The United States: Singular or Plural

An article in the summer 2008 edition of the Green Bag entitled Supreme Court Usage and the Making of an 'Is' by Brooklyn Law School Professor Minor Myers is interesting reading on a fine point of grammar, namely whether the phrase "the United States" is a singular noun or a plural noun. Today, speakers and writers refer to the US in the singular sense rather than the plural. It may be that current usage is simply a reflection of a decline in grammatical standards. Otherwise one could speculate that contemorary usage is an unconscious move away from the federalist ideal of the Founders and an implicit endorsement of a unitary view of our government. Either way, the article is worth reading. Its abstract, posted this month on SSRN, says:

This survey examines use of the phrases “United States is” and “United States are” in opinions of the United States Supreme Court from 1790 to 1919. The familiar claim, popularized by Shelby Foote in the Ken Burns Civil War documentary, is that the Civil War marked a shift in usage from plural to singular. This survey demonstrates that in the Supreme Court this account of the timing of the change is not accurate. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely.

Prof. Myers teaches Corporate Law: Advanced Topics, Property and writes on corporate law and local government law, with his most recent scholarship addressing the decisions of corporate special litigation committees. Prof. Myers scholarship includes:

• The Decisions of Corporate Special Litigation Committees: An Empirical Investigation; A Redistributive Role for Local Government;
• The Judicial Service of Retired U.S. Supreme Court Justices; and
• Obstacles to Bargaining Between Local Governments: The Case of West Haven and Orange, Connecticut
  
  

BLS Library Lunch & Learn Workshops

The Brooklyn Law School Library held a series of Lunch & Learn Wednesday Workshops this past month primarily for 1Ls on basic legal research. The topics covered were the new term of the US Supreme Court, Case Law Research (link from the Brooklaw Library Weblog), Law Review Research, Statutory Research and Adminstrative Law Research. The slideshows from each session are posted on the new BLS Connect using the trail: Brooklyn Law School Portal > Library > Research Guides and Aids. Video of the Administrative Law Research session is here:

Dana Brakman Reiser - Charity Law’s Essentials

Brooklyn Law School Professor Dana Brakman Reiser posted her working paper on the essential characteristics of charity law on SSRN. The article is entitled Charity Law's Essentials.

Related to nonprofit organizations, the BLS Library recently added to its collection Starting and Managing a Nonprofit Organization: a Legal Guide by Bruce R. Hopkins (Call #KF1388 .H66 2009). The chapters of this book are: What is a nonprofit organization -- Starting a nonprofit organization -- Debunking some myths and misperceptions -- Nonprofit organizations : much more than charity -- Nonprofits and private benefit -- From nonprofit to tax-exempt -- Charities : public or private? -- Governance : board duties and liabilities -- Braving annual reporting -- Tax exemption : not a paperwork exemption -- Charitable giving rules -- Government regulation of fundraising -- Related or unrelated? -- Lobbying constraints - and taxes -- Political campaign activities - and more taxes -- Donor-advised funds, tax-shelters, insurance schemes - and still more taxes -- Subsidiaries : for-profit and nonprofit -- Joint venturing and other partnering -- Wonderful world of planned giving -- Putting ideas into action -- Watchdogs on the prowl -- Potpourri of policies and procedures -- Commerciality, competition, commensurateness -- IRS audits of nonprofit organizations -- Avoiding personal liability

Here is the abstract of Prof Reiser's article Charity Law's Essentials:

The boundary between charity and business has become a moving target. Social enterprises, philanthropy divisions of for-profit companies (most notably at Google), and legislation creating hybrid nonprofit/for-profit forms all use business models and practices to mold and pursue charitable objectives. This article asserts that charity law must be streamlined in order to respond to these and other dramatic charitable innovations. My new vision of charity law centers around two essential requirements. First, charity law must continue to demand that charities maintain an other-regarding orientation, pursuing benefits for someone other than their own leaders and managers. Second, existing charity law must be revised and supplemented to mandate that charities utilize group governance. Additionally, this dual focus should be intensified by removing the limits on commercial and political activity that currently clutter charity law. These reforms will enhance charity law's ability to regulate traditional charities. Moreover, focusing charity law on its essentials will reveal the tools necessary to respond to the exciting developments blurring the boundary between charity and business.

