plan to close Guantanamo “encountered fierce resistance from lawmakers eager to portray the president as sacrificing America’s safety in the name of a misplaced and naïve idealism.”

Hafetz suggests that Obama’s intention to close Guantanamo does not entail ending the underlying system, as he plans to continue trying some terrorism suspects in military tribunals and holding some enemy combatants indefinitely without charge. Rather, Obama plans to reform the war on terror, not necessarily to end it. 

Guantanamo has changed significantly since the wake of 9/11. Hafetz comments regarding this change:

It is no longer a lawless zone. Torture has ended; military commission procedures, though still flawed, have been improved; international legal principles are not employed to justify indefinite detention rather than openly flouted; and the president has abandoned assertions of unilateral executive authority in favor of obtaining legislative support for his actions. Obama, to be sure, still insists that Guantanamo was a mistake—that the harm it has caused to America’s values and reputation outweighs any benefits it has provided to the country’s security. But he has also defended his reformed Guantanamo as lawful.

Despite the improved conditions, Hafetz says, the prisoners’ desperation is increasing: more than 100 detainees participated in a hunger strike earlier this year. With Guantanamo back in the media, Obama took steps to begin transferring detainees. However, this effort was short lived. Hafetz comments, “each failed presidential attempt to tackle Guantanamo reinforces the perception that closure is an unrealistic and insurmountable goal.”

Hafetz explains the costs of maintaining Guantanamo, including serious economic consequences. The facility costs $450 million per year to maintain, which translates to $2.7 million per detainee, compared to $47,000 per prisoner in California’s detention centers. Furthermore, there are moral costs. Hafetz writes, “This continued failure [to close the facility] undermines the U.S. commitment to human rights and suggests the degree to which that commitment may be trumped by political considerations.”

In conclusion, Hafetz summarizes the legacy of Guantanamo:

“Once, Guantanamo was a microcosm of the war on terrorism, the most visible manifestation of a national policy aimed at detaining and interrogating prisoners outside legal protections. Today, Guantanamo appears increasingly like a relic—a legacy from a prior administration for which there are no easy answers.” He further points to Obama’s contribution to perpetuating that legacy:

“In short, while Obama has consistently maintained that Guantanamo undermines America’s values, he has also helped legitimize the prison. Despite his pledge to close Guantanamo, Obama may thus have helped ensure the prison’s future survival.”

Professor Stephen Lubben published an article in the New York Times’ DealBook, "Adding Up the Risks in Floating Rate Debt"

November 11, 2013

Professor Stephen Lubben recently published an article in the New York Times’ DealBook section on the risks of floating rate debt in light of the Treasury Department’s announcement that it will soon begin selling floating-rate notes, a new type of debt for which interest will increase with market rates.

Professor Lubben explains that buyers will essentially “get the same effect as rolling their money into a short-term Treasury bill over a two-year period, without any transaction costs.” He further explains that “[s]uch an investment would have a real return—the return after inflation—of zero. As a matter of theory, of course.” Professor Lubben points out that the real return could potentially reach the negative range during times of financial crisis.

In describing the final risk, Professor Lubben writes:

But that ignores the biggest risk, which, in theory, should not exist at all: payment risk. A sovereign borrower borrowing in its own currency—in this case, that currency is also the leading reserve currency—should theoretically have no payment risk.

But theory does not account for the risks of irrationality. In particular, the reckless tendencies of Tea Party Republicans, who seem to be willing to do things best done outside the real world. Like landing a 747 on an aircraft carrier. Or defaulting on United States government debt.

Read the full NY Times DealBook article, “Adding Up the risks in Floating Rate Debt,” here.

Professor Mark Alexander Op-Ed in The Record Regarding Garden State Plaza Shooting

November 07, 2013

In the wake of a slew of violent gun-related incidents that have alternately shocked, saddened, and shaken communities across the nation in the past several months, and with the latest such incident having taken place in Paramus, New Jersey’s Garden State Plaza Mall on November 4, Constitutional Law Professor Mark Alexander penned an op-ed appearing in The Bergen Record: “[The] Garden State Plaza is another place where we live our daily lives. Now, it’s another place in our daily lives that has been scarred by gun violence . . . It is a plague on society that nobody should tolerate; yet we do,” says Alexander. 

Professor Alexander admonishes legislators and policy makers to change the law to make access to guns more difficult, by any means necessary, saying to the gun lobby, “This is not what the Second Amendment is about . . . unstable people shooting up schools, movie theaters and malls with high-powered weapons of mass destruction.” 

Read the full op-ed in the Bergen Record, "Have we said enough about gun violence?"

Professors Lesley and Michael Risinger, op-ed in the Star-Ledger regarding Somerset prosecutor’s defense of Gerard Richardson conviction

October 20, 2013

In 1994, authorities discovered the body of a 19-year-old woman who had been murdered and dumped more than 30 miles away from her home. A jury later convicted Gerard Richardson of this homicide. The prosecution’s case was largely based on expert testimony of a forensic dentist, who stated that Richardson’s teeth matched bite marks found on the victim’s body. The DNA sample from the bite marks was recently analyzed, returning results matching an unknown male, but not Richardson. Despite this new discovery, it appears that the prosecutor plans to proceed with the case in order to defend the conviction.

Professor Lesley C. Risinger and Michael D. Risinger, director and associate director of the Last Resort Exoneration Project at Seton Hall Law, authored an op-ed in the Star-Ledger on Richardson’s case, noting prosecutors’ duties in cases like this one. With respect to the case’s progression in light of the new DNA analysis, they write:

One can always construct some hypothesis as an alternate account for any set of facts. The issue is not whether you can frame such a hypothesis, but whether or not it is tenably plausible. The prosecutor’s alternate hypothesis may not be as implausible as alleging intervention by trouble-making Martians to explain the evidence, but it is close.

They conclude by recalling words from the New Jersey Appellate Division:

’If neither law nor logic supports the State’s position, then it may be necessary to concede defendant’s position.’ The prosecutor in the Richardson case should reflect upon his professional responsibilities under clear New Jersey law and withdraw his absurd alternate account for the evidence.

Read the full Op-ed, “A Somerset prosecutor's responsibility to the convicted innocent: Opinion,” here.

Professor Brian Sheppard featured as the legal authority in viral documentary about New Jersey's notorious Action Park

September 18, 2013

Professor Brian Sheppard is featured in a viral new documentary, “The Most Insane Amusement Park Ever,” in which he discusses the laws that regulate amusement parks in New Jersey. The documentary, produced by Mashable and Dailymotion, is about Action Park, an amusement park that was notorious throughout the eighties for its risky rides, lax oversight, and frequent injuries. The movie, which is broken up into two parts, has received over 800,000 total views in just the few weeks that it has been online. It has been profiled by USA Today, Forbes, Slate, Huffington Post, The Star-Ledger, i09, Gothamist, and The Blaze, among others.

Professor Sheppard discusses state restrictions regarding the age of ride operators and the unusual self-insurance scheme that owners of the park devised before lawsuits allegedly forced the Park's closure in 1996. He explains that “[p]art of this story is about inspection and oversight,” and that “you would hope that inspections would happen frequently enough that you would see there could be problems with the equipment or problems with operation.” He further characterizes the Park’s strategy with respect to safety and insurance as an attempt to exist at “the fringes of legality.”

Part I can be viewed here
Part II, which features Professor Sheppard, can be viewed here

Professor Thomas Healy’s new book reviewed in The Christian Science Monitor and The Atlantic

August 13, 2013

Professor Thomas Healy’s new book, THE GREAT DISSENT: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America, is receiving stellar reviews from media nationwide. The book details how, in 1919, U.S. Supreme Court Justice Oliver Wendell Holmes shifted his view of individual rights and became a champion of the First Amendment and Americans’ right to free speech. The Christian Science Monitor placed Professor Healy’s book at the top of its Top Ten list for the month of August, writing,

Healy tells the story of the steady process of intellectual and personal evolution that caused Supreme Court Justice Oliver Wendell Holmes to change his mind about the degree of freedom that Americans should be allowed. In the process, Holmes helped to change a nation. Healy's account is a stirring mix of intelligent biography and truly significant social and legal history.

The Atlantic review concluded,

The genius of Justice Holmes' dissent in Abrams wasn't just its eloquence it was ‘meta-ness.’ He was changing his mind about the need, the value, the glory, the benefit, of changing one's mind and of accepting the changing of other people's minds. Healy has written a magnificent book about a magnificent moment in American legal history -- and in the life of a magnificent man who was smart enough to understand just how wrong people can be.

Read the Christian Science Monitor review, “Ten Best Books of August: The Monitor Picks”

Read the Atlantic review, “The Most Powerful Dissent in American History”

Professor Jenny Carroll in the Orlando Sentinel on jury selection in the trial of George Zimmerman

July 17, 2013

Following the acquittal of George Zimmerman in the shooting death of Trayvon Martin, the Orlando Sentinel asked Seton Hall Law Professor Jenny Carroll whether the all-woman jury selected for the trial acted against stereotype.

The paper noted that Professor Carroll,

said it would be wrong to assume every female juror could be stereotyped. One theory might be that women tend to be sympathetic jurors. But that could also mean they would be more sympathetic to self-defense claims, she said. Some experts speculate women can be harder on suspects who use guns, Carroll said, but she also noted some women are pro-gun.

Stereotypes or not, jurors are told to leave emotions out of their decision making. 'These jurors are asked by the judge and asked by the attorneys in their closings to set aside any of those biases and sympathies and think about the facts of the case,' Carroll said.

Read the Orlando Sentinel article, "George Zimmerman Trial Coverage: Did female jury defy stereotypes with Zimmerman verdict?"

