The Legal Workshop

A new website, The Legal Workshop, provides plain language summaries of articles published by member journals. The mission of the site is to feature “op-ed” versions of the articles published in the member journals. The concise summaries are written for a generalist audience and combine the best elements of print and online publication.

The site states that each Legal Workshop Editorial undergoes rigorous editorial treatment and quality screening and that readers can offer comments. Academics can submit response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.

Currently member journals include

• Cornell Law Review
• Duke Law Journal
• Georgetown Law Journal
• New York University Law Review
• Northwestern University Law Review
• Stanford Law Review
• University of Chicago Law Review

Episode 042 - Conversation with Professor of Law William D. Araiza

Episode 042 - Conversation with Professor of Law William D. Araiza.mp3

In this pod cast, BLS Professor of Law William D. Araiza discusses the recent California Supreme Court decision in Strauss v. Horton upholding Proposition 8 and its impact on the ongoing debate over same-sex marriage. Throughout the conversation, Prof. Araiza, who recently joined the BLS faculty in January 2009 from Loyola Law School Los Angeles, refers to his October 2008 Review Essay: Four Books on Gay Rights and Same-Sex Marriage where he reviewed four books dealing with the complexities raised in the same-sex marriage debate. Publication in the Journal of the History of Sexuality is expected in 2010. Among the titles of the books included in Prof. Araiza's review are:

The Long Arc of Justice: Lesbian and Gay Marriage, Equality, and Rights by Richard D. Mohr (Call #HQ76.3.U5 M643 2005)

Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence by William N. Eskridge, Jr. & Darren R. Spedale (Call #K699 .E85 2006)

These two books are part of the BLS library collection and are of interest from an argumentation perspective on the topic of same-sex marriage. As the review points out, the 142 page Mohr book is an effort “to engage in a non-academic discussion of the role of gays and lesbians in contemporary American society” while the more substantial 336 page Eskridge book examines “examines the empirical evidence of the effects same-sex union rights have had on Scandinavian nations that pioneered legal status for same-sex unions, starting with Denmark in 1989 and continuing with the rest of Scandinavia through the 1990’s”. To download a copy of Prof. Araiza's Review Essay: Four Books on Gay Rights and Same-Sex Marriage, see his Selected Works page which has links to his other scholarship.

Same-Sex Marriage and Unequal Protection in California

In the latest legal development over marriage rights for same sex couples, the California Supreme Court ruling in Strauss v. Horton raises some interesting equal protection issues. The 136-page majority opinion devoted a great deal of discussion to what the Court ruled in the Marriage Cases last May, namely that same-sex couples enjoy the same rights afforded by the state constitutional right to marry as opposite-sex couples.

The Court then shifted its focus to the impact of Proposition 8 passed by California voters last November which added the language to the California Constitution that “Only marriage between a man and a woman is valid or recognized in California.” The 6-1 decision ruled that Proposition 8 was legal. However, the Court ruled that the marriages performed between the court’s previous ruling in May 2008 that same sex marriage was legal and the passage of Proposition 8 in November 2008 were still valid. See pages 128-135 of the Court’s decision for its discussion of retroactivity which let the existing marriages stand. The number of such marriages is estimated to be about 18,000 according a New York Times article.

Ultimately, the Court avoided the issue of separate and not equal regimes for straight and gay couples seeking state recognition of their relationships. Straight people get marriage, gay people get civil unions. Such a dual regime raises serious equal protection issues particularly in light of the Court decision from one year ago in the Marriage Cases which ruled that all Californians are entitled to state recognition of “two adults who share a loving relationship to join together to establish an officially recognized family of their own.” The dissenting opinion of Judge Moreno states the issue clearly when he writes “Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their ‘officially recognized, and protected family relationship’ (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment.”

Sotomayor, with BLS Honorary Doctor of Laws Degree, to US Supreme Court

The Supreme Court may soon have an honorary Brooklyn Law School Doctor of Laws degree holder now that President Obama has nominated Judge Sonia Sotomayor of the Second Circuit Court of Appeals to replace Justice David Souter. In 2001, Dean Joan G. Wexler presented Judge Sotomayor with an honorary Doctor of Laws degree before the 454 graduates and the entire BLS community at Avery Fisher Hall at Lincoln Center when Judge Sotomayor delivered the commencement address at Brooklyn Law School’s Centennial Commencement. Championing the value of pro bono work, Judge Sotomayor encouraged the graduates to dedicate part of their careers to public interest law.

