Tuesday, December 23, 2008

Santa Claus, You Better Watch Out

The King County Law Library in Seattle, WA started producing podcasts about the same time that the BLS Library Blog and Podcast began, the fall of 2007. KCLL’s Sidebar posts monthly podcasts of 20 minutes covering topics from legal news, research tips, interviews, music and other fun stuff.

As BLS closes for the winter break and prepares for the arrival of Santa Claus, this is a good time to listen to the 25th Podcast episode of KCLL’s Sidebar entitled: Up on the Housetop: The Risks for Santa where we find out about the potential liabilities and risks that Santa might encounter during his annual trip. Happy Holidays! Listen here: KCLL’s SideBar: Episode 25: Up on the Housetop: The Risks for Santa.mp3

Monday, December 22, 2008

Msg: Txtng & Drvng Agnst Law

In 2008, text messaging has become the preferred method of communication for millions of Americans of all ages. Text-messaging, also known as SMS (for short message service), started in Japan, because the cost of texting there was less than that of making cell phone calls. This year, President-elect Obama used the medium to announce his running mate and American Idol fans used texting to vote for their favorite contestants. Generation X has become Generation Text as students use text messages to save time in a wide range of communication from simple chatting to sharing legal citations for scholarly writing. Jennifer Alvey from Word Solutions wrote an interesting post about how text messaging can help lawyers and law students improve their writing skills.

The past year has seen new state laws regulating texting while driving (TWD). Nine states have new laws going into effect that relate specifically to cell phone use and text messaging by the driver of a vehicle. Most new laws are secondary enforcement laws that will not be enforced unless the driver is violating a primary law such as speeding, reckless driving or running a red light. The laws provide exceptions for emergencies, reporting illegal activity and use by public safety officials.

As states like Alaska, California, Illinois, Louisiana, Minnesota, Nebraska, New Jersey (whose 2008 amendment makes TWD a primary offense), Oregon, Washington have passed or strengthened laws on TWD, similar legislation in the New York legislature has languished. In May 2008, the NY State Senate passed a bill (S3195-C) introduced by Sen. Carl Marcellino (R, Syosset) to amend the Vehicle and Traffic Law to ban cell phone use while driving prohibiting drivers from writing, sending or reading text messages on a mobile telephone or any other mobile device. A companion bill (A7299-B) introduced by Assemblyman Felix Ortiz, (D, Brooklyn) awaits action in the Assembly. The New York legislation was given more attention last July, after five high school graduates died in an upstate crash. Police said text messages had been sent and received on the 17-year-old driver's cell phone moments before her SUV rammed a truck.

While legislation awaits passage at the state level, local governments have addressed the issue of TWD. Westchester County, just north of New York City, has just enacted Local Law 12 2008 prohibiting text messaging while driving, making it illegal to compose, read or send text messages while driving any type of motor vehicle, including automobiles, trucks, vans, and construction vehicles. The law goes into effect on March 10, 2009. Schenectady County also enacted a TWD ban last week when its county Legislature approved a local law making it a violation to send text via a cell phone while driving. The violation comes with a $150 fine if convicted and becomes effective on March 1, 2009. Monroe County and Suffolk County have already passed similar bans.

Most bans on TWD have minor fines and are aimed only at younger drivers. Whether these limitations will effect behavior is an open question. It is more likely that violations that carry points and insurance surcharges will alter driver behavior. New technology that limit cell phone use while driving, like the Key2SafeDriving wireless car key device, is a more effective way to stop motorists from talking on their cell phone or sending text messages while driving. Thanks to BeSpacfic for this press release on the device.

Here's a scripted video demonstrating how the device works:

Friday, December 19, 2008

AALS Private Screening on Human Trafficking

LexisNexis has announced that it will host an exclusive private screening of the film Holly at the January American Association of Law Schools (AALS) Annual Meeting in San Diego. By showing the film, Lexis Nexis hopes to raise awareness about human trafficking and to show its support of efforts to combat and raise awareness of this global problem.

LexisNexis' promotion of the private screening of Holly estimates that one million people, mostly women and children, are trafficked around the world each year. The gross and unjust economic exploitation of vulnerable people is a direct result of absence of Rule of Law - an accessible, independent and transparent legal system, along with a set of laws that everyone, including the government, follows - in the countries where this traffic thrives.

Article Three of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons defines trafficking as the "recruitment, transportation, harboring or receipt of persons by threatening, force, or coercion, abduction, fraud, deception, the abuse of power or of a position of vulnerability or of the receiving and giving of paymen to a person having control over another person, for the purpose of exploitation". The International Organization for Migration says as many as 800,000 people may be trafficked across international borders annually, with many more trafficked within the borders of their own countries.

A 2005 report called "Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report" issued by the US State Department , estimates that of the 600,000 to 800,000 men, women and children trafficked across international borders each year, about 80% are women and girls. Most traffickers are people with close ties to their victims who use the promise of employment, marriage, and a better life to lure the victims into a life of slavery. Weak legislation and the absence of effective deterrent penalties against this crime contibute to the growth of the problem.

Here is the trailer for Holly which is due to be released in April 2009.

For reading material in the BLS Library collection, see SARA, the library catalog, for a recent acquisition: Trafficking in Humans: Social, Cultural and Political Dimnsions edited by Sally Cameron and Edward Newman (Call # HQ281 .T717 2008).

Wednesday, December 17, 2008

N.Y. Adopts New Attorney Conduct Rules

A NY Law Journal article and a Law.com article report today that Chief Judge Judith S. Kaye and the four presiding Appellate Division justices have formally adopted a new set of attorney ethics rules. Proponents of adoption of the Rules of Professional Conduct (full text) say that the change will subject New York lawyers to the same standards governing lawyers in the rest of the country. The new Rules, based on the ABA Model Rules, replace the existing Disciplinary Rules and introduce important ethics changes for New York lawyers.

The change will make it easier for New York attorneys to reference ethics rules and advisory and legal opinions nationwide when researching issues, supporters of the new rules say. The standardized format, used in 47 other states, is organized according to a lawyer’s role as litigator, counselor, negotiator, and will facilitate a lawyer’s ability to assess specific ethical issues in context. The Rules have generated a national body of ethics law that will ease ethical research and guidance by New York lawyers as well as out-of-state lawyers seeking to research and follow New York’s rules. The effective date of the Rules of Professional Conduct is April 1, 2009 when they replace the New York Code of Professional Responsibility.

The BLS Library has on reserve at the circ desk the Sixth Edition of the Annotated Model Rules of Professional Conduct (Call # KF306 .A7484 2007) as well as the current edition of Legal Ehics: the Lawyer's Deskbook on Professional Responsibility (Call # KF306 .R68).

Monday, December 15, 2008

Bill of Rights Ratified 217 Years Ago

On December 15, 1791, the legislatures of three-fourths of the states of the newly formed United States ratified what is now known as the Bill of Rights. When first proposed, the Bill of Rights contained 12 amendments. The first two of them, dealing with proportional representation in Congress and compensation of its members, were not ratified. The Bill of Rights as ratified protected the fundamental rights of the citizens of the new country. The First Amendment guaranteed freedom of religion, speech, and the press, and the rights of peaceful assembly and petition. Other amendments guaranteed the rights of the people to form a "well-regulated militia," to keep and bear arms, the rights to private property, fair treatment for accused criminals, protection from unreasonable search and seizure, freedom from self-incrimination, a speedy and impartial jury trial, and representation by counsel.

The first official Bill of Rights Day was December 15, 1941 declared by President Franklin D. Roosevelt in Proclamation 2524 to commemorate the 150th anniversary of the ratification of the Bill of Rights. Most Americans largely ignore the historical significance of the anniversary of the Bill of Rights and many American politicians neglect the spirit of the Bill of Rights on a day-to-day basis. Consider the Patriot Act and other laws passed to wage the War on Terror. Think about wiretap abuses and expanded search and seizure by the police in the War on Drugs, the broad use of eminent domain, the government’s ability to exercise civil asset forfeiture, the limitations on jury trials in criminal cases and other recent developments. These kinds of expansive governmental actions are arguably what the drafters of the Bill of Rights intended to curb. Bill of Rights Day is an opportunity to reverse the increasing intrusion on the individual rights of American citizens.

For additional reading in the BLS library on the history of the Bill of Rights, see SARA the library catalog for James Madison and the Struggle for the Bill of Rights by Richard Labunski (Call # KF4749 .L23 2006) with chapters including: Madison introduces the Bill of Rights -- Congress proposes the Bill of Rights -- Ratification of the Bill of Rights.

The BLS Library also has in its collection The War on the Bill of Rights and the Gathering Resistance by Nat Hentoff (Call # JC599.U5 H46 2003) with chapters that include: Why Should We Care? It’s Only the Constitution (USA PATRIOT Act, John Ashcroft, Operation TIPS); How We Began to Lose Our Liberties; A Society Under Surveillance; The FBI Eyeing What You Read (USA PATRIOT Act, gag order, George Orwell).

Friday, December 12, 2008

BLS Moot Court Team Coach Wins Award

The BLS Moot Court team has achieved national prominence over the years by winning numerous awards in moot court competitions throughout the country. The members of the Moot Court team have had the assistance of some prominent local attorneys. Among them is Charles M. Guria, chief of the Kings County District Attorney’s Office’s Civil Rights and Police Integrity Unit.

This past week, Guria received the fourth annual Thomas E. Dewey Award at the headquarters of the New York City Bar Association in Manhattan. Every year the NYCBA presents the awards to outstanding assistant district attorney in each of the city’s District Attorney’s offices and Guria won the award for his work in Kings County. Guria has worked at the Kings County D.A.’s Office for over 17 years and spent most of his time investigating and prosecuting cases involving hate crimes and corruption within the police departments and city government. As chief of Civil Rights and Police Integrity Unit, he prosecutes cases of immigration fraud, bias crimes and police misconduct, most notably the recent indictment of three police officers in the subway platform sexual assault case stemming from October.

Brooklyn District Attorney and BLS Adjunct Professor of Law Charles Hynes said in a press release “Charles Guria’s excellent work and dedication to public service make him an ideal recipient for this award. I have been honored to work with him and am pleased to see that the rest of the legal community also recognizes his abilities.”

Wednesday, December 10, 2008

60th Anniversary of Genocide Convention

This December marks the 60th anniversary of the Convention to Prevent and Punish the Crime of Genocide. On December 9, 1948, the General Assembly of the UN at New York approved a resolution adopting the treaty. It is one of the most important documents in the creation of an international criminal jurisdiction by the UN immediately after WWII. On December 11, 1948, President Harry Truman signed the document on behalf of the US and sent it with a letter to the US Senate for ratification. Although a sufficient number of UN member states ratified the treaty on January 12, 1951, it was nearly 40 years later when it went into effect for the US.

The 100th Congress passed the Genocide Convention Implementation Act of 1987 (also known as the Proxmire Act), Public Law No. 100-60, codified at 18 USC 1091. That section defines genocide:

(a) Basic Offense. - Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such -

  1. kills members of that group;
  2. causes serious bodily injury to members of that group;
  3. causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
  4. subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
  5. imposes measures intended to prevent births within the group; or
  6. transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection (b)

(c) Incitement offense. - Whoever... directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.

The 108th Congress reaffirmed its support of the Convention in House Report 108-130 explaining why the 1987 law was known as the Proxmire Act.

The Convention was submitted to the Senate for advice and consent to ratification in 1949. For many years, no action was taken on ratification in part because of unfounded fears that adherence to the treaty would undermine U.S. sovereignty. Senator William Proxmire was the leading proponent of ratification of the Convention. In reaction to the lack of movement by the Senate to give its advice and consent, Senator Proxmire vowed to speak every day on the need to ratify the Convention until the Senate took action. He made over 3,000 statements on the Senate floor urging ratification of the Convention. His commitment was so crucial to the ratification effort that the law is known as the “Proxmire Act”.
Consult SARA, the BLS Library catalog for further reading on the Genocide Convention where you will find The Genocide Convention: An International Law Analysis by John Quigley (Call # K5302 .Q85 2006).

Monday, December 8, 2008

PRO-IP Act and the Copyright Czar

A Nation Law Journal article reports on the PRO-IP Act ("Prioritizing Resources and Organization Intellectual Property Act") which became law in October. This new legislation, codified at 15 U.S.C 8101 et seq., is a substantial change in current copyright law and strengthens prosecution for the theft of intellectual property in the US with new civil and criminal enforcement measures and reforms by:

· increasing the statutory damages for the sale of counterfeit goods to a inimum of $1000 per trademark to a maximum of $200,000 per trademark;
· increasing the ceiling on statutory damages for the willful sale of counterfeit goods to $2 million;
· expanding the availability of treble damages for providing the equipment or services necessary to commit a counterfeiting violation where the provider intends them to be used for such purposes;
· creating the position of a “IP Czar” or Intellectual Property Enforcement Coordinator (IPEC) within the White House to chair an committee overseeing anti-counterfeiting efforts; and
· making money available for criminal enforcement of intellectual property laws by the FBI, the DOJ and local law-enforcement

The sense of the Congress in passing the law in Section 602 of the PRO-IP Act was that “counterfeiting and infringement results in billions of dollars in lost revenue for United States companies each year and even greater losses to the United States economy in terms of reduced job growth, exports, and competitiveness”. The facts supporting this assertion are not clear as the only factual legislative history of this law is House Report 110-617 citing statistics provided by proponents of increased copyright protection like the US Chamber of Commerce, the Coalition Against Counterfeiting and Piracy (CACP) and the Recording Industry Association of America (RIAA).

Opponents of the PRO-IP Act like the Electronic Frontier Foundation (EFF) question those statistics and argue that while prosecuting commercial pirates is a good idea, copyright law should distinguish between commercial counterfeiters and private users – like those caught up in the RIAA's anti-downloading litigation dragnet, urging lesser penalties for noncommercial, personal copying for the latter.

Speculation on whom President-Elect Obama will nominate as IP Czar and how the new Administration will act on these reforms is the subject of reports in a Reuters and the National Journal.