Lecturer in Law Tara Ragone and Professor Frank Pasquale in NJ Spotlight on strengthening the security of electronic medical records in remote servers

July 10, 2013

While the law has protected the confidentiality patients’ records through the 1996 Health Insurance Portability and Accountability Act (HIPAA), the storage of electronic medical records on remote servers may prove a security risk for patient information. NJ Spotlight interviewed Tara Ragone and Frank Pasquale of the Center for Health & Pharmaceutical Law & Policy on their new white paper, The Future of HIPAA in the Cloud,” which was funded by a grant from Microsoft. The paper details the risks that healthcare providers face in managing digitized records and offers policy recommendations to avert security breaches and hold medical providers accountable for proper record storage.

NJ Spotlight quotes Tara Ragone, a Research Fellow and Lecturer in Law, “When you have the protected health information stored in a central location, hackers will want to go in, (and) will attack the treasure trove…People have to have that information protected and not out into the public.”

The article also notes, “Ragone said legal standards are still evolving to address the wide range of issues posed by the electronic use and storage of health information – including such simple acts as a doctor emailing a patient.”

Read the article, Legal Scholars Cite New Challenges in Struggle to Protect Patient Privacy

Read the press release regarding the white paper, “The Future of HIPAA in the Cloud”

Professor Jonathan Hafetz in The Boston Review, writes about two new books on U.S. drone policy

June 21, 2013

Professor Jonathan Hafetz reviewed two works, both authored by investigative reporters, on the use of drones in the United States’ arsenal to fight terrorism: Dirty Wars: The World is a Battlefield by Jeremy Scahill (Nation Books) and The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth by Mark Mazzetti (Penguin Press).

The argument for the use of drones is that the military may strike without committing inordinate numbers of troops. However, the use of drones has gained visibility and amassed controversy since September 2011, when missiles fired from a U.S. Predator drone killed Anwar al-Awlaki, a 30-year-old American citizen who was crossing the desert in Yemen at the time. The Bureau of Investigative Journal, based in London, estimates that 4,000 individuals, soldiers and civilians included, have been killed by drones since the attacks of September 11, 2001.

Professor Hafetz’s conclusion: “Drone strikes and other covert ‘kill or capture’ operations have come to define President Obama’s approach to national security, much as the military detention of terrorism suspects at Guantánamo did his predecessor’s.”

Professor Hafetz uses the reviews to highlight the need for the U.S. government to implement policies in which drones are only one component of what should be a comprehensive, long-term strategic effort to end terrorism.

Read Professor Hafetz’s Boston Review article, “War without Strategy: America Still Doesn’t Have a Plan to Fight Terrorism”

Professor Jordan Paradise in the Star-Ledger and Chemistry World on the Supreme Court case regarding patents on genetic material

June 13, 2013

Professor Jordan Paradise agrees with the Supreme Court ruling in Association of Molecular Pathology vs. Myriad Genetics, in which the Court struck down Myriad Genetics’ attempt to patent mutations in genes used to test whether a patient has a predilection toward breast or cervical cancer. The tests made headlines recently when actress Angelina Jolie, influenced by her own results, underwent a double mastectomy. The question arose as to whether a profit-making company can claim proprietary rights to genes and genetic material. The Star-Ledger and Chemistry World interviewed Professor Paradise just prior to the ruling regarding the nuances of the case and for her perspective.

When asked, “Why is the U.S. Supreme Court examining Myriad Genetics?,” Professor Paradise replied, “The case asks a single question: Are human genetic materials patent-eligible subject matter under U.S. patent law?...It’s an important issue. We’re essentially asking whether you can take something out of nature and say you invented it and that it’s now your property. The implications of these patent claims tie into cost, access and personhood. Myriad said they have transformed the genetic material sufficiently to create something new.”

As for Professor Paradise’s point of view, she said, “I’m on the side of access, not keeping genetic information proprietary. Access would increase robust research by others, increase access to patients, and reduce the costs of diagnostic tests. A diagnostic kit to detect a specific genetic mutation may rise to the level of an invention and acquire patent protection, but the underlying genetic information does not.”

In Chemistry World, a leading UK science magazine, Professor Paradise said, "If you ask the general public whether DNA should be patented, the overwhelming reaction is no, it would be crazy..It is going to force companies to think differently about drafting their patent claims."

The Supreme Court agreed, unanimously, on June 14. 

Read the June 13 Star-Ledger article, Patenting human genes: A Q&A on Myriad Genetics

Read the June 20 interview in Chemistry World, "US Supreme Court rules genes can't be patented"

Professor Jenny Carroll on the proposed NJ State Senate bill allowing policemen to confiscate cell phones at the scene of a collision

June 11, 2013

The Star-Ledger, WHYY-FM radio in Philadelphia, Channel 9 Fox TV News and Channel 11 interviewed Professor Jenny Carroll about the privacy issues arise within the proposed bill under consideration in the New Jersey State Senate which would allow police to confiscate a cell phone at an accident scene.

The State Division of Highway Traffic Safety reports 1,840 handheld cell phone-related crashes in New Jersey in 2011, resulting in 807 injuries and six deaths. While Professor Carroll points out that an officer may have probable cause to review a cell phone that may be at the root of an accident, the action raises questions about the driver's right to privacy. She believes that question may rise to the level of the Supreme Court.

"To the extent that the Legislature may be able to argue that the driver has ceded some of his privacy interests by being in that accident, you can't make that argument for the third party whom the driver was potentially in communication with," she said Tuesday. "And I think that is potentially an issue the Supreme Court is going to have to address as well."  

Read the Star-Ledger article: "License, registration and cell phone: Bill would let N.J. cops search phones after crashes"

Read the transcript of the radio broadcast on WHYY: "Bill allowing police to search cell phones of drivers in a crash raises concerns in N.J."

Professor Jonathan Hafetz on Bloomberg TV's "Street Smart" regarding extradition of Edward Snowden

June 10, 2013

As of this writing, Edward Snowden, a former consultant for the National Security Agency, currently remains in Hong Kong, having fled the U.S. after leaking information regarding the NSA’s surveillance practices. Professor Jonathan Hafetz appeared on Bloomberg TV’s “Street Smart” to answer some questions about what is likely to happen next to bring Snowden home to the U.S. “I think the chances are pretty good that he will be extradited or possibly removed under U.S. immigration laws,” he said.

Professor Hafetz noted that the nature of the charges may affect Hong Kong and China’s willingness to comply with U.S. requests for extradition: “It would have to be a crime under Hong Kong law, such as stealing information from the government. If it’s a political offense, such as espionage, there may be a political exception to extradition.” Professor Hafetz and his hosts noted that China would be put in a difficult position if the Chinese or Hong Kong government denied the U.S. requests for extradition – offering Snowden safe harbor for leaking information while the Chinese government is called to task for its own suppression of free speech rights. However, Professor Hafetz concluded that the Chinese or Hong Kong governments have little to gain by refusing a request from the U.S. to deport Snowden. He said, “I don’t think they have a ‘dog in the fight,’ no reason they want to protect him, no need to create international tensions...If they seek to protect Snowden, it will have a many domestic ramifications for China.” 

Watch the interview on Bloomberg TV’s “Street Smart”

Professor Stephen Lubben discusses bankruptcy on "Marketplace"

June 10, 2013

After National Envelope - the largest private envelope maker in the U.S. - filed bankruptcy last week, "Marketplace," the American Public Media radio show broadcast on NPR, asked Professor Stephen Lubben about companies that have forestalled bankruptcy by taking long-term, low-interest loans. "“If they're able to refinance and put off addressing real problems with the business, they may just be putting off their pain to a later date,” Lubben says.

He warns that much of that debt will mature by 2017, and the interest rates may be much higher when the time comes to pay up. "So although we have low bankruptcy rate right now, Lubben says 'We may have to face the music on this.'" 

Read the full article and hear the "Marketplace" segment, "What kinds of businesses go bankrupt these days?"

Ronald Morgan '13, Jacqueline Shulman '13, and Professor Barbara Moses publish Op-ed in The New Jersey Law Journal

June 06, 2013

Ronald Morgan '13 and Jacqueline Shulman '13 co-authored an op-ed piece with Professor Barbara Moses as part of their work with her in the Civil Rights and Constitutional Litigation Clinic of the Seton Hall Law Center for Social Justice. The piece, featured in the New Jersey Law Journal, addresses the slippery slope of civilly confining ex-sex offenders after they have completed the time to which they were sentenced.

Morgan, Shulman and Professor Moses write, “Nobody has a soft spot for sex offenders. No lobbyists protect their interests; no community groups fight for their rights. But the SVP [sexually violent predators] laws undermine two principles of the American criminal justice system: that we imprison people because they have broken the law—not because they might break the law in the future—and that once a convict has paid his debt to society, he may rejoin it.”

Professor Lori A. Nessel Featured in multiple news outlets and AP video on medical repatriation

May 28, 2013

Professor Lori A. Nessel, Director of the Center for Social Justice, and co-author of a report entitled “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” and author of several other scholarly articles on medical repatriation, recently appeared in numerous articles and on television, radio, and web-based programs to discuss her work on medical repatriation.

An expert on immigration law and international human rights, Nessel has worked for years to highlight the unregulated process by which hospitals return sick undocumented immigrants to their countries of origin even when they still need critical medical care. When asked about the practice of medical repatriation, Professor Nessel was quoted in an AP video as follows: “Hospitals are doing de facto deportations and sending these very vulnerable immigrants directly from their hospital beds back to their countries, oftentimes without their consent. . .” In a March 2013 blog post, Professor Nessel highlighted the tragic results that can occur from medical repatriation, as demonstrated by the case of Marlene:

The coerced repatriation and subsequent death of Marlene, a young longtime U.S. resident from Mexico, illustrates the perilous outcomes that all too often occur when hospitals engage in medical repatriation. Marlene was brought to the U.S. when she was one year old, and by the time she was nineteen, she dreamed of becoming a police officer and serving on the SWAT team. But just two months after her high school graduation, a family acquaintance entered her home and shot her in the head.

Marlene was rushed to a public hospital in Arizona. Upon arrival at the hospital, Marlene was admitted and initially “stabilized” by doctors. But after learning that she was undocumented, the hospital began pressuring Marlene’s relatives to agree to repatriation. The hospital’s pressure persisted as the family attempted to find any avenue of assistance. Meanwhile, Marlene developed an intestinal infection, severe fever, and pneumonia, and suffered a heart attack.