Before serving on the Second Circuit bench, Judge Sotomayor served as US District Judge for the Southern District of New York after President George H.W. Bush appointed her in 1992, making her the first Hispanic woman to serve on the federal bench.

Her personal story is a compelling one that offers encouragement and inspiration to aspiring young lawyers. Born in the South Bronx, she was raised in a housing project by her parents who came to New York from Puerto Rico during World War II when her mother served as part of the Women's Army Corps. Her father was a factory worker with a 3rd-grade education who did not speak English. He passed away when his daughter was nine. Her mother worked six days a week as a nurse to provide for her children. With the support of family, friends, and teachers, Sonia earned scholarships to Princeton, where she graduated at the top of her class, and Yale Law School, where she was an editor of the Yale Law Journal.

The confirmation process will likely see intense scrutiny of Judge Sotomayor’s judicial record. For a review of her record while on the Second Circuit Court of Appeals, read the four-part summary of Judge Sotomayor’s opinions in civil cases at Scotusblog here, here, here and here. Opponents of her nomination will likely point to Sototmayor’s concurrence in Ricci v. DeStefano, 530 F.3d 88, the case involving a suit by white and Hispanic firefighters passed over for promotion when the City of New Haven declined to implement the results of a promotion test upon which black firefighters performed disproportionately poorly. A decision by the Supreme Court on its grant of certiorari in the Ricci case is expected soon.

However the argument over Sotomayor’s judicial record unfolds, it is her personal story and character that will likely be the most decisive factor in determining whether the Supreme Court can count a BLS honorary Doctor of Laws degree recipient among its members. The Law School Admission Council, a nonprofit corporation providing admission-related services for legal education institutions and their applicants throughout the world has a video discussing her story as part of their "Believe and Achieve: Latinos and the Law" program that is worth watching.

ASPIRE: Help for Law Grads with Deferred Careers

Today's Law Librarian Blog reports that LexisNexis is offering a helpful program for law school grads who have accepted Associate positions at law firms but who are experiencing a deferred fall 2009 start date and taking on public interest work during their deferral period.

The LexisNexis’ ASPIRE Program offers:

• Free access to a LexisNexis menu consisting of federal and state case-law, codes, regulations and law reviews.
• The Martindale-Hubbell Career Center which provides access to non-profit interest and pro-bono job opportunities.
• Online training and materials to be better equipped for public interest work.
• Non-profit companies can post job opportunities for free on the site.

ASPIRE Program details. Qualifying students can register here.

Wrongful Conviction and Redemption

Included in the BLS Library’s most recent New Book List is an intriguing title, Picking Cotton: Our Memoir of Injustice and Redemption by Jennifer Thompson-Cannino and Ronald Cotton (Call #HV6568.B87 T56 2009). The book summary states that it is the story behind the unlikely friendship which developed between the accused rapist Ronald Cotton, who served eleven years in prison for a crime he didn't commit, and his accuser, Jennifer Thompson, raped at knifepoint by a man who broke into her apartment while she slept.

The web site for the book has information about the authors, upcoming news and events and links to the case file including the full Motion for Appropriate Relief for those interested in procedural issues related to wrongful convictions. There is also a trailer posted on the site which is embedded below.

