Comptroller Candidate Former BLS Professor

With most local political attention focused on Mayor Michael Bloomberg’s efforts to gain a third term as mayor of the City of New York, the fall ballot's two other citywide offices, Public Advocate and City Comptroller, remain largely under the radar. Current Comptroller William Thompson is not seeking re-election and is running against Mayor Michael Bloomberg so the Comptroller’s office is an open seat. The Comptroller is the city’s chief fiscal officer and chief auditing officer. September 15th is the date of the Primary Election. The four major candidates seeking the Democratic nomination for Comptroller are all current members of the City Council: Melinda Katz (District 29 – Queens), John Liu (District 20 – Queens), David I. Weprin (District 22 – Queens) and David Yassky (District 33 – Brooklyn).

Besides being the only Council member from Brooklyn, representing Brooklyn Heights, Greenpoint; parts of Williamsburg, Park Slope, and Boerum Hill, Yassky once was on the faculty of Brooklyn Law School teaching courses in Administrative Law, Constitutional Law, Criminal Law, and Federalism. Last week, WABC TV along with the League of Women Voters of the City of New York held the first of two debates among the candidates for Comptroller before the Primary Election. NY1 News will broadcast the second debate on Thursday, September 10 at 7pm. The first debate's video is here:

NY Federal Court Suit on Laptop Searches

Earlier BLS Library Blog posts here and here addressed the issue of searching travelers' laptop computers at airport security checkpoints. This week, the American Civil Liberties Union (whose President is BLS Professor of Law Susan N. Herman) issued a press release about its lawsuit against the Department of Homeland Security (DHS) over the issue which it filed this past Wednesday in the US District Court of the Southern District of New York. The suit seeks an Order directing the DHS to comply with the ACLU's Freedom of Information Act (FOIA) request for access to documents related to the US Customs and Border Protection (CBP) policy regarding laptop searches. The ACLU alleges that the laptop search policy violates travelers' Fourth Amendment protections against unreasonable searches and seizures because laptops are searched without "individualized suspicion" of wrongdoing.

The ACLU is seeking information related to the criteria for selecting who will be searched, how many searches have been conducted and what types of devices or documents CPB has retained. Last year when introducing the Travelers Privacy Protection Act in the 110th Congress, Sen. Russ Feingold (D-WI) criticized the CBP's warrantless searches and seizures of travelers' laptops and other digital devices at the US border, calling them an unacceptable invasion of privacy. That bill, which sought to require CPB agents to "have reasonable suspicion of illegal activity before searching the contents of laptops or other electronic devices carried by U.S. citizens and legal residents", died in committee in the last Congress.

In the current 111th Congress, the Senate Judiciary Committee addressed the issue at a hearing in May. DHS Secretary Janet Napolitano testified that her agency, which oversees Customs, would be revising its policy to address privacy concerns. She told the committee that the relatively low number of laptop searches has uncovered significant criminal activity and that the practice would continue. This video clip shows Sen. Feingold questioning Secretary Napolitano on border searches of laptop computers and other electronic devices without any suspicion of wrongdoing.



This week, the DHS Privacy Office released a Privacy Impact Assessment in connection with new CPB directives to enhance public understanding of the authorities, policies, procedures and controls employed by DHS during border searches.

SARA Library Catalog: New Book Lists

The BLS Library catalogers, Maria Okonska and Jeff Gabel, as part of their commitment to library patrons, periodically compile a new book list by subject. The new book list is accessible from SARA, the library’s public access catalog, using the link New Book Lists at the bottom of the page. The catalogers have also added to SARA a feature called Selected New Titles where library users can view images of book covers which link to the corresponding book record in the online catalog. As the law school moves to its new portal site, BLSConnect, the BLS library catalogers have now included the New Titles list there under the Library tab. Users of the portal can click on any book cover image to go to the corresponding book record in the library catalog.

One item of interest in the most recent new book list for August 13, 2009 is an appealing book in the ABA “little books of”series, The Little White Book of Baseball Law, by John H. Minan and Kevin Cole. This brief book is an enjoyable, short read that may be of interest to fans of America’s favorite past time as the major league season winds down. The book, divided into innings as opposed to chapters, discusses cases (with citations provided) relating to new stadium construction, ownership of baseball memorabilia, injured spectators, media contracts and even cases about rules of the game of baseball.

