A Christmas Carol in Court

The Brooklyn Law School Library will be closed from Friday, December 24 and reopens Monday, January 3, 2011. The BLS Library Blog wishes you a Merry Christmas, a Happy Holiday, and a Happy New Year.

A keyword search of SARA, the BLS Library Catalog, for Christmas yields only a few hits, one of which is notable. Charles Dickens in Chancery: Being an Account of his Proceedings in Respect of the “Christmas Carol” with Some Gossip in Relation to the Old Law Courts at Westminster is available through the library’s Making of Modern Law subscription. It tells the story about Charles Dickens holiday classic, A Christmas Carol published a few days before Christmas of 1843 and the legal affair that unfolded in its aftermath. The book's successful publication is a story all of its own. Its success led to a number of unauthorized variations in the month following publication. One of these appeared in book shops on January 6, 1844 with the title “A Christmas Ghost Story. Re-Originated from the Original by Charles Dickens, Esq., and Analytically Condensed Expressly for This Work”. Two days later Dickens’s solicitor filed for an injunction against its publisher, Peter Parley's Illuminated Library to stop publication of this obviously plagiarized edition. The defendants argued that Dickens’s works had been “re-originated” before and Dickens had not filed suit to stop the practice. However, Vice-Chancellor Bruce found that this piracy had gone “beyond all previous instances” and ruled in Dickens’s favor.

Dickens initiated five more suits against plagiarists of his popular “little Carol” in the next four months. Because the defendants all declared bankruptcy, there were no assets to pay even the court costs Dickens incurred while trying to protect his intellectual property. While his own publisher sold thousands of copies of his classic tale, his profit was greatly reduced by his encounter with Chancery Court. For more on the Carol lawsuit, see Grafting A Christmas Carol by Michael Hancher, SEL Studies in English Literature 1500-1900, Volume 48, Number 4, Autumn 2008, pp. 813-827, available through the BLS Library subscription to Project Muse.

Dickens' Pyrrhic victory in the Christmas Carol suit arguably led to his protest against the arrogance of law and judges in his novel Bleak House published a decade later. Consider this quote from from the opening pages of Bleak House:

This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the rounds of every man's acquaintance; which gives to monied might; the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who does not give—who does not often give—the warning, "Suffer any wrong that can be done you, rather than come here!”

Future of Class Actions

The US Supreme Court is reviewing two cases that could have a profound effect on class action practice. The cases are AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The AT&T case, which concerns arbitration agreements, may have an impact on class action lawsuits. The dispute deals with contracts between AT&T and its customers containing class action waivers that could create more difficulty for class action proceedings, a potential "class action ban case in arbitration clothing." The plaintiffs, Vincent and Liza Concepcion, are challenging a mobile phone contract clause that includes a waiver of class action rights. AT&T Mobility is arguing that California's law banning waiver of class actions in contracts, including arbitration clauses, is preempted by the Federal Arbitration Act. For more on the case, see Adam Liptak’s NY Times article Supreme Court Weighs Class-Action Suits. If the Court rules that the Federal Arbitration Act preempts California's law a "presumption against class actions could be created."

The second case, Wal-Mart Stores v. Dukes, is a direct challenge to the practice of class-action lawsuits. Earlier this month the Court granted certiorari to determine whether the largest class action suit in history can proceed. The nine-year-old case asserts that despite lower turnover rates and better performance evaluations, Wal-Mart for decades has passed over women within the company for promotion and paid them less than men for the same jobs. An article in the National Law Journal Big Term for Class Actions addresses the perception of a pro-corporate bias in the Supreme Court. If the court sides against customers in the AT&T case and against the plaintiffs claiming gender discrimination in the Wal-Mart case, there will be greater restrictions of class-action lawsuits, one of the most powerful tools to challenge corporate misconduct.

The Brooklyn Law School Library has recently added to its collection A Practitioner's Guide to Class Actions by Marcy Hogan Greer (Call #KF8896 .P735 2010) a comprehensive guide that provides practitioners with an understanding of the intricacies of the class action lawsuit. The 1300 page guide has a state-by-state analysis of the ways in which the class action rules differ from the Federal Rule of Civil Procedure 23.

Statistical DataSets for Empirical Research

To provide a useful tool for empirical legal research scholars, the Brooklyn Law School Library has enhanced its subscription to LexisNexis Statistical Universe aka Statistical Insight. This database, avalable on the BLS Library A to Z list, will now provide access to 12 billion data points from licensed and public domain datasets. Much of the new coverage allows for searching the database so that each entry in a result list will be accompanied by a new PDF icon when applicable. LexisNexis Statistical DataSets is a module within Statistical Insight that provides Web-based research solutions for fast and easy access within an easy-to-use interface. This tool permits scanning the contents of the collection, selecting subjects of interest, and viewing data in side-by-side tables and charts. The product is completely interactive and results are instantaneous. Each time a user clicks on a new element, the elements that are shown in the display area are updated, and a new table, chart, and/or map appear. When looking up statistical information, this database may be the ideal starting point.

Other components of LN Complete Statistical Package include:

• LexisNexis Statistical Insight Tables
• American Statistics Index (ASI)
• ASI Online with PDFs from 2004 forward- Full Text Statistical Reference Index (SRI)
• SRI Online with PDFs from 2008 forward- Full Text
• Index to International Statistics (IIS)
• IIS Online with PDFs from 2007 forward-Full Text

LexisNexis has created a number of useful resources to help answer questions about the product including a libguide, a wiki and a guide book. This video is one of several that LexisNexis created to explain the product:

Tax Laws: Fair or Not?