The family ultimately succumbed to the hospital’s pressure and agreed to her transfer, but still asked their attorney to investigate any possible relief that might allow Marlene to stay in the U.S. One possibility was a U Visa which, if granted, would have afforded Marlene lawful immigration status in exchange for her willingness to assist in the investigation of the crime. The hospital, however, would not delay Marlene’s transfer, and the doctors at the hospital declared her stable and able to travel. At 9:00 AM on August 10, 2010, Marlene was wheeled out a back entrance of the hospital and taken to Mexico. Upon her arrival, she was diagnosed with septicemia, pneumonia, and meningitis. At 5:05 AM on August 11, 2010, Marlene died.

Nessel, Lori. 2013. “Immigration Reform and Health Care: Leaving the Undocumented in the Breach,” available at ACCESS DENIED: A Conversation on Unauthorized Im/migration and Health.

According to Professor Nessel, governmental regulation is needed in order to remove the “cloak of secrecy” that surrounds this practice: “At the very least, Nessel said, government regulations could require that hospitals obtain knowing consent from patients or the families of patients who are being repatriated. In this case, ‘knowing’ consent would require a full explanation of the consequences of being removed from the country, made in the patient’s native tongue, she said.” Mary Anne Pazanowski, “Medical Repatriations by Hospitals Provide Controversial Remedy for Difficult Discharges,” “Medical Repatriations, ending on May 5, 2013] 22 HLR 667 (May 5, 2013) (reproduced with permission from BNA's Health Law Reporter, copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

For the full AP video, go to:

Washington Post, “Hospitals 'deport' ill, undocumented immigrants.”

For additional written coverage, see:

Columbus Dispatch, “Hospitals send home some ailing immigrants.”

CBS News, Report: “U.S. hospitals deported hundreds of immigrants.”

UPI “U.S. hospitals repatriating sick/injured undocumented immigrants.”

For additional interviews, go to:

HuffPost Live (Video & Live Interview), “Immigration Black Hole.”

Read the Press Release and report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation”

Center for Policy & Research Latest GTMO Report Cited by U.S. Department of Defense, Office of Chief Defense Counsel

May 23, 2013

The most recent report from the Center for Policy & Research, “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship,” was heavily cited in a letter memo from the U.S. Department of Defense, Office of Chief Defense Counsel to the U.S. Secretary of Defense, the Honorable Charles Hagel.

The 10 page letter memo, which requests improvements in the conditions of confinement in Guantanamo, devotes 2 pages to the Seton Hall Law report (citing the inconsistencies discovered by Center Fellows in statements made by various members of the military regarding recording capabilities at GTMO and overall recording capability itself).

Read the full letter memo from the Department of Defense, Office of the Chief Defense Counsel, to the U.S. Secretary of Defense.

Read the report, “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship.”

Professor Barbara Moses Named President of New York County Lawyers' Association

May 22, 2013

Featured in the New York Law Journal, Professor Barbara Moses, Director of Seton Hall Law’s Civil Rights and Constitutional Litigation Clinic, was named President of the New York County Lawyers' Association (NYCLA), one of the largest bar groups in the United States.

The New York Law Journal Reports:

Moses, a securities litigator turned law professor, has already spearheaded efforts that will continue in her two-year term.

"The issue that's most important to me at NYCLA is its inclusivity. I want to nurture and expand that and strengthen that," said Moses, 56, who is counsel to Morvillo Abramowitz Grand Iason & Anello and also directs a constitutional litigation clinic at Seton Hall University School of Law in Newark, N.J.

The 105-year-old organization was founded for lawyers denied admission into other bar groups because of their religion, ethnicity or political affiliation. At more than 9,000 members, NYCLA is now one of the largest bar groups in the United States.

Building on a project started by her predecessor, Stewart Aaron of Arnold & Porter, Moses has reauthorized a task force to analyze how a $170 million cut to the 2011-12 state court budget is affecting lawyers, court employees and defendants, a rising number of whom are pro se.

The task force—chaired by former NYCLA president Michael Miller and former Appellate Division, Second Department, Justice Stephen Crane—will extend its reach to study the effects on the federal courts of the cutbacks brought on by the sequester this year.

"I find that disturbing that folks in Washington allowed that to happen," Moses said. "Our budget-cut task force will be collecting this kind of information to present a fuller picture of what this means for access to justice. These aren't just numbers in somebody's budget."

In addition to showing a "real-world, in-the-trenches" view of an overburdened court system, Moses said she hopes NYCLA's continued research will prompt reforms.

Read the full feature article, “Incoming President Pledges to Nurture NYCLA's 'Inclusive' Role.”

Professor Paula Franzese Featured in the Wall Street Journal on legal education

May 21, 2013

Professor Paula Franzese’s article, “Law Teaching for the Conceptual Age” (forthcoming, Seton Hall Law Review) was featured in the Wall Street Journal’s Law Blog. Professor Franzese, voted Professor of the Year an unprecedented 11 times, espouses a larger and more comprehensive view of the law.

The Wall Street Journal writes:

The notion that law schools should teach more practical skills and hands-on training is in vogue these days.

But Paula A. Franzese, a property and government ethics professor at Seton Hall University School of Law, thinks that the theory v. practice debate needs to be reframed. The more important divide, she says, is between the two sides of the brain.

“Much of what we tend to do in the law school classroom is aimed at honing left-brain thinking,” writes Ms. Franzese in a forthcoming essay in Seton Hall Law Review.

The Journal further notes:

That means before talking about the trees, professors should teach the forest. “What are the threads that tie together this group? What are the essential commonalities and differences?… How is this material a mirror of its times?”

She offers her own property class as a case in point. When she teaches her students about the different rulings on the obligations of landlords, she first asks her students “to consider the common threads that tie those cases together and the shared catalysts that precipitated the courts’ repeated retreat from” precedent.

She concludes:

In these difficult times, as law teachers we are uniquely situated to frame the task of reinvention for both the academy and the profession. Staying relevant against the backdrop of significant demographic, socio-cultural and economic shifts that have altered the ways that the law is perceived, accessed and practiced requires that we re-think and re-brand the theoretical and practical skills’-sets that we teach.

Read the full article, “Are Law Schools Neglecting Half of the Brain?”

Professor Jenny Carroll on ESPN.com regarding gun charges levied against New York Jets running back Mike Goodson.

May 21, 2013

Professor Jenny Carrol was featured in an article on ESPN.com regarding the gun charges filed against New York Jets running back Mike Goodson. According to ESPN,

Goodson was arrested at 3 a.m. Friday during a traffic stop on Route 80 in New Jersey. He was the passenger in a car that was stopped in the left-center lane. Goodson was charged with unlawful possession of a handgun, possession of a loaded handgun, possession of hollow-point ammunition, possession of marijuana and drug paraphernalia.

Both Goodson and the driver, Garant Evans, 31, of Roselle, N.J., were intoxicated, according to police. Goodson required medical attention at a local hospital.

After more than 12 hours in jail, Goodson was released on $50,000 bail.

ESPN further reports:

If Goodson pleads guilty or is convicted of unlawful possession of a handgun, he will be subject to the Graves Act, a New Jersey law that carries a minimum mandatory sentence of three years. There is a chance the charges could be amended.

New Jersey also has some of the strictest sentencing requirements in the nation for possession of hollow point bullets. If convicted of the charge, Goodson could face a five-year mandatory minimum sentence according to Jenny Carroll, an associate professor of law at Seton Hall Law School, where she teaches criminal law. The gun charge could be dropped for either Goodson or Evans if the police determine who it belonged to, but Carroll said both occupants of a vehicle can still be found guilty of charges relating to one gun or hollow point bullets under a clause called constructive possession.

Read the full ESPN.com article, “Mike Goodson meets with Jets”

Professor John Jacobi In NJ BIZ & NJ Spotlight on New Jersey Health Reform

May 08, 2013

Professor John Jacobi took part in the Council on State Public Affairs' “New Jersey State of Health” symposium, covered by NJ BIZ and NJ Spotlight. The symposium brought together the state’s leading health policy experts to discuss and formulate responses to the challenges wrought by the implementation of the ACA.

NJ Spotlight reports that:

The discussion on the future of long-term future of healthcare followed panel discussions on the implementation of the health benefit exchange and Medicaid eligibility expansion, key features of the 2010 Affordable Care Act that are both scheduled to beginning covering more New Jersey residents on January 1, 2014.

Seton Hall health law professor John V. Jacobi noted the challenge involved in informing uninsured residents about the new options. The exchange will be an online marketplace in which uninsured people can buy coverage and learn whether they are eligible for federal subsidies.

NJ Biz notes that:

Seton Hall Law School Professor John V. Jacobi said that between Medicaid expansion and the subsidized health plans to be sold on the exchange, "there will certainly be hundreds of thousands of people covered," among New Jersey's nearly 1 million uninsured.

"There are several barriers to getting those people covered, and one is the information deficit," Jacobi said. "People who are uninsured are typically very busy people who struggle to make their rent and put food on the table, and they are not engaged in the rollout of the ACA. So getting navigators and health educators and information to those people is going to be very important."

The federal Department of Health and Human Services has allocated $1.5 million to fund navigators in New Jersey, which health care experts have said won't be adequate.

[Assemblyman Herb Conaway Jr. (D-Delran), chair of the Assembly health committee] said outreach to the public will be crucial. The state Department of Banking and Insurance still has an unspent federal grant of nearly $7.6 million it received to help plan a state-run exchange; the state opted instead for HHS to build the exchange for New Jersey. DOBI is talking to HHS about how that money can be used, and Conaway said it's key that navigators get that money.

"It's really going to be those community-based organizations that know how to reach and communicate with (the uninsured) that are going to be so important for reaching the people who need to be in the exchange," he said. "That certainly would be an appropriate use for that money."