Thursday, December 4, 2008

Prohibition Repeal

December 5th is the 75th anniversary of the ratification of the Twenty-First Amendment when the State of Utah became the final state needed to ratify the amendment and President Franklin D. Roosevelt announced the Repeal of Prohibition by Presidential Proclamation 2065 in 1933.

In our time, the growing realization is that our new Prohibition, the war on drugs, is not working any better than the old Prohibition. A Los Angeles Times article from last week cites a report by the Brookings Institution that the war on drugs has failed. The LA Times article includes comments from an interview with former Mexican President Ernesto Zedillo who supervised the Brookings report and says that the US war on drugs has failed and will continue to do so as long as it emphasizes law enforcement and neglects the problem of consumption. The report urges the US to expand drug prevention programs in schools and redirect anti-drug messages to young people by emphasizing health risks and further to enhance drug courts that will incorporate treatment into prosecution.

Commemorating the 75th anniversary of the repeal of alcohol prohibition with an event at the National Press Club, a group of former police officers, judges, and prosecutors known as Law Enforcement Against Prohibition (LEAP) issued a press release urging support of repeal of the new Prohibition. The press release has links to WeCanDoItAgain and its report Repealing Today’s Failed Prohibition.

Here is a video featuring members of LEAP:

The BLS Library has several items in its collection dealing with the topic of drug legalization including Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole by Thomas C. Rowe (Call # KF3890 .R69 2006).

Federal Drug Control: the Evolution of Policy and Practice, Jonathon Erlen, Joseph F. Spillane, editors (Call # KF3885 .F43 2004).

Monday, December 1, 2008

World AIDS Day 2008

Today, the Department of Health and Human Services Office of HIV/AIDS Policy's AIDS.gov is recognizing the 20th annual World AIDS Day. The focus is on reducing HIV/AIDS-related stigma and promoting HIV testing through blogs, virtual worlds, and social networks. This World AIDS Day also marks the second anniversary of AIDS.gov which provides access to Federal HIV/AIDS information through a variety of new media channels, and supports the use of new media tools by Federal and community partners to improve domestic HIV programs serving minority and other communities most at-risk for, or living with, HIV.

AIDS.gov: Access to U.S. Government HIV / AIDS information

Visit AIDS.gov: Access to U.S. Government HIV/AIDS information.

The site suggests four ways to take action to reduce the stigma around HIV/AIDS by using blogs, podcasts and RSS feeds Facebook, Flickr, mashups and other social networking tools to remind people that HIV/AIDS is still a critical issue in the U.S. and around the world, and to promote HIV testing.

Take a picture of yourself wearing a red ribbon

Add the photo to your social network profiles on Dec 1

Add your photo to the “World AIDS Day 08” Flickr group

Encourage your friends to do the same and to promote HIV testing

The site also notes that Second Life World AIDS Day is celebrating World AIDS Day with the opening a new island named Karuna that will be open to the public today.

The BLS Library has several related items for further reading including AIDS and the Law, David W. Webber, editor (Call # KF3803.A54 A915 2007);

Victimizing Vulnerable Groups: Images of Unique High-risk Crime Targets, Charisse Tia Maria Coston editor (Call # HV6250.25 .V535 2004); and

AIDS and the Sexuality of Law: Ironic Jurisprudence by Joe Rollins (Call # KF3803.A54 R65 2004).

Sunday, November 30, 2008

Brooklyn House of Detention Expansion Halted by Lawsuit

A New York Daily News article reports that in response to a lawsuit filed in the Kings County Supreme Court, the city has agreed not to move any more prisoners into the Brooklyn Detention Center. Attorneys for a coalition of citizen groups and local politicians, known as “Stop BHOD” (Brooklyn House of Detention, as the jail is also known), brokered the agreement with the city’s counsel to halt expansion of the jail or the transfer of new prisoners while the suit is pending. The group has an online petition to stop the re-opening and expansion of the jail.

Among the plaintiffs in Stop BHOD v. City of New York are Brooklyn Councilman David Yassky and City Comptroller William C. Thompson. The suit was filed after the Department of Correction transferred a work detail of 30 prisoners into the jail, located on Atlantic Avenue between Smith Street and Boerum Place. Comptroller Thompson issued a press release and a letter to Mayor Bloomberg urging the city to reverse the decision to re-open the Brooklyn House of Detention and to redirect the nearly half a billion dollars to the construction of desperately-needed school facilities.

The DOC decision to budget $440 million for renovations and expansion would double the jail’s capacity. Its transfer of prisoners was the first time since 2003 that they have been housed there overnight. Citizen and neighborhood association opponents of the plan claim that returning the jail to full use would damage the local community and believe that the site should be used for affordable housing and for a public middle school for local residents. They also allege that the city acted inappropriately by transferring inmates into the jail without informing the public of the planned renovation. The suit also alleges that the city broke the law by not submitting its plan to an analysis of environmental and community impacts.

Randy Mastro of Gibson, Dunn & Crutcher represents the plaintiffs in their lawsuit against the city. He filed a stipulation of adjournment with consensual emergency relief components when the parties appeared before Justice Sylvia Hinds-Radix with both sides agreeing that no new prisoners would be transferred into the jail. The proceedings are adjourned until December 18.

Wednesday, November 26, 2008

Happy Thanksgiving

The librarians at BLS wish all of you happy and healthy Thanksgiving and that hope you will take the time to relax and spend time with your families.

During this week of Thanksgiving — arguably the most American of holidays —NPR is spending time thinking about what it means to become an American. The answers come from three noted authors — Junot Diaz, Jhumpa Lahiri and Joseph O'Neill — who've written about newcomers to the United States.

One of the authors, Joseph O'Neill, talks to today’s Morning Edition in a recorded interview and says that the meaning of nationality and nationhood have changed dramatically in the past two decades. The age of globalization has led to what O'Neill calls an "enormous collapse in the idea of migration."

"It used to be the case that for an Irishman to come to the U.S. involved a perilous journey on a ship," O'Neill says. "It involved singing lots of songs before you left saying goodbye, and once you were in the U.S., it involved singing lots of songs about how you were never going to set foot in Ireland again."

Not so anymore. Nowadays, says O'Neill, the transfer of people from country to country is less decisive: "You can go backwards and forwards as much as you like, subject to legal and financial restrictions. And you can stay in touch with everyone back home. You can read their blogs, you can speak to them on the phone."

"One of the great pluses of being an immigrant is you get to start again in terms of your identity," he says. "You get to shed the narratives which cling to you." O'Neill says he found America to be a welcoming place, where people were less inclined to make judgments based on race or class — but also not particularly interested in learning about his background. "As long as you show willingness, they are prepared to stick the label of 'American' on you," he says.

Tuesday, November 25, 2008

Compliance Week in BLS Collection

The BLS Library has recently subscribed to Compliance Week, an online information service on corporate governance, risk and compliance that features a weekly electronic newsletter. Founded in 2002, Compliance Week has quickly become an important go-to resource for public companies; it reaches more than 26,000 financial, legal, audit, risk and compliance executives and is available to BLS library patrons. Patrons who want to access it should consult a reference librarian for the assistance.