The Middle Class Tax Relief Act of 2010 has become the Tax Relief, Unemployment Insurance Reauthorization and Jobs Creation Act of 2010. Despite objections across the political spectrum, the House and Senate are likely to pass the compromise tax bill. The complexities of the compromise make assessing its wisdom difficult. To make the task a little easier, Brooklyn Law School Professor of Law Bradley Borden wrote The Prince and the Paupers: A Tax Fable to explain the current tax system to his daughter. The article addresses the fairness of the tax system ending with Brad’s daughter asking the unanswered question “Why don't more people tell Congress to change the tax law?"

The US Department of the Treasury has a web page with a History of the U.S. Tax System. Efforts at tax fairness include the Reagan tax cuts in the Tax Reform Act of 1986 (P.L. 99-514, 100 Stat. 2085, enacted October 22, 1986) designed to simplify the income tax code, broaden the tax base and eliminate many tax shelters and other preferences. The Bush tax cuts contained in the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) (P.L. 107-16, 115 Stat. 38, June 7, 2001), and the Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA) (P.L. 108-27, 117 Stat. 752, enacted May 28, 2003) were scheduled to expire at the end of this year. Efforts to enact tax fairness in new legislation are now caught up in politics.

The BLS Library has a number of items in its collection dealing with the inequities of the tax code. See for example Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich--and Cheat Everybody Else by David Cay Johnston (Call # HJ2362 .J64 2003) with these chapters: Taxes: they're not for everyone -- A nickel an hour more -- Rich get fabulously richer -- Big payday -- Plane perks -- When the old man is dead and buried -- Stealth tax -- How social security taxes subsidize the rich -- Preying on the working poor -- Handcuffing the tax police -- Mr. Rossotti's customers -- For want of a keystroke -- Mr. Kellogg's favorite loophole -- Mass market tax evasion -- Getting off the hook -- Profiting off taxes -- Profits trump patriotism -- Letters to Switzerland -- Gimme shelter -- Only the rich deserve a comfortable retirement -- Is reform possible?

In order to promote understanding of complex federal budget information, the National Priorities Project (NPP) makes the topic transparent and accessible so people can prioritize and influence how their tax dollars are spent. The cost of war is a major component of federal spending as shown in this counter from NPP:

See more in the Congression Research Service report The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11.

This chart shows total spending for the years 2010 and 2011:

Wrongful Death Suit for Child in Utero

A New York Law Journal article (password required) reports that the Appellate Division, Second Department based in Brooklyn recently ruled that, under New York law, a wrongful death action brought on behalf of a child who was in utero at the time of his father’s death may proceed to trial over objections tnat child in utero suffered no pecuniary loss. The case is Seaton v. County of Suffolk brought on behalf of the now 8 year old boy whose father, then 20 year old student Jose Colon died in 2002 from gunshots accidentally fired by Suffolk County police during a drug raid involving several ounces of marijuana. The shooting occured three days after Colon learned that his ex-girlfriend was six-weeks pregnant with his child. Seven months later, she gave birth to the son on whose behalf the wrongful death action was filed.

The mother of the deceased Colon joined the mother of his child to sue the county and the police department. The defense moved to dismiss the claims on behalf of the decedent's non-marital child arguing that the case "presents all of the complications associated with a pecuniary loss claim that is proffered on behalf of a fetus: the decedent did not contribute to the support or medical care of the fetus' mother; the decedent was involved in a relationship with a different 'girlfriend' at the time he was allegedly told about the fetus; paternity of the fetus was not established prior to the decedent's death; the gestational age of the fetus was alleged to be six weeks at the time of the decedents' death." Both the trial court and the appeals court rejected the motion relying on NY's Estate, Powers & Trusts Law governing intestate succession. Section 4-1.2 of the EPTL (amended in 2009) states that a "non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if . . . paternity has been established by clear and convincing evidence . . . [and] the father openly and notoriously acknowledged the child as his own." A posthumous DNA test showed clear and convincing proof of paternity.

The case will go to trial with a possible large damages award on behalf of the child. Plaintiffs submitted an affidavit estimating that, based on the decedent's age, education and $11 per hour income at the time of his death, his son suffered a pecuniary loss of income of $1.35 million. The Brooklyn Law School Library has in its New York collection New York Damages Awards: Personal Injury & Intentional Torts (Call #KFN5311.N48) published annually by West. The library keeps the latest 2010 edition which has cases arranged in chapters according to the injured part of the body. The book includes checklists and forms.

Lawyering Skills

The Law Librarian Blog has a recent post citing former Brooklyn Law School Adjunct Professor Steven C. Bennett’s article When Will Law School Change? 89 Neb. L. Rev. 87 (2010), discussing ways to integrate neglected fundamental professional legal skills into the law school curriculum. In the article, Bennett states “Students should also get some experience as clients themselves, perhaps in role-playing exercises, to help them recognize the needs of those they may come to serve. Training in interviewing skills, counseling and negotiating—all among the most basic and transferable skills for use in practice—can help students develop a sense of the elements of lawyering that extend beyond pure legal reasoning and analysis.”

Brooklyn Law School includes in its curriculum experiences and training he advocates. Professor Gary Schultze teaches a Negotiation Seminare where students study the theories and skills of negotiation, read and discuss writings on negotiation and work with outside participants such as practicing attorneys and psychologists. There is extensive use of videotaping and group analysis of various negotiation techniques. In the upcoming spring 2011 semester, Princeton University Professor John Darley will be visiting Brooklyn Law School to teach an Intensive Negotiation Workshop. Darley, a Professor of Public Policy at the Woodrow Wilson School of Public Affairs and a pioneer of social psychology, is known for his work on altruism, bystander intervention, deviation and conformity, attribution, moral judgment, and psychology and law.

