Wednesday, November 25, 2009
Chief Judge Jonathan Lippman’s majority opinion upheld the condemnation on the grounds that the area containing the private parcels was "blighted" and subject to condemnation under the state Constitution, acknowledging that the need to redefine the definition of urban blight. Judges Susan P. Read and Eugene F. Pigott Jr. issued a concurring opinion upholding the dismissal of the petition on the grounds that it was filed too late.
Last year, this site had a post about the 2nd Circuit Court of Appeals affirming the dismissal of a complaint challenging eminent domain action on the grounds that it violated the Public Use Clause of the Fifth Amendment. This latest case may end legal challenges to the proposed development by opponents from the surrounding Brooklyn neighborhood although activists like Develop Don’t Destroy Brooklyn say otherwise. A Volokh Conspiracy post suggests that the Goldstein case may lead to more backlash against unfettered public takings with restrictive definitions of “public use” economic development takings of the kind upheld in Kelo v. City of New London, 545 U.S. 469 (2005).
A recent WSJ article reports that, four years after the Kelo case, Pfizer Inc., the private developer, announced that it has abandoned its plans for a hotel and offices and will close its research and development headquarters in New London, Connecticut. For further reading on the Kelo case, the Brooklyn Law School Library has Little Pink House: a True Story of Defiance and Courage by Jeff Benedict (Call #KF229.K45 B46 2009) telling the story of how Susette Kelo and fourteen neighbors fought the corporate giant and the city government to save their homes as the city decided to exercise its power of eminent domain to condemn them.
Monday, November 23, 2009
The article also includes criticisms of the subsidy from two generations of tax reformers and tax policymakers that are more applicable today than at any time during the deduction's nearly 100-year history including The Hidden Welfare State: Tax Expenditures And Social Policy in the United States by Christopher Howard (Call # HJ2381 .H684 1997) where the author identifies the MID, Social Security and Medicare as the three members of the “Holy Trinity of U.S. social programs”.
Prof. Ventry appeared on All Things Considered this past weekend to discuss the paper in a segment Is Tax Deduction For Home Mortgages A Bad Idea? A transcript of the interview is available at the site along with an audio file for the interview. Any effort to eliminate or even modify the deduction for mortgage interest is likely to generate strong opposition from real estate interests, like the National Association of Realtors and the National Association of Home Builders. History shows that with President Reagan and the Tax Reform Act of 1986 and with President Bush when his tax-reform advisory panel unsuccessfully urged restricting the MID. The issue will likely remain the "third rail" of tax reform as President Obama attempts to cap mortgage interest deductions on “higher income” households in his proposed budget. The Congressional Budget Office in its Overview of Federal Support for Housing estimates that the MID accounts for an estimated revenue loss of $80 billion in 2009. Members of Congress have already introduced bills and resolutions expressing opposition to efforts to modify the MID: Rep Leonard Lance (NJ-7) introduced H. Con. Res.130 expressing support for the current standards of the Federal mortgage interest tax deduction and Rep. Zach Wamp (TN-3) introduced H.R. 1805 to make the deduction for mortgage interest a permanent part of the tax code.
Saturday, November 21, 2009
That defense may no longer work especially when the complaint against the credit rating agency sounds in fraud or negligence. Consider the October 2009 ruling in Abu Dhabi Commercial Bank and King County, Washington v. Morgan Stanley by Judge Shira Scheindlin of the Southern District of New York. That decision forced the defendants, which included rating giants S&P and Moody’s to respond to fraud charges in a class-action by investors claiming the raters hid the risks of securities linked to subprime mortgages. Judge Scheindlin’s ruling, dismissing all but one of the eleven claims against Moody’s, stated that the First Amendment does not provide a defense where the rating agency comments were distributed privately to a select group of investors and not to the general public and “if the speaker does not genuinely and reasonably believe it or if it is without basis in fact.”