Today’s issue includes an article Speculation: Obama on Enforcement, Taxes, Health by Jaclyn Jaeger (password required) reporting that corporate America needs to brace for more muscular and more cooperative regulatory enforcement efforts, new tax laws, and probably new regulations for how companies provide health insurance to the workforce, as the Obama Administration prepares to move into power next year.

Law firms, auditors, and consultants are furiously churning out legal memos and similar guidance, all speculating on how regulatory compliance may change once Jan. 20, 2009, rolls around. With only the first few Obama cabinet nominations dribbling out, nobody has any specifics yet, but already the contours of what to come are emerging. The article quotes Thomas Mueller, a partner at WilmerHale, that an Obama Justice Department—to be headed by Eric Holder, nominated just last week to be attorney general—will continue to make enforcement a high-priority item saying he expects to see a greater degree of cooperation between the Federal Trade Commission and the Justice Department, especially on issues like antitrust policy. “For the first time in quite a long time, antitrust policy actually surfaced as a campaign issue. . . There is today a greater tension on antitrust enforcement policies between existing actors,” he said. “There are tensions between the FTC and the DoJ; there are tensions between the United States and the rest of the world. That will force changes and force conflict that will need to get resolved.”

The article goes on to say that corporate America can also expect major changes in tax policy over the next several years. What those changes will be is anyone’s guess right now, but experts all agree that any short-term reform will be aimed at reviving the battered economy. Quoting Drew Lyon, a principal at PricewaterhouseCoopers, the article reports predicts no increase in the corporate tax rate (noting that the stated corporate tax burden in the United States is 39 percent) any time soon, since competitiveness in the marketplace will be a key concern for the next administration: “The U.S corporate tax rate is really at the very high end of the nations we compete against.” The article goes on to speculate that other reforms may come in the form of tax incentives for companies that tie in some way to maintaining and expanding domestic employment.

One other area of speculation is health care costs. Under Barack Obama’s plan to reform the system, employers would be required to provide insurance to employees or pay into a pool for the otherwise uninsured. How such a plan would be administered and enforced remains unclear right now.

Monday, November 24, 2008

Episode 034 - Conversation with Assistant Professor of Law Rebecca Kysar

Episode 034 - Conversation with Assistant Professor of Law Rebecca Kysar.mp3

Prof. Rebecca Kysar is one of seven new faculty members joining BLS for the 2008-09 academic year. Prof. Kysar has practiced since 2005 as a tax associate at Cravath, Swaine & Moore, with responsibility for all tax aspects of complex domestic and international transactions, including mergers and acquisitions, securities offerings, bank financings, joint ventures and restructurings. At BLS, Prof. Kysar teaches courses in Tax: International Transactions and Federal Income Taxation.

In this podcast, Prof. Kysar discusses her forthcoming article, Listening to Congress: Earmark Rules and Statutory Interpretation, in which she offers a proposal that serves as a counterpoint to the entrenched view that Congress cannot truly precommit itself through procedural rules regarding special interest spending and tax provisions. See Prof. Kysar's Selected Works page for additional scholarship she has published.

The library has recently acquired the CCH MulitNational OmniTax Library for Brookly Law School a subscription database that includes International Taxation, U.S. Taxation of Foreign Persons & Foreign Income by Professor Joseph Isenberg as well as Tax Analysts International, a weekly journal of international taxation. See a reference librarian for access to this new subscription.

Friday, November 21, 2008

Nationalizing Private Pensions

The financial crisis is being felt beyond the US. An article in today’s Bloomberg News reports that, in Argentina, the Peronist party-controlled Senate approved President Cristina Fernandez de Kirchner’s plan to nationalize the country’s $26 billion in private pension funds. Argentina's government says nationalizing the private pensions will protect retirees' savings during the current global economic turmoil. Opponents of the plan claim that the proposal is simply a cash grab and the state-run social security agency cannot be trusted to manage the funds responsibly. The controversial plan has resulted in Argentina’s stock market losing more than half of its value and sparked demonstrations throughout the country. Earlier this month on November 7, after a rigorous 14-hour debate, the Lower House passed the bill. With the recent Senate vote, the plan will become law.

International organizations that oversee global financial system institutions, like the IMF, have little faith in Argentina’s bookkeeping as Argentina defaulted on part of its external debt in2001-2002. Foreign sources of capital, including US banks, have been unwilling to do business with the Argentine treasury. In the case of Aurelius v. Argentina, 07-cv-02715 US District Judge Thomas Griesa of the Southern District of New York granted a temporary order freezing American assets owned by Argentine pension funds to prevent their transfer out of the US. The plaintiffs in that action were bondholders holding a $553 million judgment against the South American country. Another article in today’s Bloomberg News reports that Argentina's social-security administrator has asked Judge Griesa to expedite its appeal of his ruling freezing the country's transfer of its pension funds out of the US.

Pension fund nationalization in Argentina may not appear, on its face, to have implications for Americans but consider this posting from the Benefit Blog reporting on the push to have a universal pension in the US. In October, the House Committee on Education and Labor heard testimony by Prof. Teresa Ghilarducci of The New School for Social Research Department of Economics on The Impact of the Financial Crisis on Workers’ Retirement Security: Short Term and Long Term Solutions. That testimony included this proposal:
Short term, I propose that since 401(k) accounts and the like are financial institutions -- the bank about where 38% of the workforce can intend to save for their retirement -- Congress let workers trade their 401(k) and 401(k) - type plan assets (perhaps valued at mid-August prices) for a Guaranteed Retirement Account composed of government bonds (earning a 3% return, adjusted for inflation).

For researching Argentine sources of law, BLS students and facutly should consult the Foreign Law Guide on the library's database page. This subscription database is available through the BLS proxy server. Free web sites include the GlobalLex Research Guide to the Argentine Legal System. See also the Library of Congress site Portals to the World Argentina Selected Internet Sources.

Thursday, November 20, 2008

Judge Grants Habeas Petition for Guantánamo Detainees

Today, Judge Richard L. Leon of the US District Court for the District of Columbia issued an order directing the US government to free five of six Algerian men being held as enemy combatants at Guantanamo Bay. Judge Leon said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough for the purposes forwhich a habeas court must evaluate it. The sixth detainee was determined to be an enemy combatant due to additional corroborating evidence. Judge Leon, because of the classified nature of the Government’s evidence, did not go into detail about the deficiencies of the Government’s case.

Among the detainees was Lakhdar Boumediene, the lead plaintiff in the Boumediene v. Bush in which the US Supreme Court ruled that the detainees had a constitutional right to file habeas petitions in the federal courts to seek their release. The 5-4 decision said a 2006 law unconstitutionally stripped the prisoners of their right to contest their imprisonment in habeas corpus lawsuits. A NY Times article reports in greater detail about the facts surrounding the detention of the six men with other Guantánamo inmates.

Scotusblog reports that the judge, in an unusual comment from the bench, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. Judge Leon stated “Seven years of waiting for our legal system to give them an answer to their legal question is enough”.

For BLS library materials on habeas corpus, see the SARA catalog for Habeas Corpus: Practice Commentaries and Statutes by Steven M. Statsinger (Call # KF9011 .S73 2007) with chapters that include an overview of Habeas Corpus Procedures under 28 USC Sections 2241-2255 and Filing of habeas corpus application; time requirements; tolling rules.