Legal Treatises by Subject

Law students do not have to reinvent the wheel when it comes to understanding legal topics they encounter in class. Secondary sources provide a great deal of research that will save a lot of time and effort. One of the best secondary sources is the legal treatise. Legal treatises provide an in-depth look at a particular subject. Students should become familiar with some of the major treatises in areas of law that they are researching. Recently ZiefBrief, the blog of the University of San Francisco's Law Library, provided some links to web pages listing treatises by subject. Here are some useful compilations of treatises by subject:

• Treatises and Services by Subject - Kent Olson
• Legal Treatises by Subject – Meg Krible’s libguide (Harvard Law Library)
• Georgetown Law Library Treatise Finder
• Pace Law Library's Subject Guide to Legal Treatises

SARA, the Brooklyn Law School Library’ catalog will help students find in its collection treatises both in print and online through Westlaw or LexisNexis. For example, 1Ls in the Criminal Law course, will find in SARA the treatise Wharton's Criminal Law (KF9219 .W48 1993) both in print in the Main collection and online through Westlaw (database identifier CRIMLAW). Wherever students find them, in most cases, treatises will help to get the research process started.

Transgender Hate Crimes

This month, several Brooklyn Law School student organizations including OutLaws, the National Lawyers Guild and BLSPI presented a panel discussion Transgender Hate Crimes: Victims, Their Families & Advocates Speak Out on transgender hate crimes. The session focused on members of the transgender community who face discrimination, harassment, abuse and violence and featured Leslie Mora and Carmella Etienne, both victims of hate crimes in two separate incidents in Queens, along with the family of Lateisha Green, a young African American woman from Syracuse who was shot to death in a car as she rode with her gay brother, who was wounded by the same gunman.

These cases demonstrate the potential for violence perpetrated against those who are singled out for attack because of their gender identity or expression. Michael Silverman, executive director of the Transgender Legal Defense and Education Fund, and Andy Marra, senior media strategist at the Gay and Lesbian Alliance Against Defamation (GLAAD), discussed the status of gender identity and expression in federal and state hate crimes law as well as strategies that transgender community members can use to educate the public through the media on issues of gender identity and expression.

Statistics from the National Coalition of Anti-Violence Programs show that murders of LGBT people in 2008 increased 28% from the previous year and that on average, a transgender person is murdered once a month in the United States. The NY Times has an article on the BLS panel discussion in an article that discussed the effort in the State Legislature to include gender identity in NY’s hate crime law. Previous effort to expand hate crime categories have failed to become law in NY. With these high-profile cases involving transgender victims, the outcome this year could be different, particularly as the USHouse of Representatives recently passed a measure expanding the definition of hate crimes under federal law to include a victim’s sexual orientation, gender identity or disability. See post dated Oct. 11. Furthermore, today the US Senate approved by a vote of 68-29 its companion bill on hate crimes legislation that was part of a $680 billion idefense spending bill.

The BLS Library has in its collection several items on the topic including Gay, Lesbian and Transgender Clients: a Lawyer's Guide by Joan M. Burda (Cal l # KF337.5.G38 B87 2008) with chapters that include: Representing lesbian, gay, and transgender clients -- LGT relationships -- LGT families -- Children -- Adoption -- Parenting rights -- LGBT students and schools -- Representing transgender/transsexual clients -- Lesbian, gay, and transgender elders -- Estate planning – Immigration.


