US Senate Rule XXII: Filibuster

Stories like this one (registration required) in the Washington Post report on Democrats from Vice President Joe Biden to freshman Sen. Tom Udall (NM) calling for changes to the filibuster, a century-old parliamentary device used by the minority party to draw out debate and block the wishes of the majority party. In his column in today’s NY Times, Paul Krugman states:

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

What to do about the filibuster is a topic that has been around for a long time. The US Senate website has a brief history of Rule XXII on filibusters and cloture. Views about amending the rules governing its use change depending on whether the speaker is part of the majority party or part of the minority party. The Washington Post article contrasts Minority Leader Sen. Mitch McConnell, (KY) on his effort, five years ago when he was Majority Leader, to change nearly century-old filibuster rules with his oppostion to the move now. As a US Senator, Biden supported filibusters to block President Bush’s judicial nomination, most notably the nominations of Miguel Estrada, Caroline Kuhl and Priscilla Owen. Likewise, Mr. Krugman, in his March 29, 2005 column, warned of efforts by extremists to eliminate the filibuster to pack the courts with like-minded judges. Clearly, one’s opinion on the topic changes depending on whether one is in the majority or the minority.

The Brooklyn Law School Library has in its collection two worthwhile items for students interested in the history of the filibuster. Politics or Principle?: Filibustering in the United States Senate by Sarah A. Binder and Steven S. Smith (Call #JK1161 .B56 1997) has a Table on page 7 showing the Major Rule Changes Affecting the Senate Filubuster dating back to 1806. The book dispels much of the conventional wisdom about the filibuster and focuses on five major myths: that unlimited debate is a fundamental right differentiating the Senate from the House of Representatives; that the Senate's tradition as a deliberative body requires unlimited debate; that the filibuster was once reserved for a few issues of the utmost national importance; that few measures are actually killed by filibuster, and that senators resist changing the rules because of a principled commitment.

The more recent item is Filibuster: Obstruction and Lawmaking in the U.S. Senate by Gregory John Wawro and Eric Schickler (Call # JK1161 .W39 2006). The introduction to the book has a section titled “The Centrality of Obstruction to Senate Lawmaking” that says “Whatever the reason, the Filibuster is deeply ingrained in the political culture of the United States.” It goes on to say “Even though the filibuster is the most popularly known procedural maneuver in the Congress, it has received scant scholarly attention.” Its recitation of the history of the filibuster tells the reader that before 1917, there was no way to end a Senate filibuster. In that year, the Senate adopted its first “cloture rule,” which enabled a two-thirds majority to end debate.

PrawfsBlawg recently had an interesting post The legal debate over the Senate's rules: a dialogue that begins to discuss scholarly aspects of the US Senate as a continuing body, arguably the most powerful constitutional consideration in favor of the permissibility of entrenched Senate rules. There is a link to an SSRN paper Burying the 'Continuing Body' Theory of the Senate by Aaron-Andrew P. Bruhl of the University of Houston Law Center.

DNA Testing and Wrongful Convictions

This week, the Innocence Project released 250 Exonerated: Too Many Wrongfully Convicted detailing 250 exoneration cases along with statistics on common causes of the wrongful convictions. The release of the report coincided with the exoneration of Freddie Peacock, a 60 year old man from Rochester, New York wrongfully convicted of rape 33 years ago. The exoneration was the result of DNA testing in what the Innocence Project said is the 250th DNA exoneration in the United States. Convicted in 1976 of rape, Peacock was sentenced to 20 years in prison and released on parole in 1982. Even though no longer incarcerated, he fought to prove his innocence since he left prison 28 years ago.

Some interesting findings in the report include:

• DNA exonerations in 33 states and the District of Columbia
• States with most DNA exoneration: New York (25), Texas (40) and Illinois (29)
• 76% of wrongful convictions involved eyewitness misidentification
• 50% involved either improper forensic science or forensic science without validation
• 27% relied on a false confession, admission or guilty plea
• 70% of the 250 people exonerated are people of color; Black (60%), Latino (9%), White (29%)

The Brooklyn Law School Library has additional reading on the subject of wrongful convictions in New York. See Lessons Not Learned: New York State Leads in the Number of Wrongful Convictions but Lags in Policy Reforms that Can Prevent Them, An Innocence Project Report (Call # KFN6102 .L37 2007 (INTERNET).

New from Bloomberg Law

Bloomberg Law is sponsoring a training session Bloomberg Law on Securities: Advanced Research Session on how to use Bloomberg Law for securities research on Wednesday, February 3, 2010 (8:45am - 10am). The session takes place at its headquarters at 731 Lexington Ave., New York. Interested Brooklyn Law School students should RSVP by calling Adi Hermoni at (212) 617-4132 or to ahermoni@bloomberg.net. Bloomberg will provide breakfast for all attendees.