Jacobi said the uninsured in New Jersey, "are mostly people associated with the workplace. Most are in families with workers, full-time or part-time workers, and dependents of workers," who either can't afford to buy insurance at their workplace, or their employer doesn't offer it.

Read the NJ BIZ article, “Health panel reveals concerns about Obamacare rollout, future”

Read the NJ Spotlight article, “Healthcare Leaders Envision a Shared Future”

Brian Jacek ‘13 Featured Op-ed in the L.A. Times on Immigration Reform

April 25, 2013

Brian Jacek ’13 co-authored an Op-ed piece with the director of Human Rights Watch's Refugee Program. The piece, featured in the Los Angeles Times, details the legal plight of refugee asylum seekers in the U.S.— including the prohibition against their employment and a dearth of conversation regarding this important aspect of immigration reform.

Jacek and his co-author, Bill Frelick, write:

The time for immigration reform is undoubtedly ripe, and much of the new proposed legislation and public discourse are focusing on work opportunities. But the plight of asylum-seekers who are prohibited from supporting themselves, so far, is not part of the conversation.

In 1980, Congress amended the Immigration and Nationality Act to bring the United States into conformity with its treaty obligations based on international refugee law. From that time, asylum-seekers were authorized to work if they demonstrated that their asylum claim wasn't frivolous. But in 1996, Congress, concerned about a large backlog of cases and what it perceived as abuse of the asylum system, enacted various measures restricting asylum, among them stricter rules about working.

Congress barred asylum-seekers from working legally for 150 days after filing their applications — plus an additional 30 days to process the application — unless they were granted asylum before that time had passed. The clock that counts those days stops any time the government determines that the applicant delayed the proceedings. But in practice, it is unclear precisely what stops and restarts the clock. The problem has affected almost all asylum-seekers. In 2011, the clock had stopped at some point for 262,025 people — 92% of all pending cases — according to the federal Executive Office of Immigration Review. Once the clock stops, so does the opportunity to apply for work authorization, leaving too many asylum-seekers without any means to sustain themselves for many months or years.

Read the full L.A. Times feature Op-ed, “Immigration reform overlooks asylum-seekers”

CSJ Report on Medical Repatriation Featured in Media Across the Country

April 24, 2013

The Center for Social Justice report on medical repatriation was featured everywhere from the Washington Post and the DesMoines Register, Associated Press, UPI Newswire to the Colbert Report, HuffPost Live, AoL Health, Latino Post and Univision’s Noticias. Medical media such as Med News Today and Becker’s Hospital Review as well as the Immigration Law Blog, also covered the story.

In addition, the Associated Press video story, featuring Professor Lori Nessel, was run by television stations across the country. The report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” was co-authored with New York Lawyers for the Public Interest (NYLPI), and details an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs.

Read the Washington Post story, “US hospitals send hundreds of immigrant patients back to home countries to curb cost of care”

See the Colbert Report piece on Medical Repatriation, “Word of the Day: ‘Medical Leave’” (@ 5:02)

Read the DesMoines Register/AP story , “'Medical repatriation'” practice questioned

Read the Latino Post, “U.S. Hospitals Deporting Unconscious Immigrants: Over 600 in Five Years”

Read the UPI Newswire, “U.S. hospitals repatriating sick/injured undocumented immigrants”

See AoL on Health/AP Video News

See HuffPost Live (Video & Live Interview), “Immigration Black Hole”

Read Huffington Post Latino Voices

Read Becker’s Hospital Review

Read Medical News Today

Univision Noticias

Read the Press Release and report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation”

Professor Stephen Lubben in the Wall St. Journal on Chapter 11 Insider Pay Transparency, and lack thereof

April 24, 2013

Professor Stephen Lubben appeared in the Wall Street Journal in an article regarding insider pay transparency in Chapter 11 proceedings.

The Wall Street Journal article details the growing practice in corporate bankruptcy of keeping secret the filing company’s compensation to insiders— top executives, corporate officers, directors, et al.

The article notes that:

A Wall Street Journal review of 250 Chapter 11 cases over the past five years found that 19 companies tried to keep the details of insider pay secret, and 17 were successful. Most that didn't complete the insider-pay forms did so without seeking court permission.

The Journal also notes that:

Not disclosing insider pay—compensation to corporate officers, directors and their relatives—has worked for other companies in Chapter 11, too, even though it is the third question on the official federal forms that all debtors are legally required to complete as part of the price of getting a fresh start in bankruptcy.

RG Steel, whose collapse last year put thousands out of work, identified its top executives only as "Employee A" through "Employee G" when listing what it paid insiders. New York law firm Dewey & LeBoeuf LLP navigated bankruptcy without identifying the firm's top earners. Media giant Tribune Co. didn't reveal the names of insiders who collected $268 million the same year a leveraged buyout put the company on the path to bankruptcy.

"My concern is that there has been a move away from transparency," said Stephen Lubben, professor at Seton Hall University School of Law. "To get the discharge you get from Chapter 11, part of the deal was that you had to lay your cards on the table."

Read the full Wall Street Journal article, “Transparency Is the Rule in Chapter 11—Except for CEOs.”

Professor Charles Sullivan in Reuters on Wal-mart, Revisited

April 17, 2013

Professor Charles Sullivan appeared in a Reuters newswire article regarding the renewed efforts of original plaintiffs in Dukes v. Wal-mart to gain class certification for an employment discrimination case against Walmart. In 2011 the U.S. Supreme Court ruled that the original case, which included 1.5 million current and former Wal-mart employees, could not go forward as a class action, noting the size of the case, which the Court deemed unwieldy.

Reuters notes that

With the national class action dismantled, the plaintiffs have instead tried to pursue regional class cases in federal courts in California, Tennessee, Texas, Florida and Wisconsin. Because the case in the Northern District of California is a direct spin-off of the Dukes case, it is the furthest along procedurally.

In the California lawsuit, as in the other regional ones, female workers are alleging that Wal-Mart denied them promotions and pay raises.

Reuters also notes that,

Even with a regional class, though, the plaintiffs could face the same problems that the Supreme Court identified in the original proposed class action, according to Charles Sullivan, a law professor at Seton Hall Law School who specializes in employment law.

"They have to find something common to each worker," he said. "What did Wal-Mart do, or this region of Wal-Mart do, that makes each worker have the same problem?"

U.S. District Judge Charles Breyer is expected to hold a hearing on the class certification issue this summer.

Read the full article, “Wal-Mart plaintiffs, in second try, hope to distinguish case”

The case is Betty Dukes v. Wal-Mart Stores Inc., U.S. District Court for the Northern District of California, No. 01cv2252.

Center for Policy & Research Report on Spying on Attorneys at GTMO Featured in Major Media

April 12, 2013

The most recent report from the Center for Policy & Research, “Spying on Attorneys at GTMO,” was featured in Harper’s, the Huffington Post, Mother Jones, the Center on National Security, the American Constitution Society’s Law & Policy and Andrew Sullivan’s Dish.

Harper’s “A Final Act for the Guantánamo Theater of the Absurd?”

The Huffington Post, “Guantanamo 'Spying' Threatens Military Commissions: New Report”

Mother Jones, “The Gitmo Hunger Strike May Be the Biggest Act of Civil Disobedience in the Camp's History”

American Constitution Society, “Reports Shine Light on Legal Chaos at Gitmo”

Andrew Sullivan, “Obama’s Gitmo Disgrace”

Center on National Security, “Op-Eds and Must Reads”

The Report, “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship,” and press release

Professor Michael Simkovic in FoxBusiness on employee personal liability for company credit cards in the wake of company bankruptcy.

April 03, 2013

Professor Michael Simkovic appeared in FoxBusiness on the prospect of employee personal liability for company credit cards in the wake of company bankruptcy.

The article notes that:

If you have spent money on a credit card for business expenses, whether you are responsible for it "depends whether the employee signed as a responsible party on the agreement between the employer and the card issuer," says Edward Boltz, president of the National Association of Consumer Bankruptcy Attorneys and partner in the North Carolina-based Law Offices of John T. Orcutt.

The article further notes:

So how do you know if you could be held responsible for your charges? Check the fine print on your application or the agreement that comes with the card, says Rosenbaum.

Which can be easier said than done.

"Agreements are famously difficult to understand, even for people who have training," says Michael Simkovic, associate professor at Seton Hall University School of Law.

But don't rely on what your own company rep tells you, he cautions. "They can sometimes make mistakes."

Read the full FoxBusiness article, “Who Pays Your Expenses if Your Company Goes Bankrupt?”

CSJ on Grand Ravine Massacre In the Washington Post, Miami Herald, Anchorage Daily, et al.

March 29, 2013

The Center for Social Justice was featured in an Associated Press story on its work to bring justice to the victims of the Grand Ravine Massacre in Haiti. The article ran in the Washington Post, Huffington Post, Miami Herald, Anchorage Daily, Kansas City Star, and points in between.

The article notes that:

A Haitian attorney wants a human rights commission to hold Haiti's government accountable for failing to provide reparations to the victims of a 2005 massacre at a soccer stadium and related attacks the following summer.

Evel Fanfan and attorneys from the Seton Hall University School of Law Center for Social Justice have filed a petition before the Washington-based Inter-American Commission on Human Rights on the victims' behalf.

In December 2012, the Center for Social Justice, under the direction of Professor Lori A. Nessel, and AUMOHD, a Haitian human rights organization, filed the petition with the Inter-American Commission on Human Rights in an effort to obtain accountability and justice for this community.

The case started when Evel Fanfan, the director of AUMOHD (Association des Universitaires Motivés pour une Haiti de Droits), a human rights organization, became frustrated by the inaction of the Haitian government, and decided to look outside of Haiti’s borders for accountability for the massacre.

He found an ally in the Center for Social Justice. Since then, Seton Hall law students have been a driving force behind this case at every stage. Under the supervision of Professors Lori Nessel and Rachel Lopez, Seton Hall law students have been representing Evel Fanfan in this work, including the filing of the petition before the Inter-American Commission on Human Rights mentioned in the A.P. article, but also interviewing the survivors of the massacre, submitting a request for precautionary measures to protect Evel’s life after he was the target of an assassination attempt, and engaging in broad letter-writing campaigns and public advocacy.