The library collection also has Transgender Rights edited by Paisley Currah, et als. (Call # HQ77.9 .T716 2006) with chapters entitled Pursuing protection for transgender people through disability laws -- The evolution of employment discrimination protections for transgender people -- The rights of intersexed infants and children : decision of the Colombian Constitutional Court, Bogotá, Colombia, 12 May 1999 -- Do transsexuals dream of gay rights?: getting real about transgender inclusion -- Transgender communities of the United States in the late twentieth century -- Compliance is gendered: struggling for gender self-determination in a hostile economy -- Trans)sexual citizenship in contemporary Argentina / Reinscribing normality?: the law and politics of transgender marriage -- Afterword: Are transgender rights Inhuman rights?

International Law Weekend

The American Branch of the International Law Association (ABILA), with the International Law Students Association, will host International Law Weekend (ILW), as part of the 88th Annual Meeting of ABILA in New York City. The 2009 ILW theme is "Challenges to Transnational Governance." International Law Weekend 2009 will take place at the Association of the Bar of the City of New York (42 West 44th Street) on October 22, and at Fordham University School of Law (140 West 62nd Street) on October 23rd and 24th. ILW is free for students and members of ILSA. Online registration is closed on the ILSA web page. Interested students can register onsite at the upcoming ILS.

The two-and-a-half day conference will feature several discussion panels, speakers, and networking events for lawyers and students. Among the many sessions is one called Trade and Climate Change which Brooklyn Law School Professor Claire R. Kelly will chair. The panelists include Steve Charnovitz of George Washington University, Laura Campbell of Environmental Law International and attorney Gary N. Horlick. This session is described in the Full Conference Program: “The nexus of trade and climate change law is complex and convoluted. While some see WTO trade rules as a potential threat to efforts to address climate change, others argue that WTO rules will not threaten such efforts, and could be modified to enhance Members’ abilities to confront climate change. This panel will look at the judiciousness of modifying WTO rules in this context, as well as the prospects for a trade policy response to climate change given the current state of the Doha negotiating round.”

This is a great opportunity for BLS law students to join with hundreds of practitioners, members of the governmental and non-governmental sectors and other students. ILW begins Thursday evening, October 22, with a distinguished opening panel at the Association of the Bar of the City of New York, with a reception, open to conference attendees, to follow. More than 30 panels are scheduled for Friday, October 23 and Saturday, October 24 at Fordham University School of Law. A luncheon featuring distinguished guest speaker Lucy Reed, President of the American Society of International Law and partner at Freshfields Bruckhaus Deringer LLP, will also take place Friday, October 23 at Fordham School of Law.

Law School Rankings

Earlier this month, Brian Leiter's Law School Rankings posted the Ranking of Top 40 Law Schools by Student (Numerical) Quality 2009. Using a metric that averaged the 75th and 25th percentile of LSAT scores for the class that entered in fall 2008, the list ranks law schools and gives their average LSAT scores, the average of their 75th/25th Grade Point Average, their approximate class sizes (rounded to the nearest 50). Brooklyn Law School came in tied for number 39 with an average LSAT of 161.5 (compared to 173.0 for number 1 Harvard), a GPA average of 3.380 and a class of 500 that entered in fall 2008 (topped only by Georgetown with 600 and Harvard with 550).

The ranking does not measure other aspects of the student population that would be useful to know, such as the average age of the students, those who have advanced degrees, what kind of work experience they have and the cultural diversity of the entering class. It might also be useful to measure graduating students' starting salaries, placement rates, and bar exam pass rates as current rankings rely so much on reputation, admissions rates, LSAT scores, and GPAs. While law school rankings often lack real substance, they often do conform to the general reputation these law schools have among lawyers, law students and potential applicants.

National Bar Exam in the Future?

Law.com has posted an article entitled Uniform Bar Exam Inches Closer To Reality by Leigh Jones which says that at least 10 states are expected to switch to the so-called Uniform Bar Exam (UBE) and that 22 other jurisdictions may adopt the test in the next few years. Proponents of the UBE say that its use will standardize attorney licensing across the country and would provide financial relief for states by relieving them from having to create their own test questions. Historically, states have retained their own testing autonomy by developing their own exam questions and by using their own pass scores.

The Bar Examiner, the journal of the National Conference of Bar Examiners, has several prominent legal professionals writing Essays on a Uniform Bar Examination advocating the UBE in Volume 78, Number 1 from February 2009. Among them is Diane Bosse, chairwoman of the New York State Board of Law Examiners, who wrote: “The benefits the UBE can bring to the lawyer-licensing are clear; what has been uncertain is whether, in adopting a common set of test instruments, we would need to abandon our long-standing position that a person seeking to become a member of the bar in our state should be required to demonstrate competence in our state-specific law."

The UBE would have three components: the Multistate Bar Examination (MBE), the Multistate Performance Test (MPT), and the Multistate Essay Examination (MEE). Individual states would continue to perform their own grading. The Law.com article points out that the UBE still has hurdles to overcome as big states like New York, California, the District of Columbia, Florida, Illinois and Texas have yet agree to the idea. However, the article quotes John J. McAlary, executive director of the New York State Board of Law Examiners which administers some 15,000 bar examinations each year, as considering the uniform exam.

Hate Crimes Legislation

Jurist’s Paper Chase reports that the House of Representatives, by a vote of 281-146, passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (the federal hate crimes legislation) as part of the larger Defense Authorization Act of 2010 (it is at page 1471 of the 1515 page H.R. 2467) to address an issue that has been an unfortunate part of American history: crimes of hatred and prejudice that include lynching, cross burning and vandalism of synagogues. In 1990, Congress passed the Hate Crime Statistics Act of 1990, to collect data “about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” Since then, the FBI has published hate crime statistics every year. Reports for the years 1995 to 2007, available on the FBI website, breaks down hate crime statistics by type. The 2007 version reports 7,624 hate crime incidents involving 9,006 offenses from 2,025 law enforcement agencies. The 2008 report is due out this fall.

• Race – 4,724 offenses (Anti-White – 18.4 %, Anti-Black – 69.3 %, Anti-American Indian/Alaskan Native – 1.6%, Anti-Asian/Pacific Islander – 4.6 %)
• Religion – 1,477 offenses (Anti-Jewish – 68.4%, Anti-Catholic – 4.4%, Anti-Protestant – 4.0%, Anti-Islamic – 9.0%, Anti-Atheism/Agnosticism – 0.4%)
• Sexual Orientation – 1,460 offenses (Anti-Male Homosexual – 59.2%, Anti-Female Homosexual –12.6%, Anti-Heterosexual – 1.8%, Anti-Bisexual – 1.6%)
• Ethnicity/National Origin – 1,256 offenses (Anti-Hispanic – 61.7% and other – 38.3%)
  Disability – 82 offenses (Anti-Physical – 62 offenses and Anti-Mental – 20 offenses)

Passage of the Hate Crimes Prevention Act seems likely as in July the Senate passed a comparable bill (S.909) and President Obama has promised to sign the legislation into law. Besides questioning the inclusion of hate crimes legislation in an unrelated military appropriations bill, critics have raised First Amendment free speech and Fourteenth Amendment equal protection concerns as well as double jeopardy concerns. See for example Nat Hentoff’s article 'Thought Crimes' Bill Advances. The Assistant Attorney General Office of Legislative Affairs wrote a Memorandum Opinion that the Matthew Shepard Hate Crimes Prevention Act is constitutional.

The Brooklyn Law School Library’s collection has several items on hate crimes laws including Hate Crimes: a Reference Handbook by Donald Altschiller (Call #HV6773.52 .A47 2005) with chapters: History of hate crimes legislation -- Executive branch -- U.S. Supreme Court decisions -- Hate crimes legislation at the state level -- Critics of hate crime laws -- Recent hate crimes -- Some major targeted groups -- Hate crimes around the world -- Gays and lesbians -- Jews.