The publisher states that the book “is written in a short-story format with additional references to movies, songs, history, and other asides that will add to the reader's enjoyment.” For example, there is a reproduction of the indictment against Barry Bonds for steroid use included to stress the point that the market value of baseball memorabilia is tied to the reputation of the player to whom the memorabilia is related.

Another book from the series that is part of the BLS collection is The Little Red Book of Wine Law. A review of this book by Heather A. Phillips is available at the LLRX, the free Web journal dedicated to providing legal and library professionals with up-to-date information on Internet research, resources and tools. One additional book in the series that is not part of the BLS collection is The Little Green Book of Golf Law.

SEC Proposed Rule: Shareholder Nomination of Directors

Today’s Wall Street Journal has an article Fight Brews as Proxy-Access Nears. It is worth reading to contrast the reactions of companies, on the one hand, and shareholder activists, on the other, to a proposed SEC plan for greater accountability in corporate governance. Whether shareholders should be allowed to nominate and elect their own candidates as company directors is not a new topic. For some time, proponents of “shareholder democracy” have advocated more shareholder input in the nomination of directors. Typically, in large companies, the company management, not the shareholders, controls the nominating process, so that directors become loyal to the company and often lose sight of shareholder interests. If shareholders want to nominate their own candidate for the board of directors, they have to send separate ballots to all other shareholders at their own expense. Although obligated by law to provide shareholder lists, often company management makes that process as difficult as possible. As a result, when shareholders do nominate their own candidates as company directors, they often spend tens of thousands of dollars in a proxy battle to inform shareholders that there is a contested election.

In an effort to make companies more accountable and responsible to shareholders, the SEC voted earlier this year to enact a proposed rule change to the federal proxy rules that would permit shareholders to nominate directors as part of a corporation's annual proxy solicitation process. In explaining the need for the reform, the SEC cited the current economic crisis suggesting that the crisis has led many to raise serious concerns about the accountability and responsiveness of some companies and boards of directors to the interests of shareholders, and has resulted in a loss of investor confidence. Under the new rules, shareholders could also modify a company's nomination procedures or disclosure about elections, subject to applicable state law requirements.

There are certain complexities in the proposed rule change. For example, 14a-11 would allow large shareholders to include nominations in the company's proxy statement. The proposed change sets thresholds that would allow shareholders to organize and put together groups for submitting nominations to the board (1% for companies above $750 million; 3% for companies above $75 million; 5% for companies below $75 million) without triggering most of the requirements of the proxy rules.

For greater detail on the topic of the SEC’s access proposal, see several excellent postings in The Race to the Bottom that provides an analysis of laws and regulatory measures that govern today's corporations. One of those posts, Access and Its Opponents: An Overview, includes contrasting views by legal practitioners and the legal academy in submissions made during the recently ended comment period regarding the proposed rule change. The two comment of special interest are the one letter from seven large law firms that took the unusual step of submitting a joint letter opposing the idea; the other letter from 80 law professors, including BLS Law Professors James A. Fanto and Arthur r. Pinto, supported the SEC’s proposal.

Welcome 1Ls!

Welcome, Class of 2012 and Class of 2013! In the coming days, the reference librarians will host a series of library orientation sessions to help you navigate through your first year of law school. The reference librarians, the technical services librarians, the members of the acquisitions department along with the public service staff are all here to support you and answer any questions that you may have.

Much useful material is available online but also in print at the reference desk and at the circulation desk. One newly published journal that may be helpful is the latest edition of the Legal Reference Services Quarterly. Volume 28 Issues 1 & 2 (2009) is devoted to Teaching Legal Research Part I of II. The print version of Issue I is available at the circulation desk and has a very useful article for 1Ls: Best Practices: What First-Year Law Students Should Learn in a Legal Research Class by Nancy P. Johnson. The article has useful information about developing best practices in the legal research process, including a discussion of case law research and how to find cases online. It also discusses using citators not only as an updating tool but as a useful way to find relevant case law. Finally, it addresses the importance of using statutory research and administrative publications as well as secondary sources, such as law reviews, American Law Report annotations and the Restatements as part of an effective plan.