Commencement Speakers at NY Area Law Schools

For those who like lists, here is one of the commencement speakers for the New York tri-state metropolitan area:

New York

• Brooklyn Law School — Paul Volcker, Chair of the President's Economic Recovery Advisory Board
• Benjamin N. Cardozo School of Law — Rosalie Abella, Justice of the Supreme Court of Canada
• Columbia Law School — Gray Davis, Former Governor of California
• CUNY School of Law at Queens College — Margaret E. Montoya, Professor of Law, University of New Mexico Law School
• Fordham University School of Law — Joel Klein, New York City Schools Chancellor
• Hofstra University School of Law — Wallace B. Jefferson, Chief Justice of the Texas Supreme Court
• New York Law School — Gregory H. Williams, President of City College of New York
• New York University School of Law — Zalmay Khalilzad, former US Ambassador to the United Nations (law school convocation speaker; Hillary Clinton, US Secretary of State, is the commencement speaker for New York University)
• Pace University School of Law — Nina Totenberg, NPR correspondent
• St. John's University School of Law — Dennis Jacobs, Chief Judge of the US Court of Appeals for the Second Circuit
• Touro College Law Center — Charles J. Hynes, Kings County District Attorney and Adjunct Professor of Law, Brooklyn Law School

New Jersey

• Rutgers University School of Law at Camden — Hon. Wilma B. Liebman, Chair, National Labor Relations Board
• Rutgers University School of Law at Newark — Judge Freda Wolfson of the US District Court of New Jersey
• Seton Hall University School of Law — Judge Michael A. Chagares of the US Court of Appeals for the Third Circuit

Connecticut

• University of Connecticut School of Law — Sheila C. Bair, Chair of the Federal Deposit Insurance Corporation
• Quinnipiac University School of Law — Mark Kravitz, Judge of the United States District Court for the District of Connecticut
  Yale University Law School — no information

The list of greater New York metropolitan area law school commencement speakers would not be complete this year without including Drexel University Earle Mack School of Law, the nation's newest law school located in nearby Philadelphia. Drexel received provisional ABA approval in 2008.

• Drexel Law School — Rudy Giuliani, Former Mayor of the City of New York

Controversies in Corporate Law

Ronald Colombo, Visiting Associate Professor of Law at BLS for the spring 2009 semesterm recently shared some thoughts on a new seminar at BLS "Controversies in Corporate Law" that he taught this past semester. The comments, The Christian Entrepreneur, were posted on the Conglomerate, a blog whose mission statement promises a "quirky mix of entries about business, law, Wisconsin, legal education, and whatever else” strikes the fancy of the Conglomerate bloggers. Prof. Colombo referred to the students in his class in response to an earlier post on Conglomerate entitled What is a Christian Perspective on Corporate Law? That earlier blog posed four questions:

• Is a Christian perspective on corporate law one of many possible true perspectives, or is it, in the end, the only way to ground a theory of corporations and corporate regulation? Similarly, is there likely to be a single Christian perspective?
• How does one construct a Christian theory of corporate law?
• How is a Christian perspective on corporate law different from communitarian theories of corporate law?
• What is the audience of a Christian perspective on corporate law?

Citing his experience teaching at BLS, Prof. Colombo noted that that when covering the issue of "Religion and the Corporation” in the seminar, his students reached a consensus that corporations should generally not adopt religious missions, and that those which did adopt such missions should certainly not enjoy anything analogous to the "free exercise rights" that individuals enjoy under the U.S. Constitution. He states “Corporations were seen as simply different -- too powerful, too large, and too privileged under the law to permit a religious mission on their part.” Prof. Colombo observes that, in the legal profession and society at large, there is some antipathy towards all things associated with religion these days even though religion may offer helpful insights in corporate law.

Prof. Colombo has been visiting BLS from Hofstra University, where he has been a faculty member since 2006.

Justice David H. Souter

In the almost twenty years that David Souter served on the US Supreme Court, the refrain about his jurisprudence concerns his shift from a conservative jurist to a liberal one. In 1992, Justice Souter disappointed conservatives with his roles in two cases: the plurality opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), upholding the central ruling in Roe v. Wade, and the 5-4 opinion in Lee v. Weisman, 505 U.S. 577 (1992), voting against allowing prayer at a high school graduation ceremony. And in 2000, when Justice Souter dissented in Bush v. Gore, 531 U.S. 98 (2000), to allow the presidential election recount to continue, observers of the Court placed him in the liberal wing of the Court.

