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.