Happy Holidays

With the coming Holiday Season, the BLS Library Blog will be away until the New Year. Brooklyn Law School and the BLS Library will close on Saturday, December 24 and reopen on Tuesday, January 3. Looking back at the history of the celebration of the Christmas holidays in the US shows that in early America, work went on as usual on Christmas day. Puritan influence in parts of New England stemming from the time of Cromwell in England discouraged Christmas celebration. See Nigel Jamieson, Oliver Cromwell – The Grinch That Stole Christmas, 26 Statute L. Rev. 189 (2005) (full text available in WestlawNext at this link). Before the Civil War, the North and the South were divided on the issue of Christmas. Many northerners thought it was sinful to celebrate Jesus' birth or to put up a decorated tree. Most southerners, however, enjoyed the traditions of Christmas. Alabama was the first state to make it a legal holiday in 1836. Ohio did not legalize Christmas until 1857.

Christmas Day did not become a federal holiday until 1870 when President Ulysses S. Grant declared it a legal holiday. Rep. Burton Chauncey Cook (Ill.) introduced HR 2241 in the 41st Congress to make the day a holiday in the District of Columbia. After the Senate and the House agreed on the final wording, President Grant signed it into law on June 28, 1870. The act (a facsimile of which is available at the Library of Congress Century of Lawmaking for a New Nation website here) reads:

An Act making the first Day of January, the twenty-fifth Day of December, the fourth Day of July, and Thanksgiving Day, Holