Friday, July 31, 2009
The ruling stems from a Cape May County case in which P.M.P., a 20-year-old man, waived his Miranda rights to remain silent and be represented by an attorney and confessed to a sexual assault without a lawyer present. The charges stemmed from a complaint filed in 2008 alleging that he had sex in 2003 with a Cape May County girl who was either 6 or 7 years old at the time when the defendant was either 13 or 14 years old. Because the incident occurred when the defenant was a minor, he was charged as a juvenile. After a judge signed the complaint and he was arrested, P.M.P. waived his Miranda rights and admitted having sex with the girl.
A Cape May County Superior Court Judge granted P.M.P.'s motion to suppress the statement. On appeal, the Appellate Division reversed in State in the Interest of P.M.P. 404 NJ Super. 69 (App. Div. 2008), saying that the different goals of the juvenile justice system and the adult system precluded having a juvenile complaint being treated like an adult indictment. The appellate court concluded that a juvenile delinquency complaint, filed at the direction of a county prosecutor's office, is not the substantial equivalent of an indictment such that it initiates a formal adversarial proceeding and triggers a juvenile's right to counsel. The NJ Supreme Court decision reverses the Appellate Division decision meaning that Cape May County prosecutors may not use statements made by the defendant. The Court effectively expanded its holding in State v. Sanchez, 129 N.J. 261 (1992), which held that after an indictment, an adult defendant cannot waive the right to counsel without the approval of the attorney. The Supreme Court stated in Sanchez: “As a general rule, after an indictment and before arraignment, prosecutors or their representatives should not initiate a conversation with defendants without the consent of defense counsel.” The rule in Sanchez now applies to juveniles as well as adults.
In dissent, Justice Roberto Rivera-Soto, joined by Justice Helen Hoens, said juvenile proceedings are not criminal prosecutions but exercises of the state's parens patrie jurisdiction and are protective, not punitive. Rivera-Soto called the majority's approach "nothing more than the mixing of one's legal apples and oranges" and said "granting this adult defendant a newly found protection to which he otherwise would not be entitled solely because he committed his offenses while still a juvenile defies basic common sense."
Thursday, July 30, 2009
Another event at the conference was the awarding of Schaffer Grant for Foreign Law Librarians by the Foreign, Comparative and International Law Special Interest Section. This year's grantee was Ahmadullah Masoud, reference librarian at the Independent National Legal Training Center (INLTC) Law Library in Kabul Afghanistan. Masoud’s primary reference responsibilities range from providing patrons with print and electronic reference assistance to designing a formal legal research curriculum and training materials for Afghan and U.S. Military attorneys, judges, professors and INLTC students (future judges, prosecutors, and attorneys). The INLTC library is the only law library in Afghanistan. Until recently the USAID Afghanistan Rule of Law Project (ARoLP) provided funding to operate the library. At this time the work on the INLTC law library continues, however, similar developments at the Supreme Court law library have been suspended due to a lack of ARoLP funding.
While at the AALL conference, Masoud and Andrea Muto of the U.S. Agency for International Development (USAID) presented a slide show called the Past, Present, and Future of the Law Library and Librarianship in Afghanistan: The Challenges and Rewards of Building a Library after 30 Years of War to demonstrate the practical and technical challenges facing the INTLC. See the slide below along with a brief video introducing Masoud and Andrea.
Thursday, July 23, 2009
In this pod cast, BLS Professor of Law Miriam H. Baer discusses entity liability for corporate crime. Prof. Baer has lately been a guest contributor to PrawfsBlog where she wrote an entry about deferred prosecution agreements (DPAs) and the problems that arise in the prosecution of corporate entities. In the blog entry, Prof. Baer refers to her article Insuring Corporate Crime, 83 Ind. L.J. (2008). There, she proposed the abolition of entity-wide criminal liability. She suggested in its place the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks.
In this podcast, Prof. Baer discusses her article as well as some of the problems posed by deferred prosecution agreements. She cites the prosecution of Bristol Meyers Squib in New Jersey where the presence of a settlement agreement may have sent mixed signals to investors, the corporate board and the public. Prof. Baer cites the case as an example of the problems that arise when prosecutors interfere in the internal affairs of corporations with DPAs.
Prof. Baer teaches courses at BLS in Criminal Law, Criminal Procedure I, and Corporations. She served formerly at New York University School of Law's Lawyering Program and as an assistant general counsel for compliance with Verizon and an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney's Office, Southern District of New York. Her scholarly publications are available on her Selected Works page.
