Pretrial Motion Practice and Employment Discrimination

New York Law School Law Review has a new symposium issue, Volume 57, Issue 4, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination. The issue is based on a symposium held at New York Law School in April 2012 which examined evidence that civil rights cases, especially those alleging employment discrimination, are susceptible to dismissal before trial as well as to unfavorable judgment notwithstanding the verdict after trial.

Among the many contributors who include practitioners, judges, and academics is Brooklyn Law School Professor Elizabeth M. Schneider who with Harvard Law Professor Nancy Gertner co-wrote the article “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev. 767 (2012-2013), which focuses on the “substantive law dimensions” of the procedural decisions that federal courts make in employment discrimination cases. Professors Scheider and Gertner take the Supreme Court decision Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011), which limited the availability of class actions as the starting point for their argument.

The other articles published in the issue give an in-depth look at pretrial motion practice in employment discrimination cases both from the point of view of practitioners and academics, offering practical suggestions for attorneys for plaintiffs and guidance for judges in ruling on pretrial motions.

Taxing Internet Sales

The Senate, by a vote of 69-27, passed S. 336, the Marketplace Fairness Act of 2013, a bill designed to restore States’ sovereign rights to enforce State and local sales and use tax laws. The legislation seeks to reverse the decision of Quill Corp. v. North Dakota, 504 US 298  (1992) in which the Supreme Court ruled that States cannot require a retailer to collect sales taxes on its behalf, unless that retailer has a physical presence in the taxing state.  The Marketplace Fairness Act eliminates the Quill standard and would allow States that meet certain minimal standards to require retailers in all States to collect taxes for them.

The bill's aim to enforce a sales tax on businesses that rely on the Internet to reach their customers has three problems: 1) Online businesses would be responsible for collecting and filing their sales tax from customers that do not reside in their state; 2) Businesses would need to use software to keep track of their tax paying customers putting their customers at risk by exposing sensitive information records; and 3) Requiring that sales tax be collected at the state from which the goods are shipped would be much simpler and would encourage states to be less reliant on highly regressive sales taxes.

The BLS Library has in its internet collection a report from the Congressional Research Service “Amazon Laws” and Taxation of Internet Sales: Constitutional Analysis which examines efforts by States to tax internet sales. According to the report, New York was one of the first to do so. On March 28, 2013, the New York Court of Appeals found New York’s Amazon tax constitutional in Amazon.com, LLC v. New York State Department of Taxation and Finance. That decision is important because, since New York enacted Tax Law §1101(b)(8)(vi) in 2008, eight other states have passed similar laws.

Brooklyn Law School Professor Brad Borden took part in a podcast with the Voice of Russia about the legislation that require retailers with more than $1 million a year in online sales to send taxes to states where their products are delivered. Large retailers and smaller stores support the bill, but online retailers such as eBay oppose it. According to Borden: “With Internet sales rising, constituents and business owners in various states are putting pressure on lawmakers to help even the playing field.”

CALI Lessons for Final Exams

Brooklyn Law School students can better prepare for final by using CALI lessons. BLA students registering for the first time can contact a reference librarian for the school's authorization code to create a new account.

Lessons written by law faculty/librarians include those for first year courses and many upper-level subjects. There are three podcasts on exam taking skills titled Exam Taking Skills, Outlines, and Advice for Law Students. Six law professors on three different panels discuss outlines, studying for class, preparing for exams, time management, and how professors grade exams. The conversations were recorded as podcasts. The podcasts are not intended to take the place of a conversation with your professor, but they offer law students additional insight into the exam process. See the podcasts for Panel 1, Panel 2, and Panel 3. Another CALI lesson, Writing Better Law School Exams: The Importance of Structure, is designed to improve student exam-writing techniques. Legal writing including writing exams as students employs a special form of writing. The lesson discusses that form and its structural implications discussing the tasks to perform and the tools to use in performing those tasks, and how to sharpen those tools. The lesson concludes with interactive opportunities to try the techniques described.

Law Day 2013

The first Law Day, May 1, 1958, came about by Proclamation 3221 which President Dwight D. Eisenhower signed on February 3, 1958. The Proclamation read "The people of this nation should remember with pride and vigilantly guard the great heritage of liberty, justice, and equality under the law that our forefathers bequeathed us." A few years later, in 1961, Congress passed Pub. L. 87-20, 75 Stat. 43 establishing Law Day “for the cultivation of the respect for law that is so vital to the democratic way of life.”