Building upon the law school’s long history of supporting the rule of law in Haiti, students from Seton Hall Law launched a human rights campaign to support the survivors of this Haitian massacre. During their spring break in March 2013, students who were part of the Haiti Rule of Law Program delegation met with residents from Grand Ravine, the neighborhood in Port-au-Prince which was subjected to the 2005 massacre at a soccer match and continued attacks afterwards.

The students were moved by what they had seen in Haiti. After returning home, they sprang into action to raise awareness about the case and collect funds for the victims, many of whom lost a relative and their homes during the attack. The students used victim testimonials that they recorded in Haiti to create a video documentary, raised funds through a bake sale and silent auction, and started a petition to urge the Inter-American Commission on Human Rights to take the case. To kick off the campaign, the law school hosted Evel Fanfan, the director of AUMOHD and co-counsel in the case filed before the Inter-American Commission on Human Rights, who gave a presentation on the case at the law school. The students also launched a website that features the video documentary as well as photography depicting Grand Ravine and its residents.

Visit the Grand Ravine Massacre website which includes links to a petition to sign which urges the Inter-American Commission on Human Rights to take the Grand Ravine Massacre Case (the petition and the website associated with such is an independent endeavor; Seton Hall Law School is not responsible for content therein nor does it necessarily agree with the views expressed).

Read the article, “Haiti Massacre Victims Seek Human Rights Help”

in the:

Associated Press, which was run by the Washington Post, Huffington Post, Miami Herald, Kansas City Star and Anchorage (Alaska) Daily among others

Huffington Post Impact

Professors Jonathan Hafetz & Mark Denbeaux Featured in The New Yorker on GTMO

March 18, 2013

Professors Jonathan Hafetz and Mark Denbeaux as well as a report from the Center for Policy & Research were featured in The New Yorker magazine in an article profiling the “War on Terror” and Guantanamo Bay in a legal historical context.

The New Yorker article, “The Dark Ages: A Critic at Large,” details the origin of the “War on Terror” and reflects on law and process, due or otherwise, through the ages. Professor Hafetz’s book, "Habeas Corpus After 9/11: Confronting America's New Global Detention System," is cited as is his book co-edited with Professor Denbeaux, “The Guantanamo Lawyers: Inside a Prison, Outside the Law."

In addition, The New Yorker article cites as the seminal Center for Policy & Research “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data.”

Jill Lepore, author of The New Yorker article, writes:

The spread of such torture around the world is the subject of "Habeas Corpus After 9/11: Confronting America's New Global Detention System," by Jonathan Hafetz, who teaches at Seton Hall, and of "The Guantanamo Effect," which is based on interviews with sixty-two former detainees, conducted by Laurel E. Fletcher, the director of the International Human Rights Law Clinic, at Berkeley, and Eric Stover, the director of Berkeley's Human Rights Center. In Afghanistan alone, procedures authorized in the torture memos were used by the C.I.A. at several sites, including a facility in Kabul known as the Dark Prison (where prisoners were not allowed to see the light) and Bagram Air Base, where, in 2002, two men were tortured to death: both died while chained to the ceiling of their cells. Eliza Griswold, writing in The New Republic, quoted a former interrogator who described Bagram as echoing with "medieval sounds." The medieval dungeon: the scrape of shackles, the screams of agony, the groans of despair.

For a time, Americans interrogating suspected terrorists were not answerable to any rules, except those made, ad hoc, by the Bush Administration. The White House's answer to terrorism, which is an abandonment of the law of war, was the abandonment of the rule of law.

And that:

Meanwhile, reporters, lawyers, and human-rights activists had been investigating the conditions under which the prisoners were being held. "The Guantanamo Lawyers: Inside a Prison, Outside the Law," edited by Mark P. Denbeaux and Jonathan Hafetz, is an anthology of reminiscences by more than a hundred lawyers who defended the detainees. "I would have confessed to anything to get my leg back," a prisoner named Abdul Aziz Naji told his attorney, Ellen Lubell, "but I didn't know what they wanted me to say." Naji lost his leg to a land mine, and his prosthetic was broken by U.S. soldiers at Bagram. At Guantanamo, he was given a replacement that didn't fit; he pulled his stump out of it, to show Lubell, leaving the prosthetic, outfitted with a white sneaker, still shackled to the floor. "I knew I had come to the heart of a new kind of irony," Lubell writes.

Stories began to emerge about the abuse of prisoners. Photographs from Abu Ghraib were broadcast on "60 Minutes II" on April 28, 2004, eight days after oral arguments were heard in the Supreme Court in Rasul v. Bush, a case concerning the jurisdiction of the federal courts over the habeas claims of fourteen Guantanamo prisoners. Opposition grew, especially after the Bush Administration memos were published in "The Torture Papers," edited by Karen J. Greenberg and Joshua L. Dratel, and the chilling story behind them was reported by Jane Mayer in her book "The Dark Side." Doubts were raised about whether many of the men sent to Guantanamo should have been arrested at all. In 2006, a team from Seton Hall School of Law released a study of the five hundred and seventeen prisoners then remaining at Guantanamo; according to Department of Defense data, only five per cent of these men had been captured by U.S. troops; at least forty-seven per cent had been arrested by Pakistani or Northern Alliance forces during the months when the U.S. government was offering bounties.

Read The New Yorker article, “The Dark Ages: A Critic at Large.”

Read The New Yorker (subscription)

Professor John Jacobi featured in The Record on how the lack of a state-run health insurance exchange under the health reform law is ‘a lost opportunity’ for New Jersey

March 17, 2013

Professor John Jacobi appeared in a feature Op-ed in The Record, describing the veto of New Jersey’s health insurance exchange bill as “a lost opportunity.” Professor Jacobi writes:

MANY STATES are gearing up their health insurance exchanges to accept new enrollees in October. Others, including New Jersey, have refused to do so, leaving the management of these important new institutions to the federal Department of Health and Human Services.

Although he announced in budget address last month that New Jersey would expand its Medicaid program, Governor Christie left unchanged his veto of the state’s exchange law. When he vetoed the Legislature’s bill that would have created a New Jersey exchange, Christie decided to leave the task to the federal government, citing the possible costs the state would incur running the exchange.

The governor was correct that there would have been costs, notwithstanding the offer of extensive federal funding. And the rejoinder of some opponents of the governor’s position — that the costs could be covered by assessments on insurers — is too easy an answer. Insurance assessments, after all, raise the cost of coverage for individuals and businesses.

But the burden of the assessments was worth the cost, and, as I describe below, the risk of pushing the task off to the federal government puts the most vulnerable of New Jersey’s residents at risk.

Read The Record’s article, featured Op-ed, “Health reform: a lost opportunity.”

Professor Jonathan Hafetz On the Rachel Maddow Show, and in the Star Ledger and Huffington Post

March 10, 2013

Professor Jonathan Hafetz appeared on the Rachel Maddow Show and in the Star Ledger regarding Guantanamo and the military commission hearings and in the Huffington Post on Drones and legal review.

When asked about the prospects of release from Guantanamo for detainees, Professor Hafetz noted in his interview with Rachel Maddow that:

The only ways to get out of Guantanamo at the moment—there are two ways, to be blunt: you can either die in prison or you can be convicted by a military commission for war crimes and given a sentence which, in many cases (except for the 9/11 perpetrators), might just be the time you served—so you can get sent home.”

In a feature Sunday Q&A with the Editor, the Star Ledger writes:

The Star Ledger spoke recently with Jonathan Hafetz, a Seton Hall Law School professor and author of “Habeas Corpus after 9/11: Confronting America’s New Global Detention System.” An expert on civil rights, national security, and criminal and constitutional law, Hafetz has represented several Guantánamo detainees for access to the U.S. legal system. An edited transcript appears here.

Q. Let’s start big: More than four years ago, candidate Obama promised to close Gitmo. President Obama gave the order. Yet it remains open. What gives?

A. The failure to close Guantánamo is the product of several unfortunate circumstances and decisions. One factor is that President Obama failed to close Guantánamo within the critical first six months to a year of his administration, when there was a momentum and a window to act. For example, President Obama did not take one of the most important steps toward closing Guantánamo, which was bringing at least some prisoners to the United States who had been proven not to be enemy fighters and who the government agreed posed no danger. But at the first sign of political resistance, the administration buckled.

That made it more difficult to resettle other detainees in third countries. The other major mistake was the administration’s reversal of the initial decision of Attorney General (Eric) Holder to try Khalid Sheikh Mohammed and the other 9/11 co-conspirators in federal court in New York. When there was a backlash in New York and in Congress, Holder eventually decided to try Khalid Sheikh Mohammed and his co-conspirators in a military commission at Guantánamo — which has already proved a disaster for due process and the rule of law.

Congress has continued to erect a series of incredibly high hurdles to closing Guantánamo, including barring the transfer of any detainee to the United States for any purpose, including continued detention or trial.

It is unlikely Guantánamo will close anytime soon. Even those cleared for release by the administration — roughly half of the 166 prisoners who remain at Guantánamo — will likely be stuck there in legal limbo.

In the Huffington Post, where Professor Hafetz is a regular featured columnist, Professor Hafetz writes:

Should a federal judge review the government's decision to launch a lethal drone attack against a suspected terrorist? A recently released Justice Department white paper on the targeted killing of a U.S. citizen has prompted calls for judicial intervention. While the instinct is right, any review scheme must strike the correct balance between liberty and security.

See the Rachel Maddow interview here, Rachel Maddow (@ 11:31).

Read the Star Ledger article, “Obama's broken promise: A Q&A on Guantanamo Bay.”

Read the Huffington Post article, “Reviewing Drones.”

Professor John Jacobi in The Record on ‘How Medicaid expansion will help New Jerseyans’

February 27, 2013

Professor John Jacobi published a feature Op-ed in The Record, New Jersey’s most awarded newspaper, on the impact Governor Chris Christie’s decision to expand Medicaid under the ACA will have.