Wednesday, July 22, 2009
Justice Kennedy majority opinion held that a complaint must contain sufficient facts to form a plausible cause of action and that a judge may utilize common sense to determine if this is the case. It held that broad legal conclusions, with no factual support in the pleading, may not afford a sufficient basis for sustaining the cause of action. Rather than accepting the plaintiff's allegations as true in Iqbal, the Court created and interposed its own "likely explanations" between the plaintiff's factual allegations and its legal conclusions. Instead of accepting Iqbal's allegations that the defendants detained him on account of his race, religion, or national origin in violation of his First and Fifth Amendment rights, the Court wrote on page 18 of his opinion:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.As Liptak’s article reports, lower courts have cited Iqbal often in the last two months. Running a Westlaw KeyCite check of the case this morning shows 566 citations to it by other courts.The broad roadmap laid out in Iqbal to assess the merits of a complaint may well give lower courts broad latitude to interpose their own explanations and defenses when assessing the sufficiency of a complaint in light of a motion to dismiss under Rule 8. As a result, Iqbal may become the defense bar’s best weapon. For more, see the WSJ Law Blog article Why Defense Lawyers Are Lovin’ the Iqbal Decision. Whether or not Iqbal signals the end of “notice pleading”, it is important that practitioners remember that better practice requires them to draft more specific pleading.
Monday, July 20, 2009
Pressure is now mounting on other fronts to lift the embargo on trade with and travel to Cuba. In the US Congress, legislators have introduced bills aimed at the Cuba trade embargo. In January, Rep. Jose E. Serrano [NY-16] introduced H.R. 188 to lift the trade embargo on Cuba. Both the US Senate and House have pending bills entitled the Freedom to Travel to Cuba Act. In February, Sen. Byron L. Dorgan (ND) introduced the Senate version, S.428 and Rep. William D. Delahunt [MA-10] introduced the House version, H.R.874.
And now, in Brooklyn, in the US District Court for the Eastern District, there is pending a lawsuit challenging US policy over trips to Cuba by American citizens. That policy, enforced by the Treasury Department’s Office of Foreign Assets Control (OFAC), requires people suspected of travelling to Cuba to disclose detailed information about money spent during their travel under threat of civil penalties and imprisonment. Americans suspected of traveling to Cuba without official approval can be ordered to disclose how much money they spent there. The lawsuit says the policy forces travelers to incriminate themselves, since by complying you are admitting you broke the law which makes it illegal to spend US currency in Cuba. The complaint was filed in U.S. District Court in Brooklyn by the Center for Constitutional Rights, a non-profit legal advocacy group. Click here for the complaint.
The plaintiff in the lawsuit is Zachary Sanders, a Brooklyn resident and New York attorney who travelled three times to Cuba from 1998 to 2001. In 2000, OFAC directed that he answer its “Requirement to Furnish Information” about his travels. Sanders refused to answer and challenged the legality of OFAC’s actions in administrative proceedings. An administrative law judge rejected Mr. Sanders’ claims and ordered him to pay a $1,000 fine, not for traveling to Cuba, but for failing to comply with OFAC’s demand for information. Sanders appealed the fine in 2008, and the Department of Treasury then increased the fine to $9,000.
Paragraph 10 in the Preliminary Statement of the complaint states: ”The penalty imposed against Mr. Sanders is unlawful because the Fifth Amendment prohibits the government from punishing failure to obey any regulation that requires a self-incriminating act." The Center for Constitutional Rights represents the plaintiff and seeks a declaration that OFAC’s policy is unlawful, enjoining OFAC from issuing such penalties and setting aside the fine to Sanders. The lawsuit names Treasury Secretary Timothy Geithner as a defendant.
For more, see American Sanctioned By U.S. After Cuba Visit Files Suit in the WSJ Law Blog.
Friday, July 17, 2009
Section 5 of FERA establishes the Financial Crisis Inquiry Commission (“FCIC”) with broad powers to investigate both the domestic and the global causes of the current economic crisis in the United States. The FCIC’s 10 members are chosen by leaders of the major political parties, private citizens with experience in banking, regulation of markets, taxation, finance, economics, consumer protection, and housing. The FCIC will serve two main functions: to examine the causes of the current financial and economic crisis in the United States; and to determine the causes of the collapse of each major financial institution that failed.
Modeled after the 1930s Pecora Commission (named for its committee counsel, Ferdinand Pecora, a former assistant district attorney from New York) which the Senate Banking and Currency Committee formed to investigate the market crash of 1929, the FCIC will hold hearings and have subpoena power. The FCIC has until December 15, 2010 to submit its report of findings and conclusions regarding the causes of the current financial and economic crisis.
Members of the FCIC include former California treasurer, Phil Angelides who will be chairman, and Bill Thomas, former California Republican congressman who led the powerful Ways and Means Committee will be vice-chairman. Other members include Bob Graham, former Democratic senator from Florida, and Brooksley Born, former chairman of the Commodities Futures Trading Commission, John W. Thompson, board chairman of security software Symantec Corp., Heather Murren, a retired Merrill Lynch director and Byron Georgiou, a Las Vegas attorney are the names suggested by Democrats, Douglas Holtz-Eakin of DHE Consulting, Peter Wallison of the American Enterprise Institute and Keith Hennessey, an economic adviser to former President George W. Bush are appointed by the Republicans.
Interestingly, the NY Times reports that President Obama issued a signing statement limiting the administration's duty to comply with requests by the FCIC stating:
Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.The Pecora Commission led to significant reforms including the Securities Act of 1933, the Glass-Steagall Act of 1933, and the Securities Exchange Act of 1934. Whether the FCIC will be able to match the reforms of the Pecora Commission remains to be seen.
Wednesday, July 15, 2009
The report is controversial because while other nations are ranked in tiers according to their efforts to control and combat trafficking within their borders, the United States is not included, nor is it ranked. This year’s report lists 28 nations in Tier I — the highest ranking for minimum compliance with the United States’ anti-trafficking legislation, with 80 nations in Tier 2 and another 52 in the so-called Tier 2 Watch list. The latter designation, which includes China most prominently, is a somewhat murky category that praises a nation for attempting to make progress in combating human trafficking, but also is critical for an increase in reported trafficking incidents. In releasing the TIP Report, Secretary of State Hillary Clinton acknowledged that the U.S. is engaged in its own struggle with trafficking. Her statement said, in part:
“The ninth annual Trafficking in Persons Report sheds light on the faces of modern-day slavery and on new facets of this global problem. The human trafficking phenomenon affects virtually every country, including the United States. In acknowledging America’s own struggle with modern-day slavery and slavery-related practices, we offer partnership. We call on every government to join us in working to build consensus and leverage resources to eliminate all forms of human trafficking.”Since its inception in 2000, the U.S. Department of State's annual Trafficking in Persons report has passed judgment on foreign governments regarding their efforts to combat human trafficking. But next year for the first time, promises Secretary of State Hilary Clinton, the U.S. will grade itself using the same standards.
Tuesday, July 14, 2009
- The quality of leadership – by the state's legislature, its current governor and, where applicable, its ousted governor
- The whiff of criminality in the state's top political leadership
- The severity of the state's policy challenges
- The intensity of the media circus surrounding state government
6. California (with a total dysfunction score of 6.25)With New York being a media capital, it is likely to register a high dysfunction score particularly with so much media attention to the scandals in the Governor’s Office and the month long standoff in the State Legislature. But the article points out: “It's not as if the New York legislature was a beacon of rectitude before the current mess began. According to a scathing series of reports by New York University Law School's Brennan Center for Justice, committees barely met, oversight of the executive branch was rare, required fiscal impact statements were never completed and Internet postings of legislative information were scattershot.” The Report titled Still Broken: New York State Legislative Reform 2008 Update states that at a minimum, both legislative chambers should meet the following five objectives:
5. South Carolina (dysfunction score of 7)
4. Alaska (dysfunction score of 7.25)
3. Illinois (dysfunction score of 7.5)
2. Nevada (dysfunction score of 7.75)
1. New York (dysfunction score of 9.25)
1. Strengthen standing committees so that debate is robust and rank-and-file members can force a hearing or a vote, even over the objections of the committee chair
2. End the leadership stranglehold on bills coming to the floor
3. Allow ample opportunity for adequate review of all bills
4. Provide all members with sufficient resources and opportunities to fully consider legislation
5. With respect to all of the above, make records of the legislative process transparent and easily accessible to the public via the Internet
Friday, July 10, 2009
Alcoholism, other substance abuse and mental illness spare no segment of society at large or of the legal profession. Lawyers in private practice, public service and academia are all susceptible to these illnesses. The pressures that drive lawyers to drink, to use illegal substances and to overuse prescription drugs are probably greater now than at any time in the past half-century. And those pressures, while felt throughout the legal profession, may be taking their heaviest toll in the large law firms of New York City and the state's other urban centers.Substance abuse and mental health issues in law schools have an impact on student retention, achievement and, ultimately, on bar admission. These concerns affect the future of the profession. The Report on a Survey of Law School Professionalism Programs from a 2006 survey by the ABA Standing Committee on Professionalism of law school professionalism programs showed that:
- 95% of responding schools indicated that they or their parent university have a program of assistance available for law students who may be dealing with substance abuse or mental health issues;
- 65% of these schools have access to the state bar’s lawyer assistance program;
- 50% reported that 25 or fewer students use the program in a year;
- 77.5% of the schools reported that students who participate in the program are counseled about implications for bar admission.
Law students and lawyers in need of help addressing alcohol or other substance abuse can find it as close as the nearest telephone. The lawyer assistance programs at the New York State and New York City Bar associations can arrange for appropriate professional counseling and, if indicated, in-patient treatment. Patricia Spataro, director of the state bar program, can be reached at 800-255-0569; Eileen C. Travis, who directs the city bar program, can be reached at 212-302-5787. The LAT 2009 law student brochure explains the availability of LAP services.
Tuesday, July 7, 2009
Much of the ruling goes through the four factor test of fair use, focusing on why the new work was not a parody. The Court’s decision analyses whether this particular use was fair by considering these four factors:
- The purpose and character of the use
- The nature of the work
- The amount and substantiality of the portion used in relation to the work as a whole
- The effect of the use on the market or potential market for the original work
For more, see Judge Enjoins From Publication 'Meditation' on 'Catcher in the Rye' by Mark Hamblett in the New York Law Journal (password required).
Thursday, July 2, 2009
According to the opinion, after the student graduated from law school and passed the New York bar examination in Feb. 2008, he disclosed to the Character and Fitness Committee disclosed various unpaid student loans with balances of about $430,000 and attributed his nonpayment of the loans to the downturn in the economy as well as bad faith negotiations on the part of some of the loan servicers. While the facts of this case seem extreme, the decision presents a cautionary tale to law students generally. This is particularly true given that nationwide, the average student loan debt for law graduates is more than $75,000, and the median salary for the first several years after law school is only around $60,000. (See Law.com and Payscale.com).
Postings of comments on a number of blogs present the facts in a different light. See, for example, the Legal Profession Blog and the comments there, as well as the Adjunct Law Prof Blog where the applicant writes in an April 22nd comment:
The sum borrowed was $220,000, the approximate amount owed is $430,000. Below is the first page of correspondence and the last page - the conclusion. It should be noted that approximately 70k was borrowed to cover medical expenses after my left leg was severed off in an accident.
While the facts contained in these comments did not persuade the Character and Fitness Committee or the Third Department of the Appellate Division, they do shed some light on the circumstances showing that the loans date back to the 1980s because the applicant had taken an extended medical deferrment after suffering a leg amputation; the loans appear to have gone into default shortly after graduation, while the applicant was studying for the bar exam; and that the loans include more than $200,000 in interest and fees. The applicant, raised in a homeless shelter, appears to have had some serious medical problems and has no significant family support. His argument that his loan provider, Sallie Mae, acted in bad faith might resonate with many student loan debtors.
Wednesday, July 1, 2009
The Court ruled that a provision of the NBA, 12 U.S.C. § 484(a) which states that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof” was invalid. The 5-4 opinion by Justice Antonin Scalia, stated that "The Comptroller’s regulation purporting to pre-empt state law enforcement is not a reasonable interpretation of the NBA". In 2007, the 2nd Circuit Court of Appeals opinion said that the interpretation of the NBA by the Office of the Comptroller of the Currency was entitled to deference, and the NY Attorney General's office had no "visitorial powers" over national banks.
The decision was a surprise victory for consumer groups and state officials because repeated attempts to challenge the National Bank Act of 1864 have nearly always been rejected in court. The ruling will allow state attorneys general in certain cases to sue any of the country’s 1,500 national banks.
For views of the Court's decision see the Conglomerate Blog and Scotusblog.