Episode 036 - Conversation with Professor of Law Deborah A. Widiss

Episode 036 - Conversation with Professor of Law Deborah A. Widiss.mp3

This pod cast features Visiting Assistant Professor of Law Deborah A. Widiss discussing her article Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides soon to be published in the Notre Dame Law Review. Professor Widiss won the Scholarly Paper Award for the article at the 2009 AALS Annual Meeting in early January in San Diego. The Special Committee to Review Scholarly Papers chose her paper out of almost 60 papers submitted.

In the article, Professor Widiss addresses Congressional overrides of judicial interpretations of statutes. She argues that because judges are often faced with determining the exact extent to which Congress has overridden a judicial decision, they can easily leave in place as precedent the very concepts that Congress sought to override. When other courts follow these “shadow precedents,” legislative supremacy is threatened and the standard rationales offered for adherence to precedent are undermined. In this pod cast, Professor Widiss discusses the Lilly Ledbetter Fair Pay Act of 2009, the most recent Congressional override of a Supreme Court decision.

Professor Widiss joined Brooklyn Law School’s Visiting Assistant Professor Program in 2007 and is completing her two-year term this spring. She teaches Employment Discrimination, Legislation and Statutory Interpretation, and Family Law. Her research interests include employment law, the legislative process, and the significance of gender and gender stereotypes in the development of law and government policy. Her recent publications include Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy in the Florida State University Law Review (2008) and a co-written article, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence which appeared in the Harvard Journal of Law and Gender (2007) and received a Dukeminier Award from the Williams Institute at UCLA Law School.

Congressional Override of US Supreme Court Decision

Today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (Public Law 111-2) the first major piece of legislation enacted into law in the new Congress. In his remarks at the signing ceremony, the President said: “It is fitting that with the very first bill I sign - the Lilly Ledbetter Fair Pay Restoration Act - we are upholding one of this nation's first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness. . . But equal pay is by no means just a women's issue - it's a family issue.”

The bill signing comes after lengthy litigation that resulted in the 2007 US Supreme Court 5-4 ruling in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), that reversed a $3 million jury award that found that Goodyear discriminated against her in pay, giving her smaller raises than the male managers. The basis of the Supreme Court ruling was the narrow issue of limitation of actions and that Ledbetter’s claims had to be filed within 180 days of the first time Goodyear paid her less than her peers. The decision became a major issue during the presidential campaign dividing the Democratic and Republican parties. The Democrats viewed the case as an ideologically driven decision — one that tossed aside precedent and logic — and campaigned in Congress to override the decision by enacting corrective legislation. The Republicans (almost united in their opposition to eliminating any time requirement for filing a claim involving pay discrimination and extending an expanded statute of limitations) led a successful filibuster against the bill in 2008 and this year unsuccessfully proposed eight amendments to weaken the legislation.

The passage of the new legislation raises broader questions about congressional overrides of US Supreme Court decisions in general. We generally assume that the courts – and especially the Supreme Court – have the “last word” on the meaning of Congressional statutes. But today’s bill signing makes clear that Congress can act to change or to clarify the legal framework in response to judicial decisions when those decisions have produced outcomes that are not favored by a congressional majority. The BLS library has in its collection a number of items that address the issue of congressional overrides of court cases including these two volumes:

Overruled?: Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations by Jeb Barnes (Call # KF425 .B37 2004)

and

Making Policy, Making Law: an Interbranch Perspective edited by Mark C. Miller and Jeb Barnes (JK305 .M35 2004)

The Second Amendment and Nunchacku

Last term’s US Supreme Court decision in District of Columbia v. Heller (that the Second Amendment to the US Constitution protects an individual's right to possess a firearm for private use) apparently does not extend to nunchacku or nunchaks, according to the Second Circuit Court of Appeals. Today, that court issued its opinion in Maloney v. Cuomo which may bring to an end the long battle by the plaintiff in that case, a Port Jefferson attorney, who challenged his arrest for possession in his home of two "chuka sticks," or "nunchaku." The case has a long and tortured history which is summarized in a Law.com article entitled N.Y. Attorney Vows to Fight 'Nunchaku Intolerance'. Today’s decision by the Second Circuit affirms a ruling by Judge Arthur Spatt of the Eastern District of New York that denied Maloney's claim that §265.01 of New York's Penal Law violated his Second Amendment right to keep and bear arms. Subsection 14 of that section of the NY Penal Law defines a “chuka stick” (or “nunchaku”) as:

"any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person bystriking or choking."

On the issue of whether the Second Amendment applies to the States, the Second Circuit ruled:

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. [Citations omitted] Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. . . And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” [Citations omitted] Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.

Whether the plaintiff will seek US Supreme Court review is an open question. However, the passion he brings to the topic of Nunchaku Intolerance on his website suggests that such an appeal is likely.

Executive Order on Presidential Records

In a victory for historians, researchers and advocates of open government, the Obama Administration issued its first Executive Order entitled Presidential Records on January 21. It revokes Executive Order 13233 issued by George W. Bush in November of 2001 which gave ex-presidents and their families unprecedented powers to block public access to White House records. The effect of this latest Executive Order is to regulate the influence ex-presidents and their heirs can exert to block the release of sensitive documents pertaining to their time in the White House.

To understand what Executive Order 13233 did, some background is needed. As part of the reforms enacted after the Watergate scandal that led to the impeachment of Richard Nixon, the Presidential Records Act (PRA) of 1978 (codified at 44 U.S.C. 2201-2207) changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records. The records of former President Ronald Reagan were the first Presidential records to be governed by the PRA.

When the presidential papers of Ronald Reagan were due to be made public, the Bush Administration instructed the Archivist to delay release of the Presidential records of former President Reagan. In November 2001, President George W. Bush issued EO 13233 giving current and former presidents, their heirs or designees, and former vice presidents broad authority to withhold presidential records or delay their release indefinitely. Less than a month after EO 13233 was issued, the American Historical Association brought suit against the federal government questioning the order’s legality. In October 2007, US District Court Judge Colleen Kollar-Kotelly issued an opinion that gave historians and researchers a partial victory striking the section of the EO that allows a former president to delay indefinitely the release of records. The opinion did not rule on the legality of the sections of the Executive Order allowing heirs and designees of former presidents, and former vice presidents, the authority to control the release of documents, calling them “unripe” since no records had yet been withheld under those provisions, leaving open challenges of these provisions in the future.

Section 5 of President Obama’s first Executive Order removes any question about such challenges for now by stating “Executive Order 13233 of November 1, 2001, is revoked.” Brooklyn Congressman Edolphus Towns has introduced the Presidential Records Act Amendments of 2009 (H.R. 35) that would make these new rules permanent law. The House has passed the bill and it is now pending action in the Senate.

HeinOnline: More than Law Review Articles

Many law students and legal researchers know how to use Hein Online to find older law review articles which are not on Lexis or Westlaw. Hein has added new libraries to its database, including the following, which are available in the BLS Library electronic collection:

• Subject Compilation of State Laws is a way to find out the law in all fifty states. For a particular subject, it lists law review articles, books, court briefs, opinions and websites which cite to statutes in each of the fifty states.
• U.S. Code – Copies of the official U.S. Code published by the government every six years. 1925 through 2006 editions are available.
• National Moot Court Competition – The winning briefs from 1950 on.
• United Nations Law Collection – With exact reproductions of major United Nations legal publications, including the complete collection of the United Nations Treaty Series.

Hein has made these two videos which explain how to use the Subject Compilation of State Laws library and the United Nations Law Collection.

Subject Compilations of State Laws - Getting Started

HeinOnline's United Nations Law Collection

Dr. Martin Luther King, Jr. Documents

In time for today’s Rev. Martin Luther King, Jr. holiday, the collection of M.L.K. papers, books and other items are available to the public at the Woodruff Library at Morehouse College in Atlanta. The website provides archival descriptions and other study aides and describes the collection overview:

The Morehouse King Collection includes approximately 1,000 books from Dr. Martin Luther King Jr.’s personal library with his handwritten notes throughout. In addition, there are hundreds of handwritten index note cards, possibly used for reference as Dr. King developed his many oratorical speeches and academic assignments, and many more typed and handwritten manuscripts and items, including: a telegram from President Lyndon B. Johnson inviting him to the signing of the voting rights act in 1965; handwritten edits of eulogies delivered on behalf of martyred adults and children of the Civil Rights Movement; drafts of numerous sermons, famous speeches; “to-do” lists for civil rights leaders the Rev. Joseph Lowery, Walter Fauntroy and Andrew Young; credit card receipts; travel coupons; examination blue books from college and even the cosmetics containers of found within a suitcase and briefcase used when he traveled.

More highlights are noted here.

Another collection of material related to Dr. King is the Complete FBI File on Martin Luther King, Jr. consisting of 16,659 pages. The FBI has posted 201 pages in two parts on its web site here. The rest of the file can be found online in a series of zip file on this site posted by The Memory Hole. Documents have been censored and many pages include blacked-out sections.

There are an additional 11,000 plus pages posted on this FBI web page here relating to the FBI file of security investigations of Stanley Levison from the 1950's through the early 1970's. Levison was a key advisor to Martin Luther King, Jr. LexisNexis Black Studies Research Sources has User Guides relating to both the King and the Levison files.

The FBI’s tracking of King is covered by David Garrow, The FBI and Martin Luther King, Jr.: From “Solo” to Memphis (Call # E185.97.K5 G37 1981) available in the BLS Library collection.

The 16,659 pages are just a portion of King’s FBI files. The FBI withheld some pages under exemptions allowed by the Freedom of Information Act. On January 31, 1977, in the cases of Bernard S. Lee v. Clarence M. Kelley, et al. (U.S.D.C., D.C.) and Southern Christian Leadership Conference v. Clarence M. Kelley, et al. (U.S.D.C., D.C.), US District Judge John Lewis Smith, Jr., ordered the FBI to purge its files of all known copies of the recorded tapes relating to Martin Luther King, Jr. Judge Smith also ordered the FBI to deliver the tapes and documents to the custody of the National Archives and Records Service (NARA) to be maintained by the Archivist of the United States under seal for a period of fifty years. Part 1 of the User Guide above has more to read about this.

Five Electronic Tax Research Databases Compared

A recent post in the Law Librarian Blog linked to an abstract of interest to tax researchers. The link is to the Social Science Research Network (SSRN) article by three Loyola Law School tax professors entitled The Virtual Tax Library: A Comparison of Five Electronic Tax Research Platforms. The article comparrs five online tax research databases and the primary and secondary resources and features that they offer. The databases, LexisNexis, Westlaw, BNA Tax Management Library, CCH Tax Research NetWork and RIA Checkpoint, are all available on the BLS Library database page. Each of the databases is a virtual tax library offering tax researchers much of the content and functionality of a physical tax library, as well as some useful functionality features (e.g., direct linking of primary and secondary sources) a physical tax library cannot provide.

The Article provides detailed comparisons of the content and features offered by each of the five databases. It also explains how to access various types of primary and secondary tax sources in each database and provides detailed search pathways that will help tax researchers better navigate the databases. The article has two useful appendices to help tax researchers better understand the differences in the databases. Appendix A provides a side-by-side comparison of the primary source content available on the five electronic tax research databases with search pathways and date restrictions for each type of content. Appendix B provides a side-by-side comparison of the functionality features offered by each database. The chart includes quick reference guides for initiating various types of searches, as well as user support information for each platform.

Key Evidence Issues for 2008 and 2009

The Federal Evidence Blog recently posted a list of ten potential evidence issues worth watching in 2009. The list, in no particular order, follows and is described in greater detail in the blog post here:

1. Attorney General Confirmation Hearings (the Holder Memo on bringing criminal charges against corporations)
2. Supreme Court: Pending Melendez-Diaz Confrontation Clause Decision
3. New Rule: FRE 502 (Attorney-Client Privilege and Work-Product Doctrine)
4. The Selective Waiver Doctrine
5. Pending Rule Amendment: FRE 804(b)(3) (Declarations Against Interest)
6. Future Rule Amendment: "Restyling" The Federal Rules of Evidence
7. Expert Evidence: Tenth Circuit En Banc Ruling Pending in United States v. Nacchio
8. Legislation: Attorney-Client Privilege Protection Act and Reporter Shield Law
9. Legislation: Reporter Shield Law
10. Pending Circuit Split: Resolving FRE 404(b) Elements Conflict

A look back at the ten evidence issues of 2008 is listed below and is explained in the blog entry here:

1. New Rule: FRE 502 (Attorney-Client Privilege and Work-Product Doctrine)
2. Supreme Court: Underscoring Primary Role of Trial Court in Making Initial Evidence Rulings: Sprint/United Management Co. v. Mendelsohn
3. Supreme Court: Giles v. California Confrontation Clause Forfeiture by Wrongdoing Decision
4. Expert Testimony: What are the Limits of an Expert’s Reliance on Inadmissible or Other Materials under FRE 703?
5. Legislation: Forestalling the Attorney Client Privilege Protection Act
6. Pending Open Issue: Whether Admitting Business Records Certified under FRE 902(11) May Violate the Confrontation Clause?
7. Expert Testimony: Explaining Online Behavior
8. Developing Consensus: Bruton Is Inapplicable in Bench Trials
9. Legislation: Reporter Shield Law
10. Developing Consensus: Enforcing Plea Proffer Waivers under FRE 410

Episode 035 - Conversation with Kiran Gore, Class of 2009

Episode 035 - Conversation with Kiran Gore, Class of 2009.mp3

This pod cast features BLS student Kiran Nasir Gore, Class of 2009, who won first place in the 2008 Hon. William C. Conner Intellectual Property Writing Competition sponsored by the New York Intellectual Property Law Association. Kiram discusses her note, “Trademark Battles in a Barbie Cyber World: Trademark Protection of Website Domain Names and the Anticybersquatting Consumer Protection Act”.

The note discusses the tension between Mattel’s intellectual property rights and the public’s right to invoke the imagery of the iconic Barbie doll and examines the recent dispute between Mattel and a pornographic website using the Barbie name. “Barbie has become an American icon and taken on additional meanings and status at a societal level, attracting the attention of artists, writers, academics, and commentators in a way that is beyond the scope of Mattel’s trademark property rights,” Gore says. The note is scheduled for publication in the winter 2009 issue of the COMM/ENT, Hastings Communication and Entertainment Law Journal, Volume 28, No. 2.

Gore is currently a Notes and Comments Editor of the Brooklyn Law Review.

California Court Rules on Church Property Cases

In its first case of the New Year, the California Supreme Court issued its Episcopal Church Cases opinion to resolve property rights claims by a congregation that breaks with its parent church and whether the schism results in the loss of church buildings and property. The facts of the case involve the Episcopal Church, but the impact of the opinion will apply to other denominations. What prompted the litigation was the secession of the St. James Anglican Church in Newport Beach from the national church after the national church consecrated a gay man, V. Gene Robinson, as bishop of New Hampshire in 2003. The California Supreme Court in its opinion was careful to avoid deciding questions of religious doctrine and instead relied on the “neutral principles of law” standards articulated by the US Supreme Court in its 1979 decision in Jones v. Wolf, 443 U.S. 595.

The California Court ruled that the building and property of the local congregation belong to the Episcopal Church, not the parish, once the parish broke away and affiliated with the more conservative Anglican Church of Uganda. Using principles of general property law, the Court held that the Canons of the Episcopal Church provide that property held by a local parish is held in trust for the general church and for the diocese in which the local church is located. In its ruling, the Court said:

For these reasons, we agree with the Court of Appeal’s conclusion (although not with all of its reasoning) that when defendants disaffiliated from the Episcopal Church, the local church property reverted to the general church. As stated in one of the out-of-state cases involving the same Episcopal Church, “[t]he individual defendants are free to disassociate themselves from [the parish and the Episcopal Church] and to affiliate themselves with another religious denomination. No court can interfere with or control such an exercise of conscience. The problem lies in defendants’ efforts to take the church property with them. This they may not do.”

The outcome in a similar dispute involving the Episcopal Diocese of Virginia was much different. There a Fairfax County trial judge issued a letter opinion in litigation involving eleven break away Episcopal (now Anglican) congregations seeking to retain control of their church buildings and property. See In Re: Multi-Circuit Episcopal Church Property Litigation from Dec. 19, 2008. This opinion reaffirms prior holdings that the properties belong to the congregations, not to the Episcopal Church USA and the Diocese. Expect further litigation on this issue.

The current controversy over the role of gays in church and religion mirrors conflicts that churches in the past have managed to overcome. See the Los Angeles Times article Putting the Episcopal Rift in a Historical Context citing controversies such as those over slavery, the ordination of women and even the role of children in church life which have threatened the Church in the past.

For related reading, see SARA, the BLS Library catalog, for Church-State Relations in Crisis: Debating Neutrality edited by Stephen V. Monsma (Call # KF228.M568 C48 2002) a book of essays designed specifically for students of the law and religion and politics and a source for debate on the future of government and religion.

Bailout Explained

The BLS Library has acquired for its collection a new book published by CCH Emergency Economic Stabilization Act of 2008 (P.L. 110-343) as Signed by the President on October 3, 2008: Law, Explanation, and Analysis (Call # KF6276.62008 .A2 2008b). This item provides the complete text of added, amended, or repealed Code sections with controlling committee reports and CCH's explanation and analysis of tax provisions contained in the legislation. It also provides practical guidance of the impact of the law's changes, including how various taxpayer groups and situations are affected as well as sample client letters explaining the changes made by the law.


For a historical perspective on the bailout, see the post on Law Librarian Blog which links to a chronology of federal government bailouts since 1970 which ProPublic put together. The post traces a number of landmark bailouts including the 1970 Penn Railroad bailout and those involving Lockheed in 1971, Franklin National Bank in 1974, New York City in 1975, Chrysler in 1980, the Savings & Loan bailout of 1989 and the airline industry bailout of 2001. Of interest is how the Treasury did in the end after initial government outlays in each of these interventions. When the current credit crisis occurred in September 2008, the Wall Street Journal published an article titled Government Bailouts: A U.S. Tradition Dating to Hamilton with additional historical perspective on federal interventions showing that “in a panic or threatened financial collapse, governments intervene -- every government, every party, every country, every time."

Brooklyn Real Estate Developer Pardon Revoked

Article II, Section 2 of the U.S. Constitution says the President "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." A reprieve reduces the severity of a punishment without removing the guilt of the person reprieved. A pardon removes both punishment and guilt.

Historically, presidential pardons serve to heal and restore the nation, as when President Lincoln pardoned war deserters on the basis of their promise to return to their units to fight or when Gerald Ford pardoned Richard Nixon after his resignation in the Watergate scandal or when Jimmy Carter pardoned all Vietnam draft dodgers. The end of a President’s term is usually a time for the issuance of controversial pardons. At the end of his term, George H.W. Bush pardoned Caspar Weinberger and other officials caught up in the Iran-Contra scandal. Bill Clinton provoked controversy by pardoning Marc Rich, the fugitive financier whose ex-wife donated $450,000 to the Clinton Presidential Library. This year’s controversial pardon is George W. Bush's pardon of Brooklyn real estate developer, Isaac R. Toussie.

Bush’s issuance of the pardon to Toussie is controversial given the predatory mortgage lending practices for which Toussie was convicted. Toussie’s real estate dealings began in the 1970s, when he and his father. Robert I. Toussie, began buying thousands of parcels of land for development on Long Island, mostly in Suffolk County, including the famed 39-acre Chandler estate in Mount Sinai. He bought that parcel for $500,000 in 1997 and sold it to Suffolk County for $5 million three years later which triggered charges of collusion with two Suffolk County officials and investigations by the NY Attorney General and the federal government. In all, the Toussies developed more than 5,000 parcels of land on Long Island in towns like Amityville, Hauppauge, Port Jefferson Station, Bellport, Center Moriches, Mastic, Manorville and marketed them to poor, minority homebuyers from Brooklyn. The pardon clears Toussie’s 2003 guilty plea for mail fraud and lying to the Department of Housing and Urban Development where he admitted to falsifying finances of prospective homebuyers seeking HUD mortgages for which he was sentenced to 5 months in prison and 5 months of home detention and fined $10,000.

In addition to the criminal convictions, Toussie faces class actions involving charges of inflated prices and misleading advertising for some of the Long Island developments. The ads offered single-family detached homes with backyards on Long Island and townhouses on Staten Island for "only $1,000 down and $999 per month” and “includes home, land, principal and interest". Those ads are part of an ongoing class action suit by more than 400 families alleging that the Toussies deceived them into buying overpriced, badly built homes. A Presidential pardon would preclude testimony about Toussie's prior convictions in the civil case.

The controversy of the issuance of the pardon was compounded when it was discovered Toussie’s father had donated more than $28,000 to the Republican National Committee and $2,300 to John McCain’s presidential campaign this year. Based on this conflict, Bush is now attempting to revoke the pardon in what may be the first instance of a president’s withdrawing a pardon after it was announced.

There are a number of questions that will likely be the subject of future litigation. Why did Toussie fail to submit a detailed petition of reasoning complete with character references and a five year waiting period to Office of the Pardon Attorney? Was Toussie’s request for a waiver of the DOJ’s 5-year waiting period denied by the Office of the Pardon Attorney? Why did Toussie’s attorneys circumvent the Office of Pardon Attorney and submit a pardon application directly with the White House?

Rep. Jerrod Nadler (D-NY), whose district includes parts of Brooklyn and Manhattan, has introduced H.Res.1531 to reduce the President’s pardon power so that he cannot issue pardons to senior members of his administration during the final 90 days of his term of office. The proposal requires a constitutional amendment which is highly unlikely to succeed. Nadler’s resolution appears to be a political effort to stem abuse of the pardon power.

Statistics on presidential clemency actions by administration from 1945 to the present are available here from the website of the Office of Pardon Attorney. Pardon Power, a blog dedicated to news about presidential pardons and the pardon power (or clemency powers) in each state is also worth reading for more on this topic.