Brooklyn Law School Library's catalog, SARA, , has reading on the topic. In addition to BLS Professor of Law David J. Reiss' article Subprime Standardization: How Rating Agencies Allow Predatory Lending to Flourish in the Secondary Mortgage Market in 33 Fla. St. U. L. Rev. 985 (2006), there is Special Issue: Causes of the Financial Crisis (Call # HB3722 .S73 2009) with a series of articles on the financial crisis including one by Lawrence J. White titled Credit Rating Agencies and the Subprime Debacle. The abstract for that article reads:
By means of the high ratings that they awarded to subprime mortgagebacked bonds, the three major rating agencies—Moody’s, Standard & Poor’s, and Fitch—played a central role in the current financial crisis. Without these ratings, it is doubtful that subprime mortgages would have been issued in such huge amounts, since a major reason for the subprime lending boom was investor demand for high-rated bonds—much of it generated by regulations that made such bonds mandatory for large institutional investors. And it is even less likely that such bonds would have become concentrated on the balance sheets of the banks, for which they were rewarded by capital regulations that tilted toward high-rated securities. Why, then, were the agencies excessively optimistic in their ratings of subprime mortgage-backed securities? A combination of their fee structure, the complexity of the bonds that they were rating, insufficient historical data, some carelessness, and market pressures proved to be a potent brew. This combination was enabled, however, by seven decades of financial regulation that, beginning in the 1930s, had conferred the force of law upon these agencies’ judgments about the creditworthiness of bonds and that, since 1975, had protected the three agencies from competition.
Friday, November 20, 2009
In an earlier ruling, Judge Reinhardt concluded that the plaintiff and his spouse were entitled to their benefits, but the federal government still refused. Judge Reinhardt’s recent Order awards the plaintiff money to compensate him for the cost of the additional insurance. The Order, in dicta, states that marriage, traditionally regulated by state law, is a fundamental right and for the case at hand, the judge “need determine only whether same-sex spouses who have been legally married under the laws of the relevant state may, because of the sex or sexual orientation of the couple, be denied federal benefits that are afforded to other spouses legally married under such laws.” The conclusion on page 16 of the order speaks in broad terms:
In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee’s and his or her spouse’s sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.
In New York, the Court of Appeals on Thursday dismissed a complaint in Godfrey v. Spano by taxpayer plaintiffs challenging directives by county officials that recognized out-of-state same-sex marriages for purposes of public employee health insurance coverage stating on page 4 of the opinion "Although the federal Defense of Marriage Act (DOMA) authorizes the states to pass so-called "mini-DOMAs" . . . New York has not, and the Legislature has enacted no other law expressly forbidding the recognition of same-sex marriages performed in other jurisdictions or expressing any legislative intent that such marriages be voided."
The Brooklyn Law School Library has a number of related items in its collection. See What's the Harm?: Does Legalizing Same-Sex Marriage Really Harm Individuals, Families, or Society? edited by Lynn D. Wardle (Call # KF539 .W53 2008).
See also Same-sex marriage and the Constitution by Evan Gerstmann (Call # KF539 .G47 2008) with chapters that include Reason and prejudice: is the heterosexual monopoly on marriage rational? -- Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection -- The fundamental right to marry -- Same-sex marriage and the fundamental right to marry -- Should courts create new rights?
See also Same Sex, Different States: When Same-Sex Marriages Cross State Lines by Andrew Koppelman (Call # KF539 .K67 2006) including these chapters: Marriage, choice of law, and public policy -- Miscegenation in the conflict of laws -- Against blanket nonrecognition -- Choice of law rules: the options -- When to (and when not to) recognize same-sex marriages -- The irrelevance of full faith and credit and the Defense of Marriage Act -- The difference the mini-DOMAs make.
Thursday, November 19, 2009
There is a separate patent search interface in addition to the legal opinions and journals which the searcher can choose to add to the search results. In order to search content from all 50 states (and DC) at one time, the search must check each “state” box on the advanced search page.
The addition of free access to the “laws that govern us” along with the emergence of Bloomberg Law to the world of legal information is likely to get the attention of LexisNexis and Westlaw, the two main commercial online databases which lawyers and legal research scholars use to search for this material. The ABA has recently launched its Media Alerts on Federal Courts of Appeals Website summarizing federal court opinions and upcoming cases for its audience of lawyers and other legal professionals. However, with so much information available on the web, whether for free or for fee, it is important to remember the distinction between search and research. As stated in this Westlaw video “Our Salute to Law Librarians” featuring UCLA Prof. Bob Berring, NYU Prof. Arthur Miller and Linda Will, Law Librarian Consultant, industry leaders reflecting on the invaluable work of law librarians “There’s a difference between research and search.”