See also Scapegoats of September 11th: Hate Crimes & State Crimes in the War on Terror by Michael Welch (Call #HV6431 .W444 2006) including chapter titled Talking about terror -- Seeking a safer society -- Scapegoating and social insecurity -- Crusading against terror -- Hate crimes as backlash violence -- Profiling and detention in post-9/11 America -- State crimes in the war on terror -- Claiming effectiveness -- Assaulting civil liberties.

See also Violence, Prejudice and Sexuality by Stephen Tomsen (Call #HV6250.4.H66 T67 2009) with 'Homophobia' and the social context of sexual prejudice -- Violence and 'hate crime' -- Researching anti-homosexual killings -- Killings as 'hate crimes'? -- Male honour and the 'homosexual advance'.

Interviewing Tips for the Recession

With the current economic slowdown, recent legal periodical literature has articles helpful to law school students as they consider their future legal careers. The Fall 2009 edition of the American Lawyer Student Edition has an article by Tamara Loomis describing how the recession has changed large law firms with salary freezes and cuts, deferred start dates for first-year associates, and canceled or downsized summer programs. In reviewing how large law firms are responding to the recession, the article takes a look over the past period of unprecedented prosperity for the legal profession when law firm expenses rose by an average of 10.1 percent each year from 2000 to 2007. The article quotes Dean David Van Zandt of Northwestern Law School on how firms have now become choosier. "During the boom years, firms just needed bodies. Now firms are looking for students who not only can draft briefs and review documents but can also work well with clients and other lawyers." He goes on to say that firms are starting to look more closely at a candidate's basic project-management and communication skills.

This same point is made in another article by Debra Cassens Weiss in the ABA Journal which describes changes in interview techniques used by law firms with fewer job openings. The article says that more senior interviewers are using behavioral questions to learn more about students’ personalities. The interviews begin with question such as “Tell me about a time” or “Give me an example of a time." The article describes the techniques that law firms to identify four behavior patterns:

• Decision-making and problem-solving skills. An interviewer might ask: Tell me about a difficult decision you had to make.
• Motivation. An interviewer might ask: Tell me about a time when you failed to meet expectations.
• Communication and interpersonal skills. An interviewer might ask: Describe an unpopular decision you made and how you dealt with the aftermath.
• Planning and organization. An interviewer might ask: Tell me about a time when you were too busy and had to prioritize your tasks.

The ABA article refers to a 2005 article published by the National Association for Law Placement in the NALP Bulletin. In particular, it helps students familiarize themselves with the purpose of —and how to prepare for—the “behavioral interview.” Students are advised to engage in significant introspection so that they understand such things as why they have made the life decisions they have made (this reflects their values, talents, and motivation); and how to provide specific examples of behavior that demonstrates they have the proficiencies and traits an employer seeks. The STAR method will help students keep their answers concise and specific. It entails briefly describe the Situation or Task; explaining the Action that he or she took and describing the Results of the action. The reprint which is worth reading.

Brooklyn Law School's On-Campus Interviewing (OCI) Program has a number of videos that are accessible through SARA the online catalog including among others Student Advice about OCI Interviewing 08.

Law School Labyrinth

The Oxford English Dictionary, available at Brooklyn Law School in eleven print volumes in the National Reading Room on the 2d floor of the BLS Library and online on the Library database page, gives the figurative defintion of "labyrinth" as a "tortuous, entangled, or inextricable condition of things, events, ideas, etc.; an entanglement, maze". That meaning of the word may well describe what many 1Ls and upperclass members feel as they work through their law school careers. To help them, the BLS Library recently added to its collection Law School Labyrinth by Steven R. Sedberry (Call #KF283 .S43 2009). The eight chapters in this easy to read book are: Lesson from the labyrinth, or how I learned to stop worrying and start booking classes -- The money minotaur: keeping law school costs at bay -- How to hit the ground running your first day as a 1L -- Your law school study approach -- How to prepare for final exams -- Summer clerkships -- Your second and third years -- The bar exam and beyond.