Professor Jacobi writes:

GOVERNOR CHRISTIE’S decision to expand Medicaid coverage to more residents will improve the health of many low-income New Jerseyans, and save the lives of some. In addition, the expansion dovetails with other reform efforts in the state, furthering implementation of innovative programs for the poor and vulnerable.

The governor’s announcement is great news for low-income individuals. The Rutgers Center for State Health Policy estimates that the expansion will lead to an enrollment increase of about 234,000 in NJ FamilyCare, which combines New Jersey’s Medicaid and Children’s Health Insurance Program.

The expansion addresses gaps in the current Medicaid system, under which many poor people were ineligible even if they had absolutely no income or assets.

The expansion will plug those gaps, allowing people to enroll so long as they are lawful residents with an income of no more than about $15,414 per year, which is about the gross income of a full-time minimum wage worker.

Health insurance coverage is important to personal health, and it is simply not true that all Americans have meaningful access to health care. As the Institute of Medicine of the National Academy of Sciences has found, people who have health insurance — including Medicaid — have better access to a regular source of health care. Those with no coverage, in contrast, are more likely to do without medically necessary care, particularly for chronic conditions, and to not fill prescriptions due to cost.

As a consequence, the uninsured are more likely to be in “fair” or “poor” health — and to die before their time. Medicaid expansion will keep people healthy and even save lives.

Read the full feature in The Record, “How Medicaid expansion will help New Jerseyans”

Again Named A “Top-50 ‘Go-To’ Law School”

February 25, 2013

Seton Hall Law was again named a “Top 50 Go-To Law School” by the National Law Journal (NLJ). The NLJ “ranked the top 50 law schools by the percentage of 2012 juris doctor graduates who took jobs at NLJ 250 firms,” the nation's largest law firms.

With over 10% of Seton Hall Law School’s graduated students going to NLJ 250 firms in 2012, the National Law Journal ranked Seton Hall Law 37th in the nation. In addition, the NLJ ranked law schools according to most Associates promoted to Partner in 2011 by America’s largest law firms; Seton Hall Law ranked 45th in the nation.

Claudette St. Romain, Associate Dean of Academic Affairs, remarked, “It’s clear that even within a challenging legal environment, Seton Hall Law graduates continue to compete and practice at the highest levels of the profession. And as our success has grown— with newly hired students finding fellow alumni fully enmeshed as Associates and Partners at the nation’s largest law firms, we’ve built a network that stands poised now to mentor the next generations of success.”

She further noted, “Seton Hall Law has strong, longstanding relationships with many of the NLJ 250 firms, and those relationships grow stronger with each graduating class, Associate placed and Partner promoted. We send bright, hard-working, well-prepared graduates to these firms; as those graduates progress and grow in their careers, they look to bring more Seton Hall grads to their firms.”

See the National Law Journal “Top 50 Go-To Law School” Ranking here.

See the National Law Journal “Associate to Partner” Rankings here.

Professor Stephen Lubben Feature Column in The New York Times on the Bankruptcy Clause

February 25, 2013

Professor Lubben, who writes a regular column for the New York Times’ DealBook section, recently published an article on the Constitution’s Bankruptcy Clause, considering it from a historical perspective in relation to Dodd-Frank’s orderly liquidation authority—and the challenge thereto.

Professor Lubben writes:

The litigation against the Dodd-Frank Act’s orderly liquidation authority continues, with an amended complaint filed last week, adding a few more states to the mix, and the deadlines with regard to the government’s motion to dismiss reset accordingly.

The revised complaint (see below) continues to assert that the authority “constitutes an exercise of Congress’s power under the Bankruptcy Clause.”

The Bankruptcy Clause – Article I, Section 8, Clause 4 of the Constitution – is something of an oddball. After all, Congress was already granted the power to regulate interstate commerce in the clause just before, so why single out bankruptcy for separate treatment? And why lump bankruptcy with nationalization?

To the extent the Bankruptcy Clause is given any thought at all, the modern conception of the clause is to assume it part of a larger Hamiltonian effort to federalize the economy: the Commerce Clause, the Bankruptcy Clause and the Contracts Clause, combined perhaps with the Supremacy Clause and the Necessary and Proper Clause, working together to provide that the most important aspects of commerce are federalized, and kept from piecemeal regulation by the states. Indeed, this conception has probably been the most common understanding for almost a century.

But is orderly liquidation authority even an exercise of Congress’ power under the Bankruptcy Clause?

It’s a little unclear, because Congress did not say what power it was exercising when it enacted Dodd-Frank. Presumably, some parts are enacted under the Commerce Clause, but it is plausible that the authority comes under the Bankruptcy Clause, whether Congress knew it or not. After all, there are reasons to doubt whether Congress can enact debtor-creditor law under any other part of the Constitution.

Read the full NY Times DealBook article, “Liquidation Authority and the Bankruptcy Clause.”

Professor David Opderbeck on the TV show Outlook regarding Cybersecurity and China

February 23, 2013

Professor David Opderbeck appeared on the TV Show Outlook, regarding cybersecurity in the wake of allegations that China has utilized computer hackers against American companies and government agencies.

Outlook, is a news and events talk show on EBRU TV, which boasts a viewership of 11 million worldwide.

Professor Opderbeck, who is Director of the Gibbons Institute of Law, Science & Technology and has worked extensively in the emerging field of Cybersecurity Law, noted for the panel that “we should be worried. And the more important aspect of the threat is the problem of intrusion into what we call ‘critical information infrastructure’ It has been shown, for example, that our power grids can be vulnerable; it has been shown that our water plants can be vulnerable. You wouldn’t think so but all of these things are controlled by various technologies that are vulnerable to cyber-attacks. So it is a real concern and there are some real threats we have to think about.”

See the video of Professor Opderbeck on Outlook

Research Fellow & Lecturer in Law Tara Ragone in Modern Healthcare on potential impact of U.S. Supreme Court hospital antitrust decision

February 23, 2013

Research Fellow & Lecturer in Law Tara Ragone appeared in Modern Healthcare on the potential impact of a recent U.S. Supreme Court decision which found a hospital not exempt from antitrust scrutiny, despite its claim to be protected from such through “state action immunity doctrine,” which, according to Modern Healthcare, “gives states wide latitude to regulate competition.”

The Court’s decision was unanimous, citing the fact that although the hospital system in question, Phoebe Putney Health System, “operates public hospitals under a $1-a-year lease from the Albany-Dougherty Hospital Authority,” it did not dispute that its latest hospital acquisition would give it “control of 86% of a six county market after the sale.” The Court, according to Modern Healthcare, ruled that Phoebe Putney’s financial relationship with the state was not sufficient to render its state action immunity defense tenable, and that “states must expressly grant antitrust immunity to local entities.”

The Modern Healthcare article notes, however, that the decision may also have impact on Medicaid ACOs under the ACA.

Modern Healthcare writes:

And it also could affect Medicaid ACOs. “The state action doctrine has been expanded, expanded, expanded to essentially immunize them,” [Matthew] Cantor said. “The Supreme Court is going to look a bit wary about stark anti-competitive behavior.”

But Tara Adams Ragone, a research fellow and lecturer at Seton Hall University School of Law who has written about how to structure Medicaid ACOs to avoid antitrust scrutiny, noted that the laws in New Jersey, New York, Oregon and Washington do state that they intend to authorize anti-competitive behavior.

“It doesn't change things from my analysis,” she said about the Phoebe Putney decision. Yet she added that states may have to review statutes that don't contain that explicit language.

The Phoebe Putney decision also doesn't address the second prong of the state action doctrine, which requires states to actively oversee the anti-competitive behavior. “That's where there's a lot of work to be done,” she said.

Ragone and Cantor pointed out that it's still unclear whether the FTC and U.S. Justice Department even intend to challenge ACOs as anti-competitive. A classic antitrust case involves entities colluding to fix prices—but the whole goal of an ACO is to reduce costs.

Read the full Modern Healthcare article, “Phoebe Putney dealt legal blow by Supreme Court.”

Paulette Brown ‘76 Uncontested Nominee for President of the ABA

February 12, 2013

Paulette Brown ’76, a partner at Edwards Wildman, is the uncontested nominee to head the American Bar Association in 2015. She will be the first woman of color elected President of the ABA and, according to the New Jersey Law Journal, her nomination was met by a standing ovation at the ABA’s mid-year conference in Dallas.

The historic nomination was featured in legal news sources such as the ABA Journal, Law 360 and the New Jersey Law Journal. The ABA Journal reports that Ms. Brown’s

...election is virtually assured. Under ABA rules for selecting its presidents, the Nominating Committee will formally select Brown as president-elect nominee at the 2014 ABA Midyear Meeting in Chicago. Then she will be elected by the House of Delegates at that year's Annual Meeting in Chicago before starting her one-year term as president at the close of the 2015 Annual Meeting in Chicago.

The New Jersey Law Journal reports:

Paulette Brown, a longtime advocate for diversity in the profession, is the uncontested nominee for American Bar Association president in 2015, which would make her the first minority woman to hold the post.

She would also be the first ABA president from New Jersey in more than 50 years.

Brown, 61, a labor and employment partner at Edwards Wildman Palmer in Madison and the firm’s chief diversity officer, was named Feb. 10 to a standing ovation before the Nominating Committee at the ABA’s midyear conference in Dallas.

Assuming Brown remains the lone nominee, she’ll be up for a committee vote at the next midyear conference, scheduled for February 2014. She’ll need a simple majority — 34 of the 67 members’ votes — to be nominated officially as president-elect.

The next step would be approval by the ABA House of Delegates at the annual meeting that August. Her term would begin at the conclusion of the following year’s annual meeting.

“People view this as a very, very positive step,” Brown told the Law Journal last Monday. “At the same time, they recognize that it’s not an end. … We have more work to do” in the diversity realm, she says.