Tuesday, November 17, 2009
On Saturday, November 14, the Brooklyn Entertainment and Sports Law Society (BESLS) held its first annual panel called Perspectives in the Sports and Entertainment Legal Professions at Brooklyn Law School’s Feil Hall. There were four panels of lawyers including a music panel “Keeping up with the Times: Adapting to Changes in the Music Industry”, a sports panel “Paths to a Career in Sports Law”, a fashion panel “The Rise of the Frugalista: The Fashion Industry's Response to the Recession” and a television/film panel “Evolving Technology, Slowing Economy: Emerging Legal Issues in Film & TV. Among the 16 practitioners on the panels were nine alumni of Brooklyn Law School (Dona Fraser, Class of 2001, Jason Pascal, Class of 1995, Peter A. Fields, Class of 1990, Karen Lapidus, Class of 1984, Doreen Small, Class of 1984, Ira Cure, Class of 1983, Hayden M Goldblatt, Class of 2008, Michael Maizner, Class of 2003 and Steven Paul Mark, Class of 1973).
This episode of the podcast series of the BLS Library Blog features BESLS President Joshua Fox, Class of 2010, who addresses the group’s purpose, what activities the group has done in the past, plans for this year, and summarizes what occurred at the group’s first major event this past weekend. BESLS is organized to promote an increased knowledge of and greater interest in the legal fields of entertainment law. More information about BESLS is available on its TWEN page on Westlaw.
The Brooklaw Library Weblog had a recent posting Play Ball! Sports & the Law by Associate Librarian Linda Holmes with links to related books and law review articles. The posting provides links to several items in the BLS catalog, SARA. See also Inside the Minds: the Legal Sides of Entertainment, Sports, & Media edited by Michaela Falls (Call #KF4290 .I57 2004) with chapters that include Sports law: an emerging area of practice -- The successful entertainment lawyer -- Media law and the passion for freedom of speech -- The growth of entertainment law -- The entertainment lawyer: protector of the creative and innovative -- Integrity and responsibility: keys to entertainment law success -- Making it as an entertainment lawyer -- The long and winding road: finding your way in the entertainment industry -- Sports law: beyond the media madness -- Achieving success and personal satisfaction in entertainment law.
Friday, November 13, 2009
The shift from a conservative constitutional jurisprudence to a liberal, progressive one is the subject of The Constitution in 2020 by Jack Balkin and Reva Siegel (KF4550 .C576 2009) in the BLS Library collection. Inspired by a 2005 Yale Law School conference sponsored by the American Constitution Society and other progressive groups, the book seeks to define a progressive constitutional agenda for the coming century. The conference followed with a website with a blog, book reviews, sample chapters, related news items, bios of the authors, and related readings.
The editors, two of America's leading constitutional scholars, provide a framework for addressing the most important constitutional issues of the future featuring a collection of 27 brief essays by notable "progressive" scholars of law and politics – Cass Sunstein, Bruce Ackerman, Robert Post, Harold Koh, Larry Kramer, Noah Feldman, Pam Karlan, William Eskridge, Mark Tushnet, Yochai Benkler and Richard Ford, and others. In addressing a wide range of issues, from the challenge of new technologies, presidential power, international human rights, religious liberty, freedom of speech, voting, reproductive rights, and economic rights, the book calls on liberals to articulate their constitutional vision to gain the confidence of ordinary Americans. Whether the “democratic constitutionalism” Balkin and Siegel offer will in fact lead to a new generation of liberal lawyers to counter the strict-constructionist conservative lawyers of the Federalist Society who dominated the federal courts in the Nixon, Reagan, Bush 41 and Bush 43 eras is uncertain.