But Justice Souter’s tenure on the Court is of course far more nuanced. He has written 156 majority opinions for the Court. Some are worth noting. In the area of constitutional law, his opinion in McCreary County v. ACLU, 545 U.S. 844 (2005), ruling that government-sponsored displays of the Ten Commandments in county courthouses is unconstitutional under the Establishment Clause, is seen as a victory for the separation of Church and State. His opinion for a unanimous Court in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) held that government cannot require the organizers of a private parade to include a group with whose message they disagree. That opinion is cited as a landmark case on the right of speech and association but viewed as a setback for gay rights. Yet he joined the majority opinion ruling unconstitutional under the Due Process Clause a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct in Lawrence v. Kansas, 539 U.S. 558 (2003). Yet as to free speech, Justice Souter’s views did not preclude his opinions upholding campaign finance regulation, in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001) and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000).

Some of Justice Souter’s rulings profoundly impact technology. In his landmark opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), he addressed copyright law; and his opinion in Verizon Comms. v. FCC, 535 U.S. 467 (2002) will play a central role in telecommunications regulation. His opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), addressed a critical question of procedure and is a major ruling on the obligation to set forth detailed allegations in a complaint.

Justice Souter’s 123 dissenting opinions disclose his leading role, particularly on the liberal wing of the Court. In his dissent in Kansas v. Marsh, 548 U.S. 163 (2006), he voiced strong concerns about the death penalty where there was evidence that wrongly convicted individuals were being executed. In the current term, he wrote the lead dissent in the Court’s most contested cases. His dissent in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009) challenged Justice Thomas’ opinion upholding a mandatory arbitration provision included in a collective bargaining agreement. In Bartlett v. Strickland, 129 S. Ct. 1231 (2009), Justice Souter’s dissent voiced strong support for a remedy under Section 2 of the Voting Rights Act of 1965 where there was evidence of voter dilution of racial minorities in a voting district. In his dissent in Waddington v. Sarausad, 129 S. Ct. 823 (2009), Justice Souter differed from Justice Thomas’ majority opinion limiting the authority of federal courts in habeas corpus petitions to review the decisions of state courts on instructions given to juries on an accomplice’s role in a crime.

The NY Times has a more detailed analysis of Justice Souter’s legacy in The Judgment on Justice Souter with the thoughts of nine prominent legal scholars.

For additional reading on Justice Souter, the BLS Library has in its collection David Hackett Souter: Traditional Republican on the Rehnquist Court by Tinsley E. Yarbrough (Call #KF8745.S68 Y37 2005).

Law Day 2009

This Law Day provides an opportunity to celebrate the contributions to the rule of law made by members of the New York bar who have worked at pro bono efforts on behalf of those in need. The New York State Bar Association issued a press release announcing its annual Pro Bono Awards honoring lawyers, law firms and law students who provided free legal services to the poor. The award is given to convey a message about the importance of helping to provide all New Yorkers, regardless of income, with equal access to the justice system. The awards are to be presented today at the State Bar Center in Albany.

Among the honorees is the New York law firm of Kaye Scholer LLP, which was selected to receive the prestigious Pro Bono Award in the Large Law Firm category. The firm, with more than a dozen alumni from Brooklyn Law School, was recognized for the 27,115 hours of pro bono work, averaging 79 hours per attorney. The matters handled covered a broad range of practice areas, from successfully convincing the Governor of Virginia to commute the death sentence of a mentally incompetent client one day before he was to be put to death, to petitions for Holocaust survivors seeking pension funds from the German government for work performed in ghettos, to political asylum applications for immigrant victims of torture and persecution.

With the debate about the legality of torture, it is gratifying to see members of the bar address the issue in a manner that merits the awarding of an honor rather than the prospect of prosecution. On this Law Day, the legal community has much to debate about the legality of torture. The BLS Library collection of material on this topic includes:

Why Not Torture Terrorists?: Moral, Practical, and Legal Aspects of the “Ticking Bomb”' Justification For Torture by Yuval Ginbar (Call #K5256 .G56 2008)

The United Nations Convention Against Torture: a Commentary by Manfred Nowak (Call #K5304.A41984 N69 2008)

A Question of Torture: CIA interrogation, from the Cold War to the War on Terror by Alfred W. McCoy (Call #HV8599.U6 M33 2006)

The Torture Debate in America edited by Karen J. Greenberg (Call #JC599.U5 T665 2006)