Wayne Positan, New Jersey’s representative in the ABA House of Delegates, who made the nomination, said he had discussed it with Brown as early as 2009. “It’s not because of her color — it’s because she’s qualified,” says Positan, a partner at Lum, Drasco & Positan in Roseland.

Brown has been active in the ABA since the start of her career, beginning with service as New Jersey delegate to the Young Lawyers’ Division in 1976-78. She has been a member of the House of Delegates since 1995, sitting on various committees, and was on the Board of Governors in 2008-10, serving on the Executive Committee and chairing the Program Evaluation & Planning Committee.

Brown served on the Commission on Women in the Profession from 2004 to 2007, co-chaired the Committee on Women of Color and co-authored a report, “Visible Invisibility: Women of Color in Law Firms.”

She also was president of the National Bar Association, the principal nationwide African-American bar group, in 1993-94, and currently is second vice chairman of the N.J. State Bar Association’s Labor and Employment Law Section.

She led a delegation to monitor the first democratic elections in South Africa in 1994.

Brown, a graduate of Howard University in 1973 and Seton Hall University School of Law in 1976, was an in-house lawyer for National Steel Corp. from 1976 to 1978, for Prudential Ins. Co. from 1978 to 1980, and for Buck Consultants Inc. from 1980 to 1984.

In 1984, she founded Brown & Childress in East Orange, which in 1993 merged with another firm to become 13-lawyer Brown, Lofton, Childress & Wolfe — the state’s largest minority firm at the time. Brown was managing partner and remained there until 1999.

Brown was with Duane Morris in Newark from 1999 until 2005, when she joined Edwards & Angell in Short Hills, which after a series of mergers became part of Chicago-based Wildman, Harrold, Allen & Dixon in October 2011.

Brown is chief diversity officer for the firm, which has about 660 lawyers globally. Her practice focuses on employment litigation and defending employers in discrimination actions, including class actions.

Alan Levin, chairman of Edwards Wildman, says the firm is “very excited to have one of our partners … nominated for this position. We think it speaks highly of our firm’s commitment to the ABA.”

He says Brown has been “driving the firm forward in not just paying lip service to diversity” but in helping craft programs and educate administrators on race issues, a role that has required her to travel to each of more than a dozen offices.

Louis Childress Jr., with whom Brown founded Brown & Childress, says Brown was “really a key reason” for the firm’s growth. “Where she is now is probably a logical progression in her legal career,” says Childress, who’s still with the East Orange firm, now Childress & Jackson. “She always yearned and wanted just a little bit more.”

Karol Corbin Walker, a longtime friend and colleague of Brown who became the New Jersey State Bar Association’s first black president of either gender in 2003, calls Brown “immensely qualified.”

“She’s been with the big firms, she’s been with the small firms,” says Walker, a partner at LeClairRyan in Newark who was in attendance at the Nominating Committee meeting in Dallas.

Brown fielded committee questions about what new initiatives she’d seek to launch and her methods for drawing young lawyers to join the association, among other subjects. She now is “meeting with as many people as possible” for input, she says.

One issue of “ongoing importance and concern,” says Brown, is one that was discussed at length throughout the midyear meeting: the possible restructuring of law school programs to include less classroom time and more hands-on, practical work experience.

The ABA is holding public hearings. There is no concrete proposal on the table yet. “I don’t have a firm position because I’m still in the process of gathering information,” says Brown, a council member of the ABA Section of Legal Education and Admissions to the Bar.

Once Brown assumes the presidency, she’ll suspend her practice, but will remain chief diversity officer and will play a marketing role for the firm, maintaining contact with key clients. She says the presidential role is “going to be quite time-consuming,” including extensive travel, speaking engagements and promotion of the association.

Brown would be the ABA’s sixth woman president since its inception in 1878, and the third African-American. The first was Dennis Archer of Michigan, in 2003-04, followed immediately by Robert Grey Jr. of Virginia in 2004-05.

She would be the fourth ABA president hailing from New Jersey.

The first was Newark attorney Cortlandt Parker, in 1883. Parker was Essex County’s prosecutor for a decade and practiced with U.S. Supreme Court Justice Joseph Bradley and U.S. Sen. Frederick Frelinghuysen.

The second was Newark’s Sylvester Smith Jr. in 1962. Smith spearheaded a nationwide ABA initiative to better represent indigent defendants accused of crimes. At the time, two-thirds of the states had no organized public or private public defender programs.

New Jersey’s third ABA president was Arthur Vanderbilt, in 1937. At 49, he was the youngest lawyer ever elected. He became the first chief justice after the state’s adoption of its modern constitution in 1947.

Read the ABA Journal article, “New Jersey Lawyer Expected to Be First Woman of Color to Lead the ABA.”

Read the Law360 article, “NJ Labor Atty Slated As 1st Minority Woman to Head ABA.”

Read the New Jersey Law Journal article, “New Jersey Labor Lawyer to Be First Minority Woman to Head ABA."

Professor Jonathan Hafetz in Bloomberg News on S.D.N.Y. ruling regarding indefinite military detention

February 06, 2013

Professor Jonathan Hafetz appeared in Bloomberg News on a decision by recently appointed Judge Katherine Forrest of the United States District Court for the Southern District of New York, which, according to Bloomberg News, blocked the executive branch “from enforcing part of the National Defense Authorization Act for 2012, rejecting arguments that she should defer to congressional and executive authority in national security matters. The plaintiffs in the case said the law permits the military to arrest U.S. citizens for exercising their freedom of speech and of the press.”

Bloomberg further notes,

“It’s a bold ruling and a potentially sweeping ruling,” said Jonathan Hafetz, a national security and constitutional law expert who teaches law at Seton Hall University in New Jersey. ‘It’s going to confront significant issues on appeal.”

Hafetz, who has represented accused terrorists held at the U.S. naval base at Guantanamo Bay and elsewhere, is the author of “Habeas Corpus After 9/11: Confronting America’s New Global Detention System.” Hafetz said Forrest’s opinion failed to adequately address earlier rulings on the 2001 law.

Read the Bloomberg News article, “Military Arrest in Doubt as U.S. Fights Rookie Judge.”

Assistant Clinical Professor Margaret Martin published a feature Op-ed in The Record regarding the prospect of comprehensive immigration reform in the coming year.

February 03, 2013

Assistant Clinical Professor Margaret Martin published a feature Op-ed in The Record regarding the prospect of comprehensive immigration reform in the coming year.

Professor Martin writes:

WE HAVE always been a nation of immigrants. Today, more than 200 years after our nation’s founding, immigrants represent 13 percent of the U.S. population, down just slightly from a high of 15 percent more than a century ago. According to Pew Hispanic Research, among those 40.4 million immigrants for whom the U.S. is home, 11.1 million are undocumented.

For the first time since the Immigration Reform and Control Act was enacted in 1986 under President Reagan, the federal government is poised to pass comprehensive immigration reform….

And notes that, regarding what are commonly referred to as “DREAMers,” young people who came to this country when they were children,

For those who have worked with some of these young people, the proposal is particularly gratifying. Since last August, nearly half a million of these young people have already come forward to apply for a merely temporary program called Deferred Action for Childhood Arrivals, or DACA, which the Obama administration implemented last summer.

DACA is a welcome policy, as it grants relief from removal for two years and the chance to work during that time. However, it could never be anything but a short-term solution.

At Seton Hall Law School’s Center for Social Justice, we have assisted a number of young DACA applicants eager to receive work authorization and register themselves with the federal government, hopeful even before the election that this temporary status might someday become permanent.

My students have represented DACA applicants who come armed with school diplomas, tax returns, family photographs and many other accoutrements of their lives as Americans, but without any right to be here.

Read the full feature Op-ed, “Immigration moves to the forefront.”

Dispatch from GTMO Covering KSM Hearing for The Public Record

January 30, 2013

Adam Kirchner, a Fellow of the Center for Policy and Research, visited the Guantánamo Bay Military Base with official Observer status, as a representative of Seton Hall Law’s Transnational Justice Project and the Center for Policy and Research, to observe military commissions, the tribunals established to try detainees for alleged war crimes. Kirchner’s reports on the KSM, et al. hearings were published in The Public Record.

Read The Public Record reports:

Day 1, “The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And ‘Who is Controlling These Proceedings?”

Day 2, Guantanamo Military Commissions: “Only The Judge Is In Control, Except When He Isn’t.”

Professor Edward Hartnett In Bloomberg News and Daily Kos on NLRB Recess Appointments

January 28, 2013

Professor Edward Hartnett appeared in Bloomberg News and the Daily Kos on a recent decision by the U.S. Court of Appeals, Washington, D.C., unanimously ruling that President Obama’s appointments to the National Labor Relations Board were unconstitutional.

Bloomberg writes:

U.S. Court of Appeals in Washington sided last week with Republican lawmakers who claimed the 2012 appointments to the National Labor Relations Board were unconstitutional. The picks, made after Republicans refused to consider Obama’s nominees, were “constitutionally invalid” because the Senate wasn’t in recess at the time, the panel held. The court went further, saying valid appointments could only be made for vacancies that occurred while the Senate was adjourned.

If the Washington court ruling is upheld by the U.S. Supreme Court, then it may mean the Senate has always had the power to block recess appointments, according to Edward Hartnett, a constitutional law professor at Seton Hall University.

“To conclude the D.C. circuit is right you’d have to conclude that presidents dating back to at least James Madison have been wrong,” Hartnett said in a telephone interview. “For a practice that presidents have engaged in since close to founding of our nation, it’s hard to conclude that all acted unconstitutionally.”

Read the Bloomberg News article, “Obama Defeat on NLRB Picks a Rare Loss on Recess Power.”

Read the Daily Kos article, Court ruling threatens not just 200 labor board cases, but recess appointment power.

Professor Solangel Maldonado Featured in the NY Times on Tribal Rights and Adoption

January 24, 2013

Professor Solangel Maldonado, published a feature Op-ed in the New York Times regarding “Adoptive Parents vs. Tribal Rights” and the matter of identity as an American Indian as it relates to the federal Indian Child Welfare Act.