A central idea of the book is that courts should pursue similar social justice ends as the Warren Court by using more modest, less activist means and acting with progressive political movements. It suggests that the courts are not the only players to promote social progress. “Decisions made by legislatures and executive officials about our rights are just as important” as judicial decisions, if not more so, Balkin and Siegel write in the introduction. They also state: “This book contests the conservative belief that we should cleanse constitutional law of contemporary understandings and restore the Constitution to an imagined past, a time when we obeyed the founders . . . We think the past several decades of conservative judging have often departed from the best understandings of the Constitution, as the contributors of this book explain in detail. But the goal of constitutional interpretation is not only restorative – it is also redemptive. Our Constitution is not only a bond with the past; it is a bond with the future, expressing commitments that the American people have yet fully to achieve.” The book, with the most provocative constitutional thought of the progressive movement, is certainly worth reading for anyone interested in politics or constituional law.
Tuesday, November 10, 2009
In 1954, Congress passed legislation (Public Law 83-380, 68 Stat. 16) to change the name of the holiday to Veterans Day to honor all veterans as there were then more veterans of WWII than there were of WWI. Later that year, on October 8th, President Dwight D. Eisenhower issued the first "Veterans Day Proclamation".
On June 28, 1968, the Uniform Holiday Bill (Public Law 90-363, 82 Stat. 250) was enacted to ensure that the four big federal holidays – Washington’s birthday, Memorial Day, Columbus Day and Veterans Day – would always be celebrated on Mondays, thus preserving the three-day weekend and allowing for travel and recreational activities. Under the new bill, Veterans Day was moved to the last Monday of October and fell on October 25. Because of the significance of the date November 11, citizens and veterans groups around the country wanted to continue to recognize that day. On September 20, 1975, President Gerald Ford signed Public Law 94-97 to return the observance back to its original day. Veterans Day is on November 11 every year, regardless of what day of the week it falls on. The DVA website states that Veterans Day is a “celebration to honor America’s veterans for their patriotism, love of country, and willingness to serve and sacrifice for the common good.”
Recent years have seen efforts to commemorate veterans with more than a single day’s observance. On August 4, 2001, the U.S. Senate by Resolution 143 designated the week of November 11 through November 17, 2001, as "National Veterans Awareness Week" calling for educational efforts directed at elementary and secondary school students concerning the contributions and sacrifices of veterans. The practice has continued most recently with the 2008 Senate Resolution 692. This week, VA Secretary Eric K. Shinseki announced that DVA and the Library of Congress will offer a Veterans History Countdown web site with oral histories of veterans from every state and US territory. The site provides background about the program, a guide for volunteers to follow in recording and submitting veterans' oral histories, and access to the project's extensive digital archive with links that allow access stories in a number of methods:
Sunday, November 8, 2009
The report attributes the rise in law school tuition costs to competition for better rankings and a more hands-on approach to educating students for the increased price of a law degree rather than to accreditation standards of the American Bar Association. The report states that law schools are providing courses and student-support programs that require more staff and faculty. At the same time, the report noted decreases in state appropriations as a reason for rising tuition.
The report also addresses access to law schools and concludes that minorities are making up a larger share of law-school enrollments than in the past, despite a drop in the percentage of African-American students. In the academic years from 1994 to 2007, black students went from 7.5 percent of law school students to 6.5 percent, while the number of blacks earning bachelor's degrees grew two percent. Law school rankings may account for lower or static enrollment rates of minorities as "Schools are reluctant to admit applicants with lower LSAT scores because the median LSAT score is a key factor in the U.S. News & World Report rankings." Another posting on TaxProf Blog, U.S. News: GAO Wrong to Blame Us For Rising Law School Tuition, links to a contrary view in a U.S. News & World Report article, Who's at Fault for the High Cost of Law School?
Friday, November 6, 2009
maximum punishment for juvenile offenders at life without the possibility of parole. See Adult Time for Adult Crime: Life Without Parole for Juvenile Killers and Violent Teens by the Heritage Foundation.