For students who are feeling overwhelmed, this is an excellent guide and a good analysis of law school with some good tricks to succeed in law school. The book has useful tips on how to avoid spending precious time on the conventional competitive aspects of law school and more on what matters such as doing well on tests, the bar, and being a good lawyer. The book offers a study method that attempts to level the playing field even for those students who are intimidated by larger personalities. It has interesting anecdotal examples that bring down to earth the people, teachers and tests and scores that law students encounter during their academic years.

Chapter 1 sets the tone with five highly readable Lessons on navigating the labyrinth and some Fatal False Turns that are well worth reading. Sedberry defends the often criticized Socratic method in his Lesson #4: Law School Can Actually Help You to Become an Effective Lawyer.

Chapter 3 “How to Hit the Ground Running Your First Day as a 1L” explains what the Socratic Method is and offers reasons to embrace it rather than fear it. Sedberry impresses upon readers the absolute critical importance of those first-year grades and states that first-year grades determine who gets chosen for law review, moot court, and even summer clerkships.

Chapters 4 “Your Law School Study Approach”and Chapter 5 “How to Prepare for Final Exams” may be the most useful for law students as they explain law school study approaches and the once-a-semester exams. Sedberry explains the bell curve to students wondering why they did not get an "A", offering useful tips to ensure placement at the top of that bell curve. Law students are accustomed to achieving high marks and turning in competent academic work. So competition for "A"s is high and students must push themselves differently than they did in their undergraduate schools. Students will benefit from reading the rest of the book.

The above comments are excerpted from Sami Hartsfield's book review in the September 30 edition of the Houston Legal Issues Examiner.

Legislative History Help from LLSDC

Researchers at Brooklyn Law School can benefit from the very useful Legislative Source Book published by the Law Librarians' Society of Washington, D.C. (LLSDC) which recently added a webpage on Federal Equal Employment Opportunity Laws, Cases and Resources. The page links to Federal EEO laws, a number of related CRS reports, Federal agency resources, non-governmental resources, and US court opinions.

The Source Book has other links that will help researchers including a multi-part Federal Legislative History Research: A Practitioner's Guide to Compiling the Documents and Sifting for Legislative Intent. The guide explains what Federal legislative histories are and how they are used, discusses the Federal legislative process and legislative history documents, directs researchers on finding already compiled Federal legislative histories, explains the process of compiling a Federal legislative history in paper format and electronically and from older records. There is also a section on sifting for legislative intent language in a Federal legislative history as well as links to other Federal legislative history web sites. Another valuable resource in the LLSDC Source Book is Legislative Histories of Selected U.S. Laws on the Internet which organizes its material by Popular Name Listing, Public Law Number Listing, and Commercial Legislative Histories on the Internet (those of Westlaw, LexisNexis and HeinOnline).

The BLS Library has in its collection Reference Librarian Joseph Gerken’s book What Good is Legislative History? Justice Scalia in the Federal Courts of Appeals (Call #KF425 .G47 2007). Justice Scalia is an outspoken critic of legislative history. The book analyzes more than 250 Circuit Court decisions that refer to Justice Scalia's criticism of legislative history. It covers Scalia's preference for textualism rather than relying on material he considers unreliable for interpreting laws. It has chapters on the history of legislative history and the evolution of the Supreme Court's attitude toward its use.

To help researchers looking for New York legislative history materials, the BLS Library catalog links to an electronic resource from the New York State Library called Legislative Intent in New York State: Materials, Cases and Annotated Bibliography by Robert Allan Carter (KFN5074 .C37 2001). The link leads to a page that was last updated on June 22, 2009 and has a New York State Legislative History Research Tutorial.