Also see The Body and the State: Habeas Corpus and American Jurisprudence by Cary Federman (Call # KF9011 .F43 2006) with chapters on Understanding habeas corpus -- Habeas corpus in the new American state, 1789-1915 -- Bodily inventions: the habeas petitioner and the corporation, 1886 -- Habeas corpus as counternarrative: the rise of due process, 1923-1953 -- Confessions and the narratives of justice, 1963-1979 -- Future dangerousness and habeas corpus, 1982-2002 -- Habeas corpus and the narratives of terrorism, 1996-2002.

Thursday, November 6, 2008

Taking the Blues out of Bluebooking

Correctly formatting legal citations, the standard language used by lawyers and legal scholars to refer to legal authorities with sufficient precision so that others can follow the references, can be a tedious and time consuming process. First, you need to copy the quoted material, the case name, abbreviate parts of the names as required, determine the correct font and then make sure that you have the pinpoint page number. Now, CiteGenie, a new extension for Firefox, can help you to create Bluebook formatted pinpoint citations when copying from Westlaw. Lexis functionality is coming soon. The product is a plug-in that currently works in Firefox 1.5 through 3.0.x. A version for Internet Explorer 6.x is in development.

Installing the plug-in is very simple. Once you do so, a new option is added to the browser's right-click menu to "Copy with CiteGenie." To use CiteGenie, simply highlight the text in the court opinion from Westlaw, right-click and select the "Copy with CiteGenie" option (or just press Ctrl-Shift-C). Then you can paste the text into any other program, such as your word processor, and the text will be pasted, along with the pinpoint citation for the selected text from the court opinion. See the illustrated example on the CiteGenie page.

What’s interesting about CiteGenie is that it allows users to select the jurisdiction where they are publishing and then correctly formats the citation to match the requirements of the jurisdiction in which it is published. For example, a common problem in creating correct citations is citing a case where the state is a party. When writing a brief to a court in your state and citing a case in which your state is a party, your state is (usually) referred to as "State" in the case name. To another state's court, or to a federal court, that state is referred to by its name (e.g., "Georgia").

Using 284 Ga. App. 660, CiteGenie cited it for a Florida brief as:

Ga. Pub. Defender Standards Council v. Georgia, 644 S.E.2d 510 (Ga. Ct. App. 2007)

It cited that case for a Georgia brief as:

Ga. Pub. Defender Standards Council v. State, 284 Ga. App. 660, 644 S.E.2d 510 (2007)

Thanks to Marc Hershovitz for his Review of CiteGenie published on October 13 on LLRX.

Wednesday, November 5, 2008

Federal Preemption and NYC's Taxi Fleet

An earlier post on this page discussed the issue of federal preemption of state laws and regulations in the case of Wyeth v. Levine where the US Supreme Court heard oral argument on November 3. The issue now takes on a local flavor here in New York City. One way to describe the local case is:

The owner of a fleet of taxis, a cab driver and a frequent taxi cab passenger walk into a federal court room and sue the City of New York and the Taxi and Limousine Commission (TLC) claiming that local regulations that set minimum fuel efficiency standards for city cabs are preempted by federal laws that reserve regulation of those standards to federal agencies. Will the judge dismiss the suit and allow New York City to regulate its taxi fleet under a theory of home rule? Or will the judge rule that the City was indirectly trying to regulate fuel efficiency for automobiles covered by federal law.

The answer is not entirely clear but the opinion of Judge Paul A. Crotty of the Southern District of New York in Metropolitan Taxicab Board v City of New York suggests that the TLC may not set fuel efficiency standards for taxis holding a medallion from the city by virtue of the preemption doctrine. The ruling states that the TLC rule requiring taxis with medallions to achieve 30 mpg was an indirect way to regulate fuel efficiency for automobiles covered by federal law. The judge cited the expressly stated preemption clause in the Energy Policy & Conservation Act's (EPCA) codified at 49 U.S.C. § 32919(a):

When an average fuel economy standard prescribed under this chapter . . . . is in effect, a State or political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.
For more on the story and how its impact on New York City’s attempts to regulate the taxi industry, see the WSJ Law Blog story Preemption Means Latka Won’t Have To Fix Yellow Hybrids — Yet.

SARA, the library catalog, lists Congressional Preemption of State Laws and Regulations (Call # KF4600 .U55 2006), a 56 page partisan report prepared for Rep. Henry A. Waxman. The report evaluates the legislative record of the Republican Congress and President on federal preemption of state and local laws. Despite repeated support of federalism and states’ rights by the Republican Party, the report reveals that the GOP Congress and the President routinely backed federal legislation usurping traditional state powers.

The tensions between home rule and the regulatory powers of the federal government is explored in another item in the library collection, Saving our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People by David Schoenbrod (Call # GE180 .S374 2005).

Monday, November 3, 2008


The NY Times Week in Review’s article Must It Always Be About Sex? reports on oral argument that the US Supreme Court will hear on Election Day, November 4 in the case of FCC v. Fox Television Stations. The Court will address the issue of broadcast indecency in a case that turns on the FCC’s ban on the use of fleeting expletives in live television broadcasts. At issue is whether the FCC, in changing its policy on the uses of expletives on broadcast television to be considered “indecent”, provided an adequate explanation and thus acted properly under the Administrative Procedure Act, or instead whether it acted arbitrarily and capriciously.

The Court addressed the use of expletives on broadcast television nearly 30 years ago in its famous ruling in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), when it ruled for the first time that the Constitution allowed the government to prohibit the broadcast, on radio and TV of vulgar words that were indecent, though not obscene. After Pacifica, the FCC followed a policy of acting against broadcasters only if a broadcaster used indecent language in a sustained or repeated way. In March 2004, the agency issued an Order revising its policy, in response to complaints it received. The factual situations that gave rise to the complaints were:

2002 Billboard Music Awards: In her acceptance speech, Cher stated: “People have
been telling me I'm on the way out every year, right? So fuck ‘em.”

2003 Billboard Music Awards: Nicole Richie, a presenter on the show, stated: “Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.”

NYPD Blue: In various episodes, Detective Andy Sipowitz and other characters used certain expletives including “bullshit,” “dick,” and “dickhead.”

The Early Show: During a live interview of a contestant on CBS's reality show Survivor: Vanuatu, the interviewee referred to a fellow contestant as a “bullshitter.”

The FCC’s new policy treated as illegal even a single use of “the F-Word” on the air when it issued its “omnibus order” stressing the ban on single usage violations. Fox TV and other networks complained to the 2d Circuit Court about the new policy. In June 2007, the 2d Circuit Court issued its decision in Fox Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 which the US Supreme Court will now review.

The FCC's argument is that these bad words cannot be separated from their sexual connotations. The 2d Circuit decision made clear that there was absolutely nothing sexual about their use when Judge Rosemary S. Pooler wrote: “these words . . . as the general public well knows, are often used in everyday conversation without any 'sexual or excretory' meaning.”