For online access, see the library database page at http://www.brooklaw.edu/librarylinks/dbjournals.php. The journal is listed alphabetically by title under Online Journals.

The reference librarians have developed several research guides using software created by LibGuides in order to help 1Ls and other law students in their law school careers. Of special interest to incoming students is 1L Resources, Tips and Tools which the reference librarians will feature during the 1L Library Orientation sessions during the next few weeks.

Brooklyn Publc Library: Tintin in Closet

The New York Times' City Room has an article about the Brooklyn Public Library removing from its open shelves a copy of Tintin au Congo written and illustrated by the Belgian writer and illustrator Hergé and first published in 1931. The cause: its illustrations of African natives in a racially insensitive way. The action comes in response to a patron complaint of "the art depiction of black people looking like monkeys" and led the library to keep the book in a collection that is kept under lock and key. To view the item, patrons must make an appointment days in advance. The Times article includes graphic samples from the work supporting that conclusion. Years after creating the work, Hergé stated that he regretted the presentation claiming that his editor pushed him to depict the glories of Belgian colonialism in Africa through the Tintin books.

The Times article cites other offensive titles that remain in the generally accessible collection, for example, Mein Kampf by Adolf Hitler, Tropic of Capricorn by Henry Miller, Beloved by Toni Morrison and Looking for Alaska by John Green. Brooklyn Public Library's book removal policy favors access to controversial materials but Tintin au Congo did not survive the process. The Times article is interesting to read to see how public libraries respond to complaints about controversial titles.

Controversy over Tintin has been around for years and will likely continue given the upcoming film version of the work by Steven Spielberg. Listen to leading British Tintinologist Michael Farr's interview in this two part video clip for more.

Credit Card Accountability Responsibility and Disclosure Act

On May 22, 2009, President Obama signed the Credit Card Accountability Responsibility and Disclosure Act of 2009 (Public Law 111-24, the Credit CARD Act) into law. The Credit CARD Act, which Congresswoman Carolyn Maloney of New York introduced as the “Credit Cardholders’ Bill of Rights” in January of this year, was intended to protect consumers from the credit card industry’s worst abuses. The new law has five Titles:

• Title I: Consumer Protection
• Title II: Enhanced Consumer Disclosures
• Title III: Protection of Young Consumers
• Title IV: Gift Cards
• Title V: Miscellaneous Provisions

Starting today, some consumer protections provisions in Title I go into effect. Among them is §101 which changes the amount of advance notice that card issuers are required to give card holders for rate increases and other changes. The section obligates creditors to provide at least 45 days notice before raising interest rates or making any other significant changes in the terms of customer accounts. In the past, card providers were required to give just 15 days notice.

Under §101 (b) (2), creditors may not change the terms governing repayment of an outstanding balances depending on whether the credit card account is a variable rate or a fixed-rate. The creditor is required by §101 (b) (3) to inform the cardholder of the right to cancel the credit card account before the rate increase takes effect. If the cardholder does cancel, payment of the outstanding balance is at the old rate — not the new, higher rate that the card company is assessing. Another additional change made by §106 (a) is that the creditor is required to send bills at least 21 days before a payment is due, up from 14 days prior to the new law.

Most of the Credit CARD Act’s other protections start in February, 2010 although a few — such as requiring cards to reduce interest rates for consumers with improving credit reports — will not be effective until Aug. 22, 2010. When all the provision of the new law are fully implemented, many of the worst abuses that credit card companies have relied such as double cycle billing, universal default and increasing rates on existing balances will be prohibited. The law does not allow for private enforcement although §511 authorizes a state, as parens patriae, to "bring a civil action on behalf of the residents of the State in an appropriate district court of the United States or other court of competent jurisdiction (A) to enjoin that practice; (B) to enforce compliance with the rule; (C) to obtain damages, restitution, or other compensation on behalf of residents of the State; or (D) to obtain penalties and relief provided by the Federal Trade Commission Act and such other relief as the court considers appropriate.”

Given the limited enforcement provisions, the new law's value in advancing consumer protection is open to question. Moreover, most cardholders have already begun to see higher interest rates as many credit card companies, in anticipation of the new law, have raised interest rates before the first changes took effect. At the same time, many consumers have seen their credit limits reduced before the law took effect.