For several years, Brooklyn Law School Associate Professor of Clinical Law Karen Van Ingen, whose expertise includes Alternative Dispute Resolution: Negotiation, Mediation and Arbitration, has directed the Investor Rights Clinic and taught a seminar in arbitrating investor rights. To teach mediation and negotiating skills to her students, Prof. Van Ingen has looked to the BLS Library audio visual collection for such items as Saving the Last Dance: Mediation through Understanding (Call #KF9084 .S27 2001) and Negotiation in the Practice of Law: a Video Companion (Call #KF9084.Z9 N435 1998). These are two items in the BLS Library's AV collection. Maria Okonska, BLS Library Manager of Bibliographic Operations, states that there are 523 videos in the library’s AV collection in Room 111 on the first floor of the library.

The library has in its print collection The Lawyer's Guide to Negotiation by X.M. Frascogna and H. Hetherington (Call #KF300 .F75 2009). Chapters in this item are: Law practice is negotiation -- Power of leverage -- Personal negotiating style: how leverage is used -- Preparation: the essential ingredient for success -- Opening moves: how to seize control of the negotiation -- Maintaining control at every stage of the negotiation -- Tactical negotiating ploys that can improve your bargaining position -- Fallback strategy: a systematic approach to dealing with setbacks -- Closing -- Deal making: guidelines for successful business negotiation -- Negotiating lawsuit settlements.

Final Exams Tips

Monday, December 6 is the last day of fall semester classes at Brooklyn Law School. The reading period starts on Tuesday and the fall semester examination period running from December 9 to December 22. Students looking for advice on taking and passing law school exams can review this list of web sites:

A Common Law School Exam Mistake – a post from the Volokh Conspiracy blog that talks about how to organize exam answers and how not to organize them
Beyond IRAC: Law School Exam Taking Tips – the Legal Profession Blog’s advice on how to write law school exams
CALI’s Law School Exam Advice Post – links to essays and podcasts on how to do well on both essay and multiple choice law school exams
Law Career Blog’s Exam-Taking Advice – short and helpful exam-taking advice with three links
Lawyerist’s Tried and True Advice for Law School Exams – posts on taking different types of law school exams
University of Washington Law Library Law School Exam Page – a bibliography of exam prep sources
Writing Law Examinations – an essay by Yale Law School Professor John H. Langbein reposted on Westlaw

The BLS Library has Law School Success in a Nutshell: A Guide to Studying Law And Taking Law School Exams by Ann M. Burkhart, Robert A. Stein (Reserve - Call #KF283 .B87 2008) on reserve at the circulation desk. Chapter 12 has thirty pages of topics dealing specifically with law school exams.

These items are in the Main Collection in the lower level of the library:
Law School Exams: Preparing and Writing to Win by Charles R. Calleros (Main Collection - Call #KF283 .C35 2007) - Part Four (Taking Law School Exams) has about 80 pages along with three appendices with sample answers to essay exam exercises.

Getting to Maybe: How to Excel on Law School Exams by Dean Jeremy Paul and Prof. Michael Fischl (Main Collection - Call #KF283 .F47 1999).

Bail Means Jail for Poor

Human Rights Watch’s latest report The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City is a study that addresses the pretrial incarceration of New York City defendants accused of non-felony crimes, such as shoplifting, smoking marijuana or disorderly conduct in 2008. It states that in about three out of four of total 117,064 cases studied, defendants were released on their own recognizance. But for 19,137 people, bail was set at $1,000 or less and most of those defendants were unable to pay. In 87% of the cases (16,649), the defendants were not able to post bail at their arraignment and were incarcerated pending trial. The average length of pretrial detention was 15.7 days. Almost three out of four (71.1%) were accused of nonviolent, non-weapons related crimes. At any given moment, 39% of the city’s jail population consists of felony and non-felony pretrial detainees who are in jail because they have not posted bail. The report is worth reading for all its statistical information on bail such as that contained in this table.










The report suggests implentation of pretrial supervision program as an alternative to pretrial detention from both a cost and a human rights perspective. Pretrial supervision would not only honor the presumption of innocence, but would save the city tens of millions of dollars in jail costs. It also states that pretrial confinement increases the likelihood of conviction. Pretrial confinement prompts defendants to plead guilty and give up their right to trial. The Brooklyn Law School Library has in its catalog a two part report from 2008 titled Bail, Detention, & Felony Case Outcomes and Pretrial Detention and Case Outcomes, Part 2: Felony Cases by Mary T. Phillips. While it deals with felonies rather than misdemeanors, it states that “A conviction was more likely in cases with a defendant who was detained, as opposed to released, at arraignment. Citywide, 59% of cases with a released defendant ended in a conviction, compared to 74% of a detained defendant.”

GPOAccess Out, FDSys In

Since 1995 GPO Access has been the online platform on which the federal government has made information accessible on the Internet. GPO Access relied on WAIS (Wide Area Information Servers), an antiquated pre-web technology that made it difficult for the average user to search and locate information. At the end of 2010, GPO will sunset GPO Access and migrate its content to the Federal Digital System (FDsys – pronounced effdeesis). FDsys, an advanced digital system that will enable GPO to manage Government information from all three branches of the Federal Government, will be a powerful tool to access online Federal information as well as a preservation repository for Federal agencies.