This case is not about whether we want to hear TV characters or performers curse more. The case is about whether censorship is alive and well and whether we want the FCC to be able to punish TV networks for using nasty words. These are nasty words, but they are just words. If listeners do not want to hear them, they can change the channel or turn off the TV. The FCC’s concern for the sensitivities of listeners who are offended at hearing the word "fuck" is an example of overregulation that the Supreme Court has the opportunity to address when it decides if the FCC overstepped it bounds under the Administrative Procedure Act. For more reading, see the SARA catalog to find these titles:

Anti-indecency Groups and the Federal Communications Commission: A Study in the Politics of Broadcast Regulation by Kimberly Zarkin (Call # KF2805 .Z37 2003)

Broadcast Indecency: F.C.C. Regulation and the First Amendment by Jeremy Harris Lipschultz (Call # KF2805 .L57 1997)

Sunday, November 2, 2008

Does Your Vote Count?

On the eve of Election Day, the long presidential campaign appears to be finally coming to a conclusion. But not so fast, according to the National Archives and Records Administration (NARA). Remember the Electoral College. NARA has a web site that gives the history of the Electoral College system and the electoral process. Interestingly, the term "electoral college" does not appear in the Constitution although Article II, Section 1 of the U.S. Constitution states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
In explaining how the term "electoral college" came into usage, the NARA web site explains:

The founders appropriated the concept of electors from the Holy Roman Empire (962 - 1806). An elector was one of a number of princes of the various German states within the Holy Roman Empire who had a right to participate in the election of the German king (who generally was crowned as emperor). The term "college" (from the Latin collegium), refers to a body of persons that act as a unit, as in the college of cardinals who advise the Pope and vote in papal elections. In the early 1800's, the term "electoral college" came into general usage as the unofficial designation for the group of citizens selected to cast votes for President and Vice President. It was first written into Federal law in 1845, and today the term appears in 3 U.S.C. section 4, in the section heading and in the text as "college of electors."
Key dates in the electoral process are:

November 4, 2008 - General Election: The voters in each State choose electors to serve in the Electoral College. As soon as election results are final, the States prepare seven or nine original "Certificates of Ascertainment" of the electors chosen, and send one original along with two certified copies (or three originals, if nine were prepared) to the Archivist of the United States.
December 15, 2008 - Meeting of Electors: The electors in each State meet to select the President and Vice President of the United States. The electors record their votes on six "Certificates of Vote," which are paired with the six remaining original "Certificates of Ascertainment." The electors sign, seal and certify the packages of electoral votes and immediately send them to the President of the Senate, the Archivist of the United States and other designated Federal and State officials.
December 24, 2008 - Deadline for Receipt of Electoral Votes: The President of the Senate, the Archivist of the United States, and other designated Federal and State officials must have the electoral votes in hand.
January 6, 2009 - Counting Electoral Votes in Congress: The Congress meets in joint session to count the electoral votes (unless Congress passes a law to change the date).

NARA has published The 2008 Presidential Election/Provisions of the Constitution and United States Code, a pamphlet that explains its role in the Presidential election process the process where NARA’s Office of the Federal Register (OFR) acts as the administrator of the Electoral College on behalf of the states. The pamphlet lists the key provisions of the US Constitution and Title 3 of the US Code that govern the process. Election Day is not the end of the election but is just the first step in a much more detailed procedure whose outcome is not officially known until January 6, 2009 with the counting of the electoral votes in Congress.

We all remember the 2000 election when Al Gore received 537,179 more popular votes than George Bush on that Election Day. After the Electoral College met, they awarded the electors from the state of Florida to Bush and he won the presidency. There were three other instances in which the Presidential candidate with the most popular votes did not win the presidency. They were:

  • 1824 John Quincy Adams received fewer votes than Andrew Jackson. Adams was awarded the Presidency after the House voted on it.
  • 1876 Rutherford Hayes lost the popular vote to Samuel Tilden. Hayes received 5 of the 6 smallest states electoral college votes along with Colorado to win.
  • 1888 Benjamin Harrison lost the popular vote to Grover Cleveland, but he won the electoral college by 65.

So this raises the question: why have an Electoral College? This past month, on October 23, BLS had such a presentation by BLSPI and the ACLU called Does Your Vote Count? A Debate About the Electoral College. Speaking in favor of the electoral college were Diane Mirabile and Raphael Ruttenburg; Paul Carlson and Rob Kornblum spoke in support of the Popular Vote.

Library resources on the topic include:

Taming the Electoral College by Robert W. Bennett (Call # KF4911 .B46 2006)

Why the Electoral College is Bad for America by George C. Edwards, III (Call # JK529 .E38 2004)

Choosing a President: the Electoral College and Beyond edited by Paul D. Schumaker, Burdett A. Loomis (Call # JK528 .C44 2002)

Securing Democracy: Why We Have an Electoral College edited by Gary L. Gregg II with an introduction by Mitch McConnell (Call # JK1976 .S43 2001)

The Case against Direct Election of the President: a Defense of the Electoral College by Judith Best (Call # KF5051 .B43) (1975)

Thursday, October 30, 2008

Federal Bailout Funds and Executive Bonuses

The NY Times article Cuomo Asks for Pay Data From Banks reports that the New York Attorney General has joined Rep. Henry A. Waxman in seeking greater oversight of nine big financial institutions (Citigroup, Bank of America, Bank of New York Mellon, Goldman Sachs, JPMorgan Chase & Co., Merrill Lynch, Morgan Stanley, State Street Corporation and Wells Fargo) that received government aid under the recent bailout to be sure that they do not use the money for bonuses or other payments. According to the article, “bonus payments are already expected to be as much as 50 percent smaller than last year and perhaps even far smaller at banks that posted big losses. The New York State comptroller estimated that Wall Street paid $33.2 billion in bonuses for 2007, compared with $33.9 billion the year before.”

The NY Attorney General’s letter asks the banks for “detailed accounting regarding your expected payments to top management in the upcoming bonus season.” In the letter, Cuomo suggest that such payments may violate N.Y. Debtor & Creditor Law § 274 as illegal fraudulent conveyances.

Rep. Waxman’s letters requesting compensation and bonus information for employees of major banks are available at the Committee on Oversight and Government Reform webpage.

Wednesday, October 29, 2008

Google Settles Book Search Copyright Lawsuit

Google has announced that it has settled the “book search” class action lawsuits filed against it in 2005 by the Authors Guild and the Association of American Publishers. The complaint in The Authors Guild, Inc., et al. v. Google Inc., filed in the Southern District for the District of New York, accused Google of massive copyright infringement by reproducing works that were not in the public domain in violation of the Copyright Act, 17 USC § 101 et seq. Google Book Search, which scans books and then distributes them online, was accused of violating the copyrights of publishers and authors. The settlement, which is subject to final court approval, calls for Google to pay $125 million to litigants. It also clears the way for Google to continue scanning books and establishes some novel services and distribution mechanisms for the future.

The proposed settlement agreement, if approved by the US District Court, is seen as a victory for researchers and will provide enhanced access to copyrighted works through Google Book Search and a mechanism for the compensation of copyright holders. For more information, see the Authors Guild v. Google Settlement Resources Page. See Google’s web page to see how the settlement will affect Google Book Search.