The first of May was purposely chosen to contrast with May Day, a holiday which socialist nations celebrate on May 1 as International Workers Day in commemoration of the 1886 Haymarket riots in Chicago. The Brooklyn Law School Library has The Chicago Haymarket Conspiracy, and the Detection and Trial of the Conspirators through its subscription to HeinOnline.

This year, the American Bar Association has designated the theme for Law Day 2013 as “Realizing the Dream: Equality for All.” The ABA website lists themes for past Law Days. See the New York State Bar Assocation website for more on Law Day 2013.

April: National Poetry Monrth

National Poetry Month has been around since 1996 when the Academy of American Poets designated April as the month for schools, publishers, libraries, booksellers, and poets to celebrate poetry and its place in American culture. This April, the Academy of American Poets is celebrating the role that correspondence has played in poets' lives, as well as in their poems. Brooklyn Law School has just such an item in its collection with Calamus:  A Series of Letters Written during the Years 1868-1880 by Walt Whitman to a Young Friend, Peter Doyle (Call # LC1059 .A73). One quotation from that book is “I delivered my poem here before the College yesterday. . .  I am to go to Vermont for a couple of days, and then back to Brooklyn. . .  I will send you the little book with my poem, (and others) when I get back to Brooklyn.”

For law-related poetry, take a look at Supreme Court Haiku by Houston attorney Keith Jaasma who creates haiku poems featuring the decisions of the US Supreme Court. Seed for example the haiku for Moncrieffe v. Holder in which the Court ruled that a non-citizen cannot be automatically deported for the kindhearted but illegal act of bringing a few joints to a party. The haiku reads:

Immigrant’s drug crime

“Aggravated felony”?

No, just a few joints

The three line poems that Japanese poets write, usually about nature, are very witty. There are also haiku about the Constitution and various justices. The FAQ movie on the site is worth watching.

Episode 086: Conversation with Adam Horowitz

Episode 086:  Conversation with Adam Horowitz, Class of 2013.mp3

This podcast episode of the BLS Library Blog features an edited conversation with Brooklyn Law School student Adam Horowitz, Class of 2013. In the Fall 2012 issue of the Brooklyn Law Review, Adam’s note, Giving Battered Immigrant Fiancées a Way Out of Abusive Relationships:  Proposed Amendments to the Immigration and Nationality Act, appeared at 78 Brook. L. Rev. 123. After publication of the note, Adam received a 2013 Distinguished Legal Writing Award from the Burton Awards which honors effective legal writing. In the conversation, Adam shares the research process that led to his writing the note along with his thoughts about his experiences both as a Sparer Fellow and as a member and one of the Associate Managing Editors of the Brooklyn Law Review.

Reforming Rules for Taxis and Limousines

In Black Car Assistance Corp. v. City of New York, Justice Carol E. Huff of the Civil Branch of the Supreme Court, New York County, ruled Tuesday dismissing a lawsuit by livery cab owners against the Taxi and Limousine Commission's (TLC) pilot program enabling riders with smartphones to summon yellow cabs for pick-up. Fares could also be paid electronically through the app. The program was adopted by the TLC in December 2012.

Livery-cab companies and black-car owners argued that the program would cut into their business of pre-arranged rides with customers. They also argued that the program could be discriminatory against elderly riders because they tend to lack smartphones. But New York State Supreme Court Justice Huff found the plaintiffs' arguments without merit writing "Any experiment to determine whether an e-hail program will work in New York City would require extensive participation to determine, for example, effects on street-hail availability and whether there would be sufficient numbers of participating taxi drivers to meet demand."

This decision is a victory for all the riders who want to decide for themselves what technologies and services they want to use," said TLC Commissioner and former Brooklyn Law School faculty member David Yassky. "The market will ultimately decide which apps rise or fall and we have an obligation to give the riding public that choice. Thanks to today's ruling, they have that choice."

The ruling removes a big hurdle for the TLC and the Bloomberg administration whose proposals to reform the taxi industry have faced obstacles in the courts. In June 2012, Judge Arthur F. Engoron of the Civil Court of the City of New York, New York County issued a temporary restraining order in Taxicab Service Association v. The State Of New York to block their proposed outer-borough street hail plan which would have allowed 18,000 livery cabs to take street hails in the outer boroughs and upper Manhattan. Two months later, Judge Engoron issued an opinion invalidating the state law that permitted the street hail plan on the grounds that its passage required "home rule" approval by the New York City Council aksing the Legislature to act on an issue concerning New York City. The case is now pending before the New York Court of Appeals. The TLC website states that the city currently has 3,237 yellow medallion cabs. A NY Times article reported that the cost of medallions hit a record high in 2011 when two were sold for $1,050,000 each.