FDSys makes electronically accessible the Federal Register, the Code of Federal Regulations, the Compilation of Presidential Documents, Congressional Bills, Congressional Documents and Prints, the Congressional Record, the Congressional Directory, the Economic Report of the President, the Federal Budget, Public and Private Laws, and the United States Code, and more. The new platform will offer greater functionality than GPO Access, including the ability to search across multiple collections with keyword searches. GPO promises that all the data in FDSys will remain freely electronically accessible.

For information on how to use FDsys, select the Help link to the right of main search box or see the PDF copy of the 97-page Federal Digital System (FDsys) Search User Manual. There are also video tutorials on how to use FDSys:

• 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.

Historic District in Brooklyn

If the New York City Landmarks Preservation Commission is successful with one of its latest proposals, there will be a new Borough Hall Skyscraper Historic District in Downtown Brooklyn adjacent to Brooklyn Law School. This map of the proposed district shows that the law school directly borders the area.











Unlike other recently landmarked brownstone Brooklyn areas, this new district will have buildings within its boundaries that are multi-story office buildings, if not skyscrapers. The Landmarks Preservation Commission says the proposed Borough Hall Skyscraper Historic District, with approximately 20 properties, “is characterized primarily by tall commercial buildings erected in the late nineteenth and early twentieth centuries. Designed in a range of styles from the Romanesque-Revival to the Beaux-Arts to the Modern, the structures in the study area represent the work of an impressive group of architects including Helmle, Huberty & Hudswell; McKenzie, Voorhees & Gmelin; George L. Morse; the Parfitt Brothers; Schwartz & Gross; H. Craig Severence; and Starrett & Van Vleck. It contains many of the borough’s most architecturally distinguished business buildings, as well as its two most significant civic structures—the Brooklyn Municipal Building and the individually-designated Brooklyn Borough Hall.” The district, not yet formally designated, was an item proposed for the Commission‘s calendar at Public Meeting Item No. 2 on October 26, 2010.

The Brooklyn Law School Library has in its Reference collection Guide to New York City Landmarks by Andrew Dolkart (Call #F128.18 .D65). The publisher is the New York City Landmarks Preservation Commission, the New York City agency responsible for protecting and preserving New York City's architecturally, historically, and culturally significant buildings. The Commision, established in 1965 after the destruction of the original Penn Station, has 11 commissioners, including at least three architects, a historian, a realtor, a planner or landscape architect, as well as a representative of each borough. Litigation regarding the actions in the Penn Central case reached the US Supreme Court in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), a landmark decision on compensation for regulatory takings.

17 Years of DADT

Congress has not enacted the Military Readiness Enhancement Act in the House and Senate version of bills (H.R. 1283 and S. 3065) to repeal Don’t Ask, Don’t Tell and replace it with a policy of nondiscrimination on the basis of sexual orientation. Instead, it will address the issue as part of the larger National Defense Authorization Act for Fiscal Year 2011 in H.R. 5136 and S.3454. The issue of gays in the military is very much in the news as today marks the 17th anniversary of the passage of the National Defense Authorization Act for Fiscal Year 1994 (P.L. 103-160). Subtitle G (Policy concerning homosexuality in the armed forces) of that law is codified at 10 U.S.C. § 654. The history of the passage of the current law is more fully described in an item in SARA, Brooklyn Law School Library's catalog, a recent Congressional Research Service report called “Don’t Ask, Don’t Tell”: The Law and Military Policy on Same-Sex Behavior by David F. Burrelli. Today the Pentagon released its Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”.

“Don’t Ask, Don’t Tell“, which is not the name of the law, is the policy proposed by Bill Clinton during the 1992 presidential campaign to lift the ban on gays in the military. Opponents of gays in the military including senior military officials were successful in defeating President Clinton’s proposal by including Section 654 which bipartisan majorities in Congress passed in 1993 and President Clinton signed into law on November 30, 1993. Opponents prefer to call the law "The Military Personnel Eligibility Act of 1993." See Statement of Elaine Donnelly, President of the Center for Military Readiness (CMR), an anti-gay group opposing changes to Section 654. Among the board members of CMR is noted American conservative activist Phyllis Schaffley.


The "Don't Ask, Don't Tell" policy is not contained in any Presidential Executive Order but is implemented by two Department of Defense Directives: DoD Instruction 1332.14 (“Enlisted Administrative Separations”) and 1332.30 (“Separation of Regular and Reserve Commissioned Officers”). These directives stopped the military from asking about sexuality in recruitment forms and interviews but did not stop investigations into whether those serving in the military were gay. According to the Servicemember's Legal Defense Network, an advocacy organization for LGBT military personnel, the Pentagon has dismissed more than 12,500 service members because of their sexual orientation since 1994.

$5 Trillion Tax Cuts

A recently revised Congressional Research Service report dated October 27, The Bush Tax Cuts and the Economy by Thomas L. Hungerford, states a higher total cost of permanently extending all of the Bush tax cuts to $5.048 trillion over the next ten years. The revised amount is significantly higher than the $2.8 trillion figure CRS reported in September as the new report takes into account the cost of servicing the debt due to lost revenue and indexing the alternative minimum tax (AMT) to inflation. See chart below for details:

The September CRS report explained the details of the Bush tax cuts enacted in 2001 and 2003 and the effects of their expiration on the economic recovery in a summary which reads in part:

A series of tax cuts were enacted early in the George W. Bush Administration by the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA; P.L. 107-16) and the Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA; P.L. 108-27). These tax cuts, which are collectively known as the Bush tax cuts, are scheduled to expire at the end of 2010. Beginning in 2011, many of the individual income tax parameters (such as tax rates) will revert back to 2000 levels. The major tax provisions in EGTRRA and JGTRRA that are part of the current debate over the Bush tax cuts are the reduced tax rates, the reduction of the marriage penalty (and increase in the marriage bonus), the repeal of the personal exemption phaseout and the limitation on itemized deductions, the reduced tax rates on long-term capital gains and qualified dividends, and expanded tax credits. This report examines the Bush tax cuts within the context of the current and long-term economic environment. . . . . The Obama Administration has proposed allowing the Bush tax cuts to expire for high income taxpayers and permanently extending the tax cuts for middle class taxpayers. Compared to permanently extending all of the Bush tax cuts, this proposal is projected to increase tax revenues by $252 billion over five years and by $678 billion over 10 years, but still leaves federal debt on an unsustainable path. A temporary extension of the Bush tax cuts could provide time for Congress to consider tax reform and also provide a deadline to complete deliberations. Furthermore, allowing the tax cuts targeted to high income taxpayers to expire as scheduled could help reduce budget deficits in the short-term without stifling the economic recovery.

Anniversary of Gettysburg Address

The 147th anniversary of the Gettysburg Address is as good a time as any to reflect on the 273 words (more or less, depending on the version) in the speech that Abraham Lincoln gave at the dedication of the Soldiers’ National Cemetery at Gettysburg, PA on November 19, 1863. With more than 7,500 killed, Gettysburg became hallowed ground in that crucial engagement. The speech took a mere two minutes to deliver but these eloqent words still resound today:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate -- we cannot consecrate -- we cannot hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

This video from the Library of Congress explains more about the speech.



A related law review article, C. Steven Bradford, The Gettysburg Address as Written by Law Students Taking an Exam, 86 Nw. U. L. Rev. 1094 (1992), is timely as Brooklyn Law School students begin the reading and exam period after the Thanksgiving break. The classic exam mistakes that Prof. Bradford lists in his parody offer a little study break reading. The article is available on HeinOnline.

Episode 060 – Conversation with Jameson Dempsey, Class of 2011

Episode 060 – Conversation with Jameson Dempsey, Class of 2011.mp3

In this podcast, Jameson J. Dempsey, BLS Class of 2011 and Editor-in-Chief of the Brooklyn Law Review, talks about his experience as a member and editor of the oldest student-run legal periodical at Brooklyn Law School. The Law Review celebrated its 75th anniversary earlier this year. The first of the four issues of Volume 76 is set for publication in the next few weeks. Each issue has articles written by legal scholars, practitioners and judges, as well as notes and comments written by student members. Jameson discusses his own student note, A Right of Confrontation for Competition Hearings before the European Commission, 75 Brook. L. Rev. 1489 (Summer 2010), where he addresses implementing a right of confrontation jurisprudence in cartel enforcement proceedings in the European Union. He also offers suggestions for 1Ls who are considering joining one of the law journals at Brooklyn Law School.

US Statutes and Legislative History

Questions on statutory research and federal legislative history are among the most frequent at the Brooklyn Law School Library Reference Desk. The library receives Federal public and private laws in "slip" (paper) form and shelves the slip laws chronologically by public or private law number. The slip laws are arranged on the shelves in the Statutory Collection on the second floor. Other print sources include the United States Statutes at Large, 1845- (Stat. – KF 50 U658), the United States Code Congressional and Administrative News ("USCCAN") (Stat. – KF 48 W45) USCCAN includes the session laws published in United States Statutes at Large, selected reports, Presidential signing statements, and Presidential veto messages, and references to other legislative history materials. It is arranged by public law number.

There are two commercial codifications of US statutes: (1) West’s United States Code Annotated (Stat. – KF 62 1927 W45) which offers West digest topic and key number references and provides references to West publications such as USCCAN and Corpus Juris Secundum as well as citations to legislative history materials published in USCCAN; and (2) Lexis’ United States Code Service (Stat. – KF62 1972 .L38) which includes annotations from courts, and provides references to Lawyers Cooperative publications such as American Jurisprudence and American Law Reports. The official United States Code (Stat. – KF 62 1994 A2), which does not include annotations from courts, is available on the GPO Access website.

Also on the internet are recently enacted laws at THOMAS which includes public laws from the 93rd to the 111th Congresses. The U.S. Government Printing Office Web Site includes public laws from the 104th to the 111th Congresses. To find compiled legislative histories in the BLS Library collection, students can search SARA using Library of Congress Subject Headings for Legislative History Research, for example, Legislative Histories -- United States; Legislative Histories -- United States – Bibliography. The Bluebook Rules for legislative materials are found in Rule 12 (Statutes) and Rule 13 (Legislative Materials).

Students interested in learning more about legislative history research can register for a Hein Legislative History Webinar taking place on Thursday, November 18 2:00pm to 2:45pm. Registration on the use of Hein’s database materials for conducting legislative histories is free at this site.

Miranda Rights of Juveniles at School

Few decisions have generated as much controversy as the ruling in Miranda v. Arizona, 384 U.S. 436 (1966) which relied on the fifth amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. Over the years the Supreme Court has made a number of revisions to the Miranda warnings. Last term, the Court placed limits on the Miranda rights in three cases: Berghuis v. Thompkins, (ruling that suspects must explicitly tell police they want to remain silent), Florida v. Powell (allowing police officers to vary the wording of the warning) and Maryland v. Shatzer (allowing a second round of questioning of a suspect who had invoked his rights where two weeks had passed since his release from custody). These rulings will change how police, lawyers and criminal suspects interact and are viewed as an attempt to limit the rights that Americans have become used to since the Court ruling in Miranda.