Friday, October 24, 2008

Lawyers Who May Run America

The November issue of the ABA Journal has two covers: the front cover features a painting of John McCain taking the oath of office and the back cover features Barack Obama taking the oath. The main story behind the dueling covers is titled The Lawyers Who May Run America and lists the attorneys who may be appointed to senior positions in a McCain or Obama administration including possible nominees to open seats on the US Supreme Court.

The article lists attorneys who are favorites to join the administration of the winning candidate, according to interviews with people who know each candidate well. If Obama wins the election, you can see the lawyers who may hold key positions by clicking here. For a look at the lawyers who may join a McCain administration, click here.

Thursday, October 23, 2008

US Supreme Court to Rule on Sealed Docket

Scotusblog includes New York Law Publishing Company, et al., v. Jane Doe, et al. in its “Petitions to Watch” with the issue being whether, under the First Amendment, the blanket sealing of a case is presumptively unconstitutional. The case involves the Legal Intelligencer, the oldest daily legal newspaper in the United States, which has asked the U.S. Supreme Court to overturn a decision that allowed all records in a federal employment discrimination case to be hidden from the public.

According to the Legal Intelligencer, the documents in the case of Doe v. C.A.R.S. Protection Plus Inc., 527 F.3d 358 (3d Cir. 2008) have been under seal for more than seven years. The case came to light in May, when the Third Circuit unanimously reversed the trial court's dismissal of a sex discrimination suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities, and that she was fired three days later – the day she attended the funeral for the baby. The case raises a question of first impression as the 3rd Circuit held that Title VII, as amended by the Pregnancy Discrimination Act, protects a worker's right to terminate a pregnancy because an abortion qualifies as a "related medical condition." The 3rd Circuit's decision was significant because it held for the first time that a woman's decision to terminate a pregnancy is protected under Title VII.

The 3rd circuit’s ruling left in place the trial judge’s decision to seal all documents in the case. In a separate motion, the newspaper asked the 3rd Circuit to unseal the case at the appellate level where all documents and the court's docket are likewise under seal The Third Circuit Court of Appeals rejected the newspaper’s request to intervene in to unseal the docket and record in a two page order ruling that the entire file in the case may be sealed. The newspaper has now filed a Petition for a Writ of Certiorari with the US Supreme Court challenging the constitutionality of such a blanket sealing order. The newspaper relies on a Second Circuit opinion, Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004), for the principle “that the public and press have a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings”.

The brief noted "This case has been conducted for seven years in complete secrecy, a testament to the need for the Court's guidance regarding the right of access to civil hearings and records." The brief urged the Court to accept review to correct the mistakes below and "clarify that the public has a constitutional right of access to civil proceedings and records, because civil proceedings implicate precisely the same concerns about the fairness of the justice system that underlie the right of access to criminal proceedings."

Monday, October 20, 2008

BLS Prof. Susan N. Herman named ACLU President

The American Civil Liberties Union (ACLU) has named BLS Prof. Susan N. Herman as its new president. The organization issued a press release on the election of Prof Herman on Saturday, October 18. A constitutional and civil rights scholar, Herman previously served as the ACLU's general counsel and succeeds former ACLU president Nadine Strossen who held the position since 1991. Prof. Herman has had a long affiliation with the ACLU having worked as an ACLU intern while still in law school She has also served on its board of directors, written Supreme Court briefs for the organization and lobbied Congress on the group's behalf.

Prof. Herman is an expert on the US Supreme Court expert with a focus on criminal procedure. She participated in a BLS Library Blog podcast in August of 2008 when she discussed the Tenth Annual Supreme Court Review sponsored by the Practicing Law Institute (PLI) in New York, NY. The BLS Library catalog lists seventeen items (print, video and audio) where Prof. Herman contributed as an author or as a participant. Professor Herman's scholarly and legal writings are available on her Selected Works page.

Thursday, October 16, 2008

US Administrative Regulations and Preemption of State Law

The Wall Street Journal has an article about how "Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states." The effort involves a number of federal agencies including the Food and Drug Administration the National Highway Traffic Safety Administration, the Consumer Product Safety Commission, the Transportation Security Administration and the Federal Railroad Administration. If successful, the effort to promulgate new regulations that preempt enforcement by the states will have a major impact on American tort law. So far, the issue has gone largely unnoticed. Tort reform has been a major goal of the Bush Administration to insulate the business community from higher regulatory standards imposed by the states as well from lawsuits filed by the plaintiff bar in the civil justice system. Having had little success in Congress, the Bush Administration initiative is for dramatic changes in federal agency positions on preemption of state law in environmental, health, safety, and consumer protection areas focused on the regulatory process to achieve that goal.

The American Association for Justice (AAJ) has just released a new report, Get out of Jail Free: a Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability, based in part on documents obtained through FOIA, detailing the Bush Administration's use of preemption as a deregulatory strategy. The report provides detailed examples of how federal agencies have tried to usurp state law and undermine consumer protections. AAJ's report explains how the administration's first attempts to preempt state-law protections consisted of amicus briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting regulatory agencies in charge of product safety oversight. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations are now using this legal theory to challenge verdicts in product liability cases.

A major case pending before the US Supreme Court on this issue is Wyeth v. Levine which will decide this term whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved. The case involves a jury verdict in a failure-to-warn product liability case in amount of $6.5 million in favor of plaintiff Diana Levine, who suffered severe injury and the amputation of her arm as a result of being injected with the defendant's drug Phenergan directly into her artery as a treatment for nausea from a migraine headache. The pharmaceutical company defendant argues that Vermont's stricter regulations on administering the drug are preempted by less stringent federal regulations. The Supreme Court of Vermont issued its opinion in favor of the plaintiff in October 2006. For more on the Wyeth case, read former BLS Prof. Anthony Sebok’s FindLaw article More on the Upcoming Supreme Court Case of Wyeth v. Levine and the Preemption Temptation.

For reading on the issue, see in the BLS Library collection Federal Preemption of State and Local Law: Legislation, Regulation, and Litigation by James T. O'Reilly (Call # KF4600 .O74 2006) with chapters including: The basics on preemption -- Preemption categorizations -- Constituencies for preemption -- Constitutional background -- Political and policy debates -- Federal mechanisms for agency preemption -- Express congressional decisions to preempt -- Implied forms of preemption -- Defensive use of federal preemption in civil litigation.

Monday, October 13, 2008

Natural Born Citizen

The end of the long presidential campaign is just three weeks away. There is some possibility that the campaign will continue beyond election day with litigation similar to that which resulted in the US Supreme Court decision in Bush v. Gore, 531 U.S. 98 (2000). Both major party candidates have had to respond to lawsuits challenging their eligibility for the Office of the President under Article II, Section I of the US Constitution which reads:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
At issue is the term “natural born Citizen”. Three cases have challenged Sen. John McCain’s eligibility on the ground that he is ineligible due to his birth in the Panama Canal Zone: the first was Inland Empire Voters v. United States, filed in the US District Court for the Central District of California; the second was Hollander v. McCain, filed in the US District Court for the District of New Hampshire; and the third, Robinson v. Bowen, was filed in the US District Court for the Northern District of California in August 2008. All cases were dismissed due to the plaintiff’s lack of standing. Interestingly, District Court Judge William Alsup in his September 16 opinion dismissing the Robinson case stated:

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review--if any--should occur only after the electoral and Congressional processes have run their course.
The September 2008 issue of First Impressions, the online companion to the Michigan Law Review has an Online Symposium on Senator John McCain and Natural Born Citizenship with five scholarly articles debating the issue.