Another new feature on Bloomberg Law is the newly released Bloomberg Law Reports Student Edition, Volume 1, Number 1 of which contains items targeted for law students:

•Law School Fundamentals
• Public Interest Law
Clinics (The Securities Arbitration Clinic at St. John’s University School of Law, Advocates for Victims of Investment Fraud)
• Career Profile
A Day in the Life of a Legal Aid Attorney
• Law Firm Profile
Developing Advocates, Addressing Need, and Making the System Work
• Legal Research
Bloomberg Points of Law — Building a Legal Precedent Database
• Career Development
Training (Howrey’s First Tier Program Combines Theory and Practice for New Lawyers)
• Interviews
What to Do — What Not to Do
Lasting Impressions
• Bloomberg Law Podcasts
December 2009/January 2010
• Bloomberg Law
Bloomberg Continuing Legal Education

Global Gender Gap Report

For those who enjoy lists, BeSpacific links to a World Economic Forum press release about the Global Gender Gap Report for 2009 which measures the size of the gender inequality gap in four critical areas:

• Economic participation and opportunity – outcomes on salaries, participation levels and access to high-skilled employment
• Educational attainment – outcomes on access to basic and higher level education
• Political empowerment – outcomes on representation in decision-making structures
• Health and survival – outcomes on life expectancy and sex ratio

The report shows that no country in the world has achieved gender equality and that Scandinavian countries top the annual list. With other countries making progress, the United States lost four places in the rankings this year coming in at number 31. In the US, labor force participation of women fell from 70% to 69% and the percentage of women among professional and technical workers fell from 57% to 56%. Countries which scored higher than the US on the 2009 Global Gender Gap Index in total and in order of best to worst are Iceland, Finland, Norway, Sweden, New Zealand, South Africa, Denmark, Ireland, Philippines, Lesotho, Netherlands, Germany, Switzerland, Latvia, United Kingdom, Sri Lanka, Spain, France, Trinidad and Tobago, Australia, Barbados, Mongolia, Ecuador, Argentina, Canada, Mozambique, Costa Rica, Bahamas, Cuba and Lithuania. The 20 worst countries in the ranking reading down from 115 to 134 are: South Korea, Bahrain, Algeria, Cameroon, Mauritania, Burkina Faso, Syria, Ethiopia, Oman, Morocco, Qatar, Egypt, Mali, Iran, Turkey, Saudi Arabia, Benin, Pakistan, Chad and Yemen.

Another take on the gender gap comes in a new paper called The State of American Boyhood published by Judith Kleinfeld in the journal Gender Issues which is available to Brooklyn Law School members through the Library database EBSCO Academic Search Premier. The paper says that stereotypes and lack of information hold back high school boys from going to college. After interviewing high school seniors in Alaska, the author found that some high school boys were unaware of the likely need for a college degree and that many believed that boys are just lazy or prone to peer pressure. In her article, Kleinfeld suggests that stereotypes may be limiting boys' ambition. Kleinfeld, from the University of Alaska at Fairbanks, has clashed with women's groups by questioning research showing discrimination against female students and faculty members and hopes her current work will offer more insight on the reasons why boys are struggling. Her newest study focuses on pressures on men in American society and changing concepts of manhood and challenges us to recognize that there is neither a "girl crisis" nor a "boy crisis" when it comes to education and that we need to pay attention to the difficulties of both girls and boys and bring these problems to the attention of families, teachers and mental health professionals.

New York and Partial DNA Use

A NY Times article, New Rule Allows Use of Partial DNA Matches, reports that this spring New York authorities will implement partial DNA matching to identify potential suspects. The practice, approved in December, could allow law enforcement officers to pursue suspects if the DNA evidence closely resembles someone's genetic code. If DNA evidence is found at a crime scene and is a close match to another person's in the DNA database, authorities can use the partial match to see if the person who committed the crime is a relative of the close genetic match. The Gothamist states: "Under the old rules, police could only pursue a suspect using DNA found at a crime if the recovered DNA is an exact match with one of the 343,000 genetic profiles contained in a state database of convicts." Law enforcement officers view this as a 21st Century weapon in fighting crime and see partial the DNA match as an effective tool because family members share genetic traits that would appear when the DNA is analyzed. The NYS DNA Databank became operational in 1999 and, according to the Division of Criminal Justice Services website (last updated 1/12/2009), is extensive:

The Times article discusses the reasons for and against this new policy. Proponents view partial DNA matching as giving officers one more piece of evidence to help them with unsolved crimes. The New York deputy secretary for public safety and the chairwoman of the Commission on Forensic Science, Denise E. O'Donnell said, "You could have a horrific crime - a serial rapist or killer - and you could have a clue in a lab that could identify the killer or rapist that we're currently not allowed to use". Opponents believe that the practice violates a person's right to privacy and that the practice is overbroad and can lead to innocent people being treated as suspects.