The Supreme Court is not likely to eliminate the requirement that police officers give suspects a Miranda warning. Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers, has stated that “It’s death by a thousand cuts. For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

This term, the Court has another opportunity to review the Miranda holding in the case of J.D.B. v. North Carolina after it granted certiorari on November 1. The Court will be reviewing a North Carolina Supreme Court decision that courts should not consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes. The case involves a 13-year-old, special education middle-school student whom police interrogated in a closed conference room in connection with a string of neighborhood burglaries.

The Brooklyn Law Library’s most recent New Book List includes The Miranda Ruling: Its Past, Present, and Future by Lawrence S. Wrightsman and Mary L. Pitman (Call #KF9625 .W75 2010). The book examines the state of interrogations and the state of the law before Miranda,, the purposes and nature of the decision, and proposes recommendations for reinstituting the original goals. It examines four problems with the implementation of Miranda and suggests remedies to have it achieve its original purpose.

• The justices, in placing restrictions of the questioning of suspects, limited these rights only to those suspects who were "in custody" vague to the layperson.
• The Miranda warnings may not be fully understood by many suspects. There is no standardization of what is said; there are literally thousands of different versions of "the" Miranda warnings in use by different police departments in the United States.
• Police training manuals, while recognizing the right to a "Miranda warning," have developed many ways to circumvent giving the warnings or ignoring a response in which a suspect does decide to remain silent or ask for an attorney.
• In the 40 years since the Miranda law was established, the Supreme Court and lower courts have made decisions eroding their application.

Bloggers and Defamation

This semester, the Advanced Legal Research at Brooklyn Law School used a fact pattern involving defamation in online blogs as an in-class example to demonstrate research strategies for finding primary and secondary legal sources. Now as the semester is ending, a Spanish language news item from The Press and Society Institute (IPYS) reports that on October 29, 2010, a Peruvian court sentenced journalist and law school graduate José Alejandro Godoy, who runs the blog Desde el Tercer Piso (From the Third Floor), to three years in prison, a fine of $107,000 (300,000 soles) and 120 days of social work for "aggravated defamation" of a politician.

Godoy was convicted for an April posting in which he linked to several media outlets that discussed criminal accusations against former minister and congressman Jorge Mufarech Nemy. Godoy's blog post criticized Nemy as a political “star” whose “shining achievements” were tax evasion, pursuing favorable treatment for his companies, and negotiating an advantageous agreement with an allegedly corrupt person from the television news business. The court’s opinion justifies the conviction based on the “star” and “shining achievements” wording, rather than the assertions about tax evasion and favors, for which Godoy provided links to journalist reports. The sentence, posted in Spanish on Scribd, has generated political and media criticism and IPYS called the ruling "unconstitutional and without precedent" and without legal merit.

For more details on the case, see Peru: Blogger Sentenced for Defamation of Former Politician written by Juan Arellano and translated by Stephen Cairns at Global Voices, an international community of bloggers who report on blogs and citizen media from around the world.

The Brooklyn Law School Library has in its collection Law of the Internet by George B. Delta and Jeffrey H. Matsuura (Call #KF390.5.C6 D45 2009), a two volume set with these chapters: v. 1. Regulation of access, interoperability, and services; Jurisdictional issues in cyberspace; Antitrust; Intellectual property; Copyright; Patents; Trademarks; Privacy; Computer security; v. 2. Defamation; Obscene and indecent materials; Law of electronic contracts; E-business: the digital marketplace; Tax issues and electronic commerce; Export controls; E-government.

Legal Style Guides

In addition to The Bluebook: a Uniform System of Citation, 19th edition (Call #KF245 .B58) and the ALWD Ctation Manual: a Professional System of Citation, 4th edition (Call # KF245 .A45 2010), law students writing seminar papers, journal notes, or memos for a legal writing course can use other Brooklyn Law School Library resources to answer style and grammar questions.

The Chicago Manual of Style, 15th edition (Call #Z253 .U69 2003), one of the leading reference books on style, grammar and publication in the US, is available in print at the reference desk. BLS Library also has a subscription to the online version available to BLS students and faculty.

The Redbook: A Manual of Legal Style by Bryan A. Garner (Call #KF250 .G375 2006) is on reserve at the Circulation Desk along with Just Writing: Grammar, Punctuation, and Style for the Legal Writer by Anne Enquist (Call #KF250 .E57 2009. Both of these style guides provide grammar and style advice specific to legal publications.

For an online overview, CALI has two punctuation and grammar lessons. Punctuation and Grammar Basics for Law Students covers fragments and run-on sentences, commas, semi-colons, verb agreement and misplaced modifiers. Punctuation and Grammar: Advanced covers colons, hyphens and dashes, passive voice, parallelism, and misplaced modifiers. See also Introduction to Basic Legal Citation (online ed. 2010) by Peter W. Martin which reflects changes appearing in the third edition of the ALWD Citation Manual, published in 2006 and the edition of The Bluebook published in 2005.

Those writing in international law can consult the LibGuide Developing a Paper Topic: International & Comparative which Reference Librarian Jean Davis created. It has a “Source-checking Guides” a tab that cites the Guide to Foreign and International Legal Citation, 2d ed., produced by N.Y.U. Journal of International Law and Politics (Call #K 89 .G85 2009) and the International Citation Manual published by the Washington University Global Studies Law Review with a link to guide sections for specific countries.

New York practicitioners will want to consult the Official New York Law Reports Style Manual (2007), once popularly known as the "Tanbook", prepared by the Law Reporting Bureau of the State of New York. The editors of St. John's Law Review publish New York Rules of Citation (5th ed. 2005) which applies the Bluebook rules to New York examples.