Entitled, “Deciding Who Is an American Indian,” and noting her exception to the practice in some states of defining qualification under the Indian Child Welfare Act as being contingent upon adherence or a lack thereof of certain “cultural makers,” Professor Maldonado writes:

Does cooking fry bread or participating in stomp dances make you an Indian? The South Carolina Supreme Court seems to think it might. It concluded that the biological family of the baby, Veronica, has “a deeply embedded relationship with the Cherokee Nation,” and noted as evidence of this relationship that the family cooked traditional Indian foods like “Indian cornbread, Indian tacos, wild onions, fry bread, polk salad and deer meat,” participated in stomp dances and had decorative Native American pieces in their home.

In some states, these cultural markers of Indian identity have real consequences for Indian children. The federal Indian Child Welfare Act applies to adoptions of an “Indian child” and explicitly applies to “the biological child of a member of an Indian tribe.” However, a small minority of state courts have held that this law does not apply if the child was not part an “existing Indian family” — for example, where an unmarried non-Indian mother voluntarily relinquished an Indian child for adoption at birth or where the court determined that the Indian parent did not have significant social, cultural or political ties with an Indian community. These courts have reasoned that the Indian Child Welfare Act's purpose of preserving tribal families is not furthered when the child, if raised by her birth parents, would not be raised in a culturally Indian home.

Would a court ask an African-American parent whether he prepared traditional African-American foods or celebrated Kwanzaa?

If this law’s protections are based on tribal sovereignty and the preservation of tribal culture — and not race — then the existing Indian family exception might initially have some appeal. However, the U.S. Supreme Court should applaud the overwhelming majority of states that have rejected the exception for three reasons. First, the exception undermines the law’s explicit purpose of keeping Indian children in Indian communities. Second, by requiring evidence of social, cultural and political ties to the tribe, courts infringe on tribes’ exclusive authority to decide who has satisfied the requirements for tribal membership -- who is an Indian. Third, the exception perpetuates stereotypes about who is authentically Indian. While the South Carolina Supreme Court made note of the foods and artifacts in Indian homes, other courts have asked whether the Indian parent contributed to Indian charities, subscribed to Indian periodicals or participated in Indian religious and cultural events.

Read the full feature NY Times, Op-ed, “Deciding Who Is an American Indian.”

Professor Stephen Lubben In The New York Times on Preferential Payment and Government Default

January 18, 2013

Professor Stephen Lubben, who writes a regular feature column in The New York Times’ DealBook, most recently wrote on the subject of preferential payment in the context of government defaults. Professor Lubben noted that

If a corporation or an individual pays some creditors, but not others, bankruptcy lawyers call that a voidable preference.The preference allows the creditor to get more than it would in the collective bankruptcy process, so the extra bit can be recovered by the bankruptcy trustee.

Preferences are also at issue in the Argentine debt litigation. The Federal District Court in Manhattan has ruled that Argentina can’t pay cooperative creditors while stiffing the uncooperative ones.

Considered in this broader context, the suggestion that the United States should prefer some creditors over others seems somewhat problematic, to put it politely. But that is precisely what some, particularly House Republicans, have suggested the government should do if the $16.394 trillion debt limit is not raised and the United States runs out of cash to pay its bills.

Read the full DealBook article, “An Argentine Parallel.”

Professor Jenny-Brooke Condon On U.S. Drone Warfare

January 18, 2013

Professor Jenny-Brooke Condon appeared on EBRU TV, broadcast to 11 million people worldwide, in a feature interview regarding the use of drones by the U.S. for military purposes. Professor Condon noted that the technology has been used to attack and kill well outside of war zones, further citing the use of drones to target and kill at least one American citizen amidst countless others. Professor Condon also noted as problematic the lack of Congressional oversight or judicial review.

See the feature interview on drone warfare on EBRU TV.

Professor Jenny Carroll On BBC News and Hollywood.com on Lance Armstrong

January 15, 2013

Professor Jenny Carroll was interviewed by BBC News and Hollywood.com regarding Lance Armstrong and the prospect of perjury or obstruction of justice charges in the wake of Armstrong’s interview with Oprah.

Professor Carroll noted for the BBC that from a criminal law perspective any admission Armstrong might have made referenced actions that would now seemingly be covered by the 7 year statute of limitations regarding perjury.

Listen to the BBC News interview here

Read the Hollywood.com story, “Lance Armstrong Confesses to Doping in Oprah Interview — Could He Face a Perjury Charge?”

Last Resort Exoneration Project Using expert testimony of famed forensic pathologist Michael Baden, files innocence case, and is featured in the Star Ledger, Asbury Park Press, Courier Post and NJ Politicker

January 10, 2013

The Last Resort Exoneration Project, headed by Leslie ’03 and Professor Michael Risinger, has filed a petition in court seeking to prove the innocence of a man who has spent the last 17 plus years in jail for a murder he did not commit.

Famed forensic pathologist Michael Baden has offered expert testimony in the case for The Last Resort, disputing one of the central premises of the prosecution—that there were two shooters in the double homicide for which Kevin Baker, 41, was convicted.

The Star Ledger writes:

The Risingers said they and volunteers, including Seton Hall students, pored through case files, witness statements, and autopsy and ballistic reports and conducted their own interviews in the Centerville neighborhood of Camden where the murders occurred. They said they became convinced the killings were part of a spree of at least nine killings, most of them aimed at eliminating witnesses to other murders — a bloodbath that created pressure on local officials to find defendants quickly.

The Risingers contend:

“Mr. Baker was the victim of a perfect storm of misfeasance, malfeasance or nonfeasance by every part of the criminal justice system, including the investigating officers, the prosecutors, the defense lawyers, the witnesses, and to some extent, even the courts. There is responsibility enough for some to fall upon virtually everyone who touched this case from the beginning.”

Read the full Star Ledger feature, “Couple fight to prove man is victim of justice system, not a murderer.”

Read the Asbury Park Press article, “Guilty until proven innocent: Last Resort Project works to free wrongly incarcerated,”

and the Courier Post article, entitled “A shot in the dark at freedom?”

Read the NJ Politcker article, “New Jersey Law School Takes on Wrongful Convictions.”

Kate Greenwood In Fortune Magazine on Off-Label Marketing

January 02, 2013

Center for Health & Pharmaceutical Law & Policy Research Fellow & Lecturer in Law, Kate Greenwood, appeared in Fortune Magazine regarding the ban on off-label marketing and promotion of prescription drugs, addressing the issue in terms of efficacy. Fortune further cited to Ms. Greenwood’s recent article on the subject, “The Ban on 'Off-Label' Pharmaceutical Promotion: Constitutionally Permissible Prophylaxis Against False or Misleading Commercial Speech?” Fortune writes:

The ban on off-label marketing makes it easier for regulators to police drug makers' claims, since it forces companies to confine their marketing messages to the language on their products' labels. Lifting the ban would greatly increase the FDA's burden; regulators would have to scan a much wider berth of communications for demonstrably false and misleading claims. Kate Greenwood, a research fellow at Seton Hall's Center for Health and Pharmaceutical Law & Policy, is dubious that such an approach would work. "It's very difficult to police prescription drug promotion for false and misleading claims--companies have trouble policing their own sales representatives," she says.

In a recent paper, Greenwood wrote that the Federal Food, Drug & Cosmetic Act was amended in 1962 to prohibit off-label marketing because "post-market enforcement actions against misleading claims were almost always futile." They often took months or even years to implement. The FDA's Office of Prescription Drug Promotion staffs about 70 officials who are currently charged with reviewing more than 80,000 marketing items a year. It would be impossible for the FDA to monitor the majority of statements made by sales representatives. Many of those messages are conveyed behind closed doors, in conversations with doctors.

Read more in Fortune Magazine, “Big Pharma and unfiltered speech: A dangerous prescription.”

Seton Hall Law Tuition Reduction Initiative Featured in NJ BIZ

January 02, 2013

Seton Hall Law School’s Tuition Reduction Initiative was featured in NJ BIZ. The article notes that

In an effort to reduce the loan burden holding down top-tier potential law students' decisions to attend private schools over more affordable public ones, Seton Hall University has extended its merit-based tuition discount program to its law school for the 2013-14 academic year.

And that

Seton Hall Law School Dean Patrick E. Hobbs said in a statement the university extended its tuition reduction program to the law school because “the legal industry is undergoing substantial change, and for those who choose law, we have a duty to respond in a meaningful way — making legal education more practice-oriented and employment-focused, as well as more affordable.”

NJBIZ reached out to Seton Hall Law alumni to get their reaction to the program, interviewing Jeremy Farrell ’07, an Associate at McElroy, Deutsch, Mulvaney & Carpenter LLP, an NLJ 250 firm, and Sheri Pastor ’88, a Partner at McCarter & English, also an NLJ 250 firm.

NJBIZ reports:

“As the law school market is now facing a national problem with lower enrollment, a lot of schools have decided to reduce their standards to increase their numbers. But through this program, Seton Hall is maintaining its standards while also attracting more candidates," said Jeremy Farrell, an associate of the Morristown office of McElroy, Deutsch, Mulvaney & Carpenter LLP and a member of Seton Hall Law's alumni council. "It's a helpful tool to attract the best talents both in and out of New Jersey, and when those kids graduate, they're going to be well placed as the most competitive job candidates in the state.”

NJBIZ further notes that

…Sheri Pastor, leader of Newark-based McCarter & English's insurance coverage practice group, said Seton Hall Law offering reduced tuition reduction to only its highest-quality applicants is “a positive development not just for the law school, but for the students that graduate three years from now.”

“It can only work in the school's benefit to graduate students that have essentially higher GPAs and skill sets,” Pastor said. “It's a tough market for recent grads, because they're competing with people who have been practicing law and are out of jobs. But if Seton Hall's program works and is coupled with changes in the curriculum to provide more hands-on training, then I would expect it will give graduates a greater ability to attract job offers.”

Read the full article, “Seton Hall extends tuition discount to top-tier law students.”