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.