LA Dodgers and Brooklyn Burgers

More than 50 years ago, the Dodgers left Brooklyn but, accordiing to a recent Notice of Opposition that Los Angeles Dodgers LLC filed in the U.S. Patent and Trademark Office, the team still wants to keep the city's name. The controversy began in June of 2009 when a Brooklyn-based meat supplier, A. Stein Meat Products, Inc., applied for a logo for its Brooklyn Burger hamburger patties. Now the LA Dodgers team, which has marketed Brooklyn Dodgers memorabilia and novelty items and maintains several trademark registrations for Brooklyn Dodgers marks, argues that the logo will lead consumers to believe that the meat products are associated with the old Brooklyn Dodgers baseball team.

The Dodgers have been protecting their rights to the Brooklyn Dodgers marks since the 1980s when they argued that the logo for The Brooklyn Dodger, a Brooklyn restaurant, was confusingly similar to the baseball team’s marks. In Major League Baseball v. Sed Non Olet Denarius, 817 F. Supp. 1103, Judge Constance Baker Motley found that the Los Angeles Dodgers made no effort for a quarter-century to protect the Brooklyn name, and added that the Brooklyn bar owners had promptly told the Califonia club they were using the name. Judge Baker's ruling was later vacated pursuant to a settlement. For more, see Howard W. Brill, Name of the Departed Team: Who Can Use It, 15 Whittier L. Rev. 1003 (1994) available in HeinOnline.

A. Stein's website says it will use the Brooklyn Burger logo on apparel including hats and polo shirts, and that Brooklyn Burger is the “official burger enjoyed by fans” at stadiums hosting the Brooklyn Cyclones, the New York Mets, and the New Jersey Nets. A. Stein’s answer is due December 4, 2010. Likely issues in the proceeding will be whether the Dodgers actually used their marks continuously and whether baseball apparel, beverage containers, printed matter and novelty items have anything to do with burger patties.

A Legal Strategist's Guide to Trademark and Appeal Board Practice edited by Jonathan Hudis (Call #KF3193 .L44 2010) is on reserve in the Brooklyn Law School Library collection. The publisher, American Bar Association. Section of Intellectual Property Law, describes it as an essential resource for every trademark practitioner's library. It has an analysis of each facet of Board practice, including: inter partes proceedings (such as Oppositions, Cancellations, and Concurrent Use Proceedings); ex parte appeals to the Board from refusals to register marks; disclosures and discovery; motion practice; presenting one's evidence at trial; the use of experts; briefs on final hearing and oral argument; appeals from final Trademark Trial and Appeal Board decisions; settlement, alternative dispute resolution, and accelerated case resolution; and ethical issues when practicing before the Board.

Episode 059 – Conversation with Anita Aboagye-Agyeman

Episode 059 – Conversation with Anita Aboagye-Agyeman.mp3

This pod cast features Anita Aboagye-Agyeman, Brooklyn Law School Class of 2011 discussing her recent appearance before the United States Court of Appeals for the Armed Forces in the case of U.S. v. Jones. The session took place at Brooklyn Law School on Tuesday, November 2, 2010. The Court, which exercises appellate jurisdiction over members of the armed forces on active duty, visited Brooklyn Law School as part of Project Outreach, a program that promotes public awareness of the Court and the military criminal justice system. Anita argued on behalf of the Appellant William T. Jones III on two issues before the Court: (1) Whether the military judge violated appellant’s rights under the sixth amendment and rule for courts-martial 701 by denying appellant the opportunity to review the evidence before he pled guilty; and (2) Whether the military judge erred by denying appellant the opportunity to review the evidence before he pled guilty and appellant’s plea was therefore improvident.

In the conversation, Anita acknowledges the help that she received from the Moot Court Honor Society, BLS Law Professors Robert Pitler and Neil P. Cohen. She also thanked BLS Reference Librarian Karen Schneiderman who directed Anita to a helpful secondary source in the BLS Library collection: Military Criminal Justice: Practice And Procedure (7th Ed.) by David A. Schlueter (Call #KF7620 .S34 2008).

Blekko vs. Google

Move over, Google! There is a new search engine in town: Blekko, like Google, may not have the prettiest name, is creating interest with its human moderated search results. Blekko uses a slashtag system of searching to filter out spam and may well challenge Google. The site has been in beta-testing and, according to a NY Times article, A New Search Engine, Where Less Is More, it differs from other search engines by seeking to filter out spam-like sites which often list unhelpful results at the top of the result list. Blekko editors have identified research areas that are vulnerable to spam results (health and medical information, recipes, cars, travel, song lyrics, finance and college searching). Nothing so far about legal research using search engines which are often populated with a great deal of lawyer advertising. Blekko’s “slashtag” search option allows users to filter irrelevant results as shown in this comparison at Search Engine Land. Without many of the features such as advanced search and case law, the new search engine is no match for Google for now. But it allows a choice between seeing search results ordered by relevance or by date. The default choice is /relevance. Select /date and the results will be ordered by keyword match with the most recent results shown first, and no relevance weighting given to the search terms.