The use of DNA profiles has led to the practice of issuing so-called John Doe warrants or no-name warrants getting around statute-of-limitation issues. See the FindLaw article DNA and Cold Cases: Indicting John Doe. This week, the California Supreme Court upheld the rape conviction of Paul Robinson, who was arrested one month after the expiration of the six-year statute of limitations. The justices, in a 5-2 decision, said an arrest warrant without Robinson's name but with his DNA profile issued before the expiration is valid.

Women in the Law

According to ABA statistics, half of all law school graduates are women and have been since 1992. Yet it seems that, in the legal profession, women, as a group, have a “problem.” The traditional power dynamic where men teach and women learn, and men are superior and women subordinate, still survives and women do not have equality in terms of the gender break-down of judges, partners and senior attorneys. A Law.com article N.Y. State Bar Revises All-Male Panel on Women in Law reports that, faced with a call for a boycott of a discussion at its annual meeting, the New York State Bar Association revised its plans to have a panel of "distinguished gentlemen" expound on the "strengths and weaknesses" of women in the legal profession. The Committee on Women in the Law planned to sponsor a day-long program for female lawyers, beginning with a panel titled “What’s Our Problem: Current Issues Facing Women,” with a group of female attorneys discussing practicing law in a changing legal market. Immediately afterward was to be another panel “Their Point of View: Tips From the Other Side,” in which a “distinguished panel of gentlemen” were to opine on the strengths and weaknesses of women’s legal work.

After a threatened boycott from female attorneys, the Bar Association scrapped the all-male feature. Among the women lawyers expressing their disapproval was Brooklyn Law School Professor of Law Anita Bernstein who objected to the description of the panel and its all-male composition saying "The notion of men evaluating women to ask whether they are good enough is just too familiar for women lawyers. I don't think they intended to make women 'the other' and ask whether they were good enough, but that was the reading that one could make of it." The well-intentioned panel, with members who would have likely offered great advice on how to succeed, showed a lack of awareness that having a group of men tell an audience of women how to succeed reinforces the idea that lawyering is a man’s job and that it reinforces the falsehood that female attorneys are somehow not as good as their male counterparts.

New Interfaces for Legal Research

The ABA Journal's story titled Exclusive: Inside the New Westlaw, Lexis & Bloomberg Platforms discusses the new research interfaces for Westlaw and LexisNexis The New Lexis platform is expected some time later this year. WestlawNext – the public name for Cobalt – is due February 1. Some of the New Lexis’ features cited in the article include:

• no more Boolean search; natural language only with an algorithm boosted by artificial intelligence to help get the most relevant information;
• results broadened beyond Lexis’ own proprietary databases to include relevant open source legal information from across the Web;
• results page is dramatically revamped, to include folders along the margins containing categories of relevant results, such as cases, statutes, and regulations;
• pop-up preview panes containing summaries when you hover over a result and integrated Shepherd’s results for each case;
• graphical presentation of Shepherd’s results and the history and timeline of cases;
• collaboration tools and the ability to store results in folders for later use;
• productivity tools to assist in evaluating the strength of a case, the costs, and potential value to lawyer and client.

WestlawNext will have similar features, using a simple search box for a natural language query that does not require identifying a desired database up front. West has not decided yet to drop Boolean searching Searches can filter results by jurisdiction, type of content and other factors The service will allow bookmarking of favorite databases. KeyCite will also be incorporated directly into the results. There will be similar collaboration features, such as saving work in folders by client. Researchers can use these folders to review their own search history. West also will incorporate some editing features, such as highlighting and noting on cases.

Bloomberg Law is in the process of being tested in a small number of law firms and schools, including Brooklyn Law School. While there are noted limitations in the beta version with respect to the scope of accessible materials, testers are giving the product high marks for intuitiveness and ease of use. Plus, a docket search feature distinguishes Bloomberg from Westlaw and LexisNexis.

The Big Three legal research databases are blending their vast information resources with slick, modern interfaces and productivity tools. These databases will however face strong competition now that free Google offers a viable option especially as legal professionals look to minimize costs.