One unexpected provision included in the Credit CARD Act of 2009 is in Title V, namely §512 titled Protecting Americans from Violent Crime and §512 (b) titled Protecting the Right of Individuals to Bear Arms in Units of the National Park System and the National Wildlife Refuge System.

Habeas Corpus Blog

BLS Adjunct Assistant Clinical Professor of Law Jonathan M. Kirschbaum began the Habeas Corpus Blog in April of 2009. Prof. Kirshchbaum is also a senior appellate counsel at the Center for Appellate Litigation ("CAL"), a private, non-profit organization that represents indigent criminal defendants in their appeals after conviction in state court in Bronx and New York Counties. Of interest to researchers practicing criminal law, the blog has a number of useful features including Habeas Corpus FAQs, a list of goals that the blog hopes to achieve and a list of Habeas Corpus Abbreviations.

One recent entry at the Habeas Corpus Blog reports that the US Court Of Appeals for the Second Circuit issued a Summary Order affirming a district court's grant of habeas in the case of Espinal v. Bennett, 09-0398-pr, on August 18, 2009. The issues raised in the habeas application were Ineffective Assistance of Counsel based on counsel's failure to investigate a police report which corroborated petitioner's claim that he was not at the scene of the crime. The court ruled that the error prejudiced the petitioner since it prevented counsel from discovering a potential alibi witness, whose testimony would have probably changed the outcome of the trial. The district court opinion in Espinal v. Bennett was written by Judge David G. Trager (former Dean at Brooklyn Law School from 1983-1993) and is available at 588 F.Supp.2d 388 (EDNY 2008). It was also reported in the NY Law Journal as a Decision of Interest.

One additional Brooklyn Law School connection in this case is that BLS Professor of Law William E. Hellerstein was Counsel on the case for petitioner before the Second Circuit.

Actual Innocence and Capital Punishment

In an unusual action taken during the summer recess when the Court does not take normally actions of this significance, the US Supreme Court ordered that the petition for a writ of habeas corpus in the case of In re Troy Anthony Davis, 08-1443, be transferred to the US District Court for the Southern District of Georgia for hearing and determination. The Court directed the District Court to receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence. Justice Stevens filed a concurring opinion joined by Justices Ginsburg and Breyer. Justice Scalia filed a dissenting opinion joined by Justice Thomas.

In seeking relief in the case, Davis’ lawyers told the Supreme Court that the new evidence, which they claim shows his innocence, was obtained only after the trial was over, as part of the preparation for a federal habeas case. The Supreme Court’s order does not determine whether the evidence was new, appearing to leave it to the District Court to make the initial judgment about that, as well as about whether any evidence the District Court determines is new shows, upon analysis, that he was innocent of the murder for which he faces the death penalty.

Justice Scalia stated at page 2 of his dissent that:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable. See Herrera v. Collins, 506 U. S. 390 (1993).

The case arises from a 1991 trail in Georgia state court where Davis was convicted in 1991 of murdering an off-duty Savannah police officer, Mark Allen MacPhail, in 1989. An article in last week's NY Times on the increase in dissents in death row habeas corpus cases under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) reported that Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the Davis' murder trial recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

The Davis case also has several other individuals implicating another man, Sylvester "Redd" Coles — the prosecution’s key witness against Davis — as the shooter. The facts of the Davis case make it one where the Supreme Court may rule favorably on the open issue of whether "actual innocence" can be the basis for granting a habeas corpus petition. Groups like Amnesty International USA and the NAACP have take a leading role in pursuing the issue of including actual innocence in death penalty appeals. Amnesty International's video on Davis is below

Americans with Disabilities Act: 19 Years Old

Last week marked the 19th anniversary of the signing of the Americans with Disabilities Act. On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act of 1990 issuing this Signing Statement. Since then, the act has brought about changes to public spaces and buildings making them more accessible to disabled persons. It also changed laws to require employers to make accommodations for workers who have special needs due to a disability.