Now a new suit, Berg v. Obama, has been filed in the US District Court for the Eastern District of Pennsylvania alleging that Sen. Barack Obama is not eligible to be President on the natural born citizen issue. A Motion to Dismiss the complaint is pending before the Court. The motion is grounded on the plaintiff’s lack of standing and cites as authority the dismissed cases that were filed against Sen. McCain.

Whatever the election results, the possibility of the final outcome being resolved in the US Supreme Court may not be so far-fetched.

Sunday, October 12, 2008

False Claims Act and Qui Tam Actions

On June 9, 2008, the US Supreme Court issued a unanimous decision in Allison Engine Co., Inc. v. United States, ex rel. Sanders, strictly construing the language of the False Claims Act ("FCA"). The case involved two FCA suits alleging fraud in the negotiation and execution of subcontracts relating to the construction of Navy destroyers for components for the ships costing nearly $1 billion. The issue before the Court was whether the FCA covered false claims presented not to the Government, but to a contractor or other recipient of federal funds. The Court held that mere proof that a false or fraudulent claim was paid using government funds is not sufficient to establish liability under the law. Instead, the Court held that the FCA imposed a presentment requirement on plaintiffs to show that a defendant intended for the government to pay the claim, or that the government actually paid the specific claim.

The FCA, originally called the "Lincoln Law," was first enacted in 1863 to combat fraud by companies that sold supplies to the Union Army. The law contains "qui tam" provisions that allow private citizens (whistleblowers suing on behalf of the government or “relators”) to sue companies or individuals defrauding the government. Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means “who pursues this action on our Lord the King’s behalf as well as his own.”

Traditionally, FCA claimants sued under 31 U.S.C. § 3729(a)(1), which imposes liability on any person who knowingly “presents, or causes to be presented" a false or fraudulent claim to the US. More recently, suits sought to broaden the reach of the FCA by bringing claims under 31 U.S.C. § 3729(a)(2), which imposes liability on any person who knowingly uses a "false record or statement to get a false or fraudulent claim paid or approved by the Government." FCA suits have also used 31 U.S.C. § 3729(a)(3), which imposes liability on any person who "conspires to defraud the Government by getting a false or fraudulent claim allowed or paid." The argument under these provisions is that a defendant is liable for false claims made to a private entity, as long as the entity used government funds to pay the claim. Under this view, companies who have never done business with the government could be liable. Lower courts have disagreed over the correct interpretation of subsections (2) and (3). In the Allison Engine litigation, the 6th Circuit ruled that the FCA applies to any defendant whose invoice was paid using federal funds. The DC Circuit rejected this interpretation concluding that it "would make the potential reach of the Act almost boundless."

The Supreme Court’s decision subjects whistleblowers' allegations to closer scrutiny by imposing liability under the FCA for false or fraudulent claims where government money is paid "by the government". The Sixth Circuit held that proof of intent to cause a false claim to be paid by a private entity "using" government funds was sufficient to establish a violation of the FCA. The Supreme Court flatly rejected this view saying that the Federal government "must literally pay the bill". There must be a direct link between the false statement and the federal government's decision to pay or approve the false claim.

The 110th Congress is debating the False Claims Act Correction Act of 2008, which could significantly amend the FCA. The legislation would extend the reach of the FCA to any claim in which federal funds were involved in an actual or potential payment, irrespective of whether whether the federal government actually pays such claims directly or whether the defendant intended specifically to defraud the federal government (as opposed to intending to submit a false claim). A version of the bill was reported on September 25 by the Senate Judiciary Committee when it issued Senate Report 110-507.

See the library's recent acquisition The 7th Annual National Institute on Civil False Claims Act and Qui Tam Enforcement (Call # KF849 .C58 2008) for additional reading on the topic. This item has a CD component for study of the civil False Claims Act, one of the fastest growing areas of federal litigation, because of its unique qui tam enforcement mechanism. It brings together experts from all areas - healthcare, defense, pharmaceutical, oil and gas, accounting and consulting, construction, higher education and grant recipients - in which qui tam lawsuits under the FCA have been filed.

Friday, October 10, 2008

Connecticut Allows Same-Sex Marriage

Today, the Connecticut Supreme Court issued its opinion in Kerrigan v. Commissioner of Public Health ruling that same-sex couples have the right to marry. The case began in 2004 with the filing of a complaint by same-sex couples claiming that their constitutional rights to equal protection and due process were violated when they were denied marriage licenses. In April 2005, the Connecticut General Assembly enacted Public Act 05-10 to allow same-sex couples to obtain civil union licenses. Section 14 of that law reads:

Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.
The plaintiffs filed a motion for summary judgment and its supporting memorandum on the merits of the case. The Attorney General, in opposition, filed a reply brief and sought summary judgment on behalf of the State. On June 12, 2006, Judge Pittman denied the plaintiff’s motion, in an opinion ruling that the exclusion of same-sex couples from marriage did not violate the Connecticut Constitution.

The Supreme Court reversed the trial court agreeing with the plaintiffs that the state's marriage law discriminates against them because it applies only to heterosexual couples, therefore denying gay couples the financial, social and emotional benefits of marriage.

The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the state’s disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs’ claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state’s bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial court’s judgment and remand the case with direction to grant the plaintiffs’ motion for summary judgment.
The decision makes Connecticut the third state where the highest court has ruled to legalize same-sex marriage, following the Supreme Courts of Massachusetts (Goodridge v. Dept. of Public Health) and California (In re Marriage Cases). The constitutionality of prohibiting marriage to same-sex partners has come before the Court of Appeals in New York (Hernandez v. Robles) and the New Jersey Supreme Court (Lewis v. Harris) but those courts decided to defer to their respective state legislatures.

This November, voters in several states will cast their ballots on the issue of same-sex marriage. California voters will decide on Proposition 8 which changes the California Constitution to eliminate the right of same-sex couples to marry in California. Arizona will vote on Propostion 102 which will "amend the Arizona Constitution to provide that only a union of one man and one woman shall be valid or recognized as a marriage". Florida has Amendment No. 2 on its ballot. The Florida Marriage Protection Amendment states "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

For more reading, see Same-Sex Marriage and the Constitution: We All Deserve the Freedom to Marry by Evan Gerstmann (Call # KF539 .G47 2008) in the BLS collection. Chapters include: Reason and prejudice: is the heterosexual monopoly on marriage rational? -- Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection -- The fundamental right to marry -- Same-sex marriage and the fundamental right to marry -- Should courts create new rights?

See also, Beyond Straight and Gay Marriage: Valuing All Families under the Law by Nancy D. Polikoff (Call # 38 .P65 2008) which has chapters: The changing meaning of marriage -- Gay rights and the conservative backlash -- Redefining family -- The right and the marriage movement -- LGBT families and the marriage-equality movement -- Countries where marriage matters less -- Valuing all families -- Domestic partner benefits for all families -- Coping with illness : medical care and family and medical leave