Rich Skrenta, the CEO of Blekko, described as ”wikipedia meets search” said: “Today is the first step in a process of building a volunteer army at Blekko that will eventually slash spam from search and deliver the most relevant results.” The new search engine uses slashtags to give queries more specified results. A slashtag will allow Blekko to search a specific part of the internet. A Huffington Post article, Blekko Search Engine to Rely on the Human Touch uses a search for information about the iPad to illustrate the difference. Instead of querying "iPad," adding the slashtag "AppleBlogs" (typing in "iPad/AppleBlogs") returns search results from a limited set of sites. Without using the slashtag, the top five results for "iPad" returned by Blekko are from Apple.com, CrunchBase.com, Wikipedia, Engadget, and CNET. By comparison, using the slashtag "AppleBlogs," the top five results are from TUAW.com, TheAppleBlog.com, MacRumors.com, TUAW.com, and MacNN.com. The same search with Google lists the top results from Apple.com, Wikipedia, CNET, and CrunchGear.com.

Here is a Vimeo video from Blekko that explains their slashtag system.

Witchcraft in Print

In time for Halloween, the first floor library display case has a number of books from the library collection on the Salem Witch Trials and earlier trials of witches in England. Brooklyn Law School Associate Librarian Linda Holmes has included these items:

The Salem Witch Trials: A Reference Guide by K. David Goss (Call #KFM2478.8.W5 G67 2008), interpretations of the trials from the earliest historians to late 20th century analysis with relevant and instructive black-and-white photos and illustrations. Fifty court-related primary documents, selectively detailed biographies of key trial figures, an annotated bibliography of primary and secondary sources.

Witch-Hunting In Seventeenth-Century New England: A Documentary History 1638-1693 edited by David D. Hall (Call #BF1575 .W62 1999), a collection of court depositions and excerpts from the diaries and letters of contemporaries on witch-hunts seen through the eyes of the accusers, the victims, abd the judges revealing the emotions in communal life and family relationships within New England's small towns and villages.

The Salem Witchcraft Trials: A Legal History by Peter Charles Hoffer (Call #KFM2478.8.W5 H645 1997), an examination of the Salem witch trials where the author shows how rights we take for granted today did not exist in colonial times and also demonstrates how these cases relate to current instances of children accusing adults of abuse.

Witch-Children: From Salem Witch-Hunts to Modern Courtrooms by Hans Sebald (Call #BF1576 .S43 1995), a study of the participation of small children and adolescents in witch trials, whether as the accused or as the accusers, determining the fates of many unsuspecting men and women. The author maintains that the classic "Salem syndrome" is not mere past history but often reenacted in modern courtrooms where children accuse others of molesting or seducing them, with or without satanic ritual, with a public mind-set predisposed to believe them.
A Trial of Witches: A Seventeenth Century Witchcraft Prosecution by Ivan Bunn and Gilbert Geis (Call #KD371.W56 G45 1997), a case study of the witchcraft trial of two women in 1662 Lowestoft, England, including a description of the accusers and prosecutors and an analysis of the trial itself, which was cited as a precedent in the Salem witchcraft trials.

Witchcraft & Witch Trials: A History of English Witchcraft and its Legal Perspectives, 1542 to 1736 by Gregory Durston (Call #KD371.W56 D87 2000), a book of scholarship showing that the English persecution of witches was overwhelmingly a secular legal phenomenon, rather than the result of popular or ecclesiastical action.

Witchcraft in England, 1558-1618 by Barbara Rosen (Call #BF1581 .W79 1991), a rare collection of documents - pamphlets, reports, trial accounts, and other material - that describes the experience, interpretation, and punishment of witchcraft in the late sixteenth and early seventeenth centuries.

Costly Lessons of Campaign 2010

The 2010 election campaign is drawing to an end with money playing a greater role than ever. The January 21, 2010 US Supreme Court decision in Citizens United v. FEC opened the way for more campaign spending on TV commercials by corporations and labor union. The Center for Responsive Politices predicts that by Election Day on November 2, this year's midterm elections for the House, Senate, and state governors will have cost nearly $4 billion. The Public Campaign Action Fund estimates that combined House and Senate candidate fundraising and spending will near $2 billion, an average of more than $4 million for each of the approximate 470 open seats. This Wordle visual map of campaign cash used words from 10 articles by Media Consortium members on the topic published from October 25-29.

Whether the voting public has learned any lessons from all this spending is questionable as this year's campaign has been more entertainment than education. In its collection, the Brooklyn Law School Library has the latest issue of the Election Law Journal, Vol. 9, No. 3 (2010) (Call #K5 .L33) with Should Election Campaigns Be Deliberative? by Joseph Bessette.

The article is a book review of What are Campaigns For? The Role of Persuasion in Electoral Law and Politics by James A. Gardner (Call #JK2281.G37 2009) in which the author states that campaigns do not shape public opinion but instead measure it and that election campaigns are "inadequate, undignified, and beneath not only our aspirations but also our capacity as a democratic people seeking to shape our own collective destiny in the world.” The book is an historical account of public participation in the electoral process in the US. The history dates from the early 18th Century when people were “incompetent to evaluate either public policy or the job performance of hierarchically superior government officials” to the Progressive Era of reform from the 1890s to the 1920 when candidates campaigned openly for office and sought to persuade voters of the wisdom of their principles and policies.

The increase in fundraising and spending in election campaigns is significant. The real test of democracy is voter turnout. The New York City Board of Elections has an online Poll Site Locator to find polling places throughout the city. Polling Places are open on Election Day 6:00am to 9:00pm. In addition to choosing Senators, Representatives, Governor, and Attorney General, voters have a choice on two citywide ballot questions approved by the New York City Charter Revision Commission. The questions appear on the back of the ballot. Question 1 is on restoring a limit of two consecutive terms for Mayor, City Council member, Public Advocate, Borough President and Comptroller. Question 2 has seven subparts on Elections and Government Administration. See the 2010 Ballot Questions here.