To mark the anniversary, the US Department of Labor issued a news release announcing that it has re-named and re-launched DisabilityInfo.gov as Disability.gov. According to the release:

The site now offers comprehensive information about programs and services to better serve the more than 50 million Americans with disabilities, their family members, veterans, employers, educators, caregivers and anyone interested in disability-related information. The new Web site integrates content from 22 federal agencies and will be managed by the Labor Department. The former site was revamped with social media tools to encourage interaction and feedback, and new ways to organize, share and receive information. Visitors can sign up for personalized news and updates, participate in online discussions and suggest resources for the site. New features include a Twitter feed, Really Simple Syndication feeds, a blog, social bookmarking and a user-friendly way to obtain answers to questions on such topics as finding employment and job accommodations. Additional tools will be added during the months ahead.

The site is organized into 10 subject areas: benefits, civil rights, community life, education, emergency preparedness, employment, health, housing, technology and transportation. By selecting a category, visitors are directed to useful information on federal and state government programs and services, news and events, grants and funding opportunities, and more.

The BLS Library has a great deal of material on the Americans with Disabilities Act of 1990 which can be found in SARA, the library's online catalog. The most recent acquisitions is Reassignment Under the ADA: Must an Employer Hire a Minimally Qualified, Disabled Employee Over a More Qualified, Non-Disabled Applicant?: A Legal Research Guide by Amy R. Stein (Call #KF3469 .S75 2009). This volume is part of a series of Legal Research Guides published by William S. Hein & Co. and is described in a Hein release that lists other legal research guides published by Hein.

Another recent item in the BLS collection is Understanding the Americans with Disabilities Act by William D. Goren (Call #KF480 .G67 2006) with these chapters: Concepts underlying the ADA and key definitions -- Essential functions of the job -- Concept of undue hardship and reasonable accommodation in the employment context -- Treatment of alcoholics and drug addicts -- Preemployment medical exams/disability-related inquiries -- The ADA and health insurance -- ADA and the public sector (Title II) -- Places of public accommodations and commercial facilities -- The ADA and the health-care provider -- The interrelationship between the ADA and other laws -- Remedies and procedural issues -- ADA and sports -- Hot areas -- Are you ready to rock and roll with your ADA case?

Civil Contempt Confinement

This past month saw an interesting case involving a Pennsylvania lawyer who spent more than 14 years in jail on civil contempt charges in connection with divorce proceedings. The case stemmed from 1994 when a Delaware County judge held H. Beatty Chadwick in contempt for failing to put $2.5 million in a court-controlled account. Chadwick says he lost the money in bad investments. The attorney for his wife claimed he had hidden it offshore. In 1995, a Delaware County judge issued the order to jail Chadwick for failing to deposit the money in a court-controlled account to pay alimony to his ex-wife.

Fourteen years later, Judge Joseph P. Cronin, Jr. determined that Chadwick’s continued incarceration had lost its coercive effect and would not result in him turning over the money. Chadwick, now 73 years old, is believed to have served the longest imprisonment on a civil contempt charge in U.S. history.

The WSJ Law Blog has posted two articles on the topic of civil contempt confinement (Man Jailed On Civil Contempt Charges Freed After 14 Years and No Charge: In Civil-Contempt Cases, Jail Time Can Stretch On for Years) commenting that few argue that civil-contempt confinement should be abandoned altogether quoting Adam Winkler, a professor at UCLA law school: "The threat of jail is sometimes the only thing that will make a person comply with a court order." But critics do question why the burden rests with contemnors, such as Mr. Chadwick, to prove they don't have the money, rather than with a prosecutor to prove they do. Brooklyn Law School's Professor Jayne S. Ressler states: "It runs counter to our entire system to say 'It's your burden to prove a negative.'" Prof. Ressler is quoted in the Law Blog saying: "These results of too many civil-contempt confinements are flatly outrageous and often unconstitutional." Federal courts are bound by 18 U.S.C. Sec. 3331(a) so that a recalcitrant witness before a grand jury may be imprisoned for the term of the grand jury, which can be 36 months. Most states face few limitations on how long someone can be held in contempt and critics have called for reform.

Those interested in finding out more about civil contempt will benefit from reviewing the CALI Lesson entitled Contempt Overview by Professor of Law Elaine Shoben of the University of Nevada. CALI lessons are available by accessing the library’s database page where Computer Assisted Legal Research exercises can be downloaded from the CALI web site. Users must first obtain the password from the Law Librarians at the school in order to complete the exercises in any of the computer labs or anywhere off campus.