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)