The facts of the both cases are worth reviewing. A NY Times article from early this year stated that the then 13 year old Joe Harris Sullivan admitted that he and two older friends had burglarized the home of a 72 year old Florida woman. But he denied rape charges. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. She recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At trial, Sullivan had to repeat this phrase several times. Although the victim did not clearly identify Sullivan, he was convicted after a one day trial where he was represented by a lawyer who made no opening statement and whose closing argument occupies about three double-spaced pages of the trial transcript. The lawyer was later suspended, and the Florida Bar’s Web site says he is “not eligible to practice in Florida.”
A recent Newsweek article states the then 17 year old Terrance Jamar Graham tried to rob a restaurant with two accomplices. Charged as an adult, he pled guilty to armed burglary charges, and received one year behind bars and three years probation. When he violated probation, he was sentenced, without trial, to life without parole.
Among the amicus briefs that the Supreme Court will consider is the Brief for Former Juvenile Offenders Charles S. Dutton, Former Sen. Alan K. Simpson and others in Support of Petitioner which argues for giving juveniles a second chance. Charles S. Dutton attended Yale University’s School of Drama and made his Broadway debut in1984 and received two Tony nominations. Alan K. Simpson served in the US Senate from 1979 to 1997, serving, among other positions, as Republican Whip and Chairman of the Veterans Affairs Committee. He has also served several terms in the Wyoming legislature.
The Brooklyn Law School Library has in its collection material related to the topic of sentencing juveniles to life without parole. See, for example, Symposium on Youth and the Law (Call # P N84 v. 22 no. 1) in 22 Notre Dame Journal of Law, Ethics, & Public Policy (2008) with its lead article at page 9 by Barry C. Feld entitled, "A Slower Form of Death: Implications of Roper v. Simmons for Juveniles Sentenced to Life Without Parole".
See also The Rest of their Lives: Life without Parole for Child Offenders in the United States by Alison Parker of Human Rights Watch (Call # KF9820 .R47 2005) which found "at least 2,225 people incarcerated in the United States who have been sentenced to spend the rest of their lives in prison for crimes they committed as children."
Wednesday, November 4, 2009
Now, the Federal Digital System (FDsys - accent on the D) is the new advanced digital system that will enable GPO to manage Government information from all three branches of the US Government. The migration of information from GPO Access into FDsys will be complete in 2009. Until then GPO Access will contain all content. FDsys (http://fdsys.gpo.gov/) is currently available in beta format. It currently offers more than 150,000 of the same congressional and executive documents as GPO Access, with advanced search capabilities and a more user-friendly interface. It is also the only source for the Daily Compilation of Presidential Documents which replaced the former Weekly Compilation earlier this year.
GPO has made available brief FDsys video tutorials, including an FDsys overview, simple search, advanced and citation search, and browsing. The FDsys tutorials are:
- FDsys Overview - This video is a brief overview on the background of FDsys.
- FDsys Simple Search - This is a video tutorial on how to perform simple searches within the system and filter your results.
- FDsys Advanced Search - This is a video tutorial on how to perform advanced searches and citation searches within the system.
- FDsys Browse - This is a video tutorial on how to browse for government publications within FDsys.
Tuesday, November 3, 2009
In this pod cast, recorded on Election Day 2009, BLS Professor of Law Joel M. Gora discusses his book Better Parties, Better Government: A Realistic Program for Campaign Finance Reform that he co-authored with American Enterprise Institute Senior Fellow Peter J. Wallison. The book describes how campaign finance laws prohibit political parties from fundraising on behalf of individual candidates, forcing candidates to finance their campaigns independently. The current campaign finance system favors wealthy candidates and protects incumbents while discouraging challengers. In the book, the authors argue that allowing parties a greater role in campaign fundraising would strengthen the political parties. It would also attract more qualified candidates, and free officeholders to govern without undue financial influence. The publisher AEI Press, besides issuing the print version earlier this year, has posted an online version of the book.
Prof. Gora teaches Election Law: the Law of Democracy, Federal Courts and the Federal System, Constitutional Law III: First Amendment, Constitutional Law, First Amendment Seminar at Brooklyn Law School. He has had an extensive history with free speech and other civil liberties issues including serving as General Counsel for the New York Civil Liberties Union and National Staff Counsel and Associate Legal Director with the American Civil Liberties Union. His many contributions to legal scholarship are listed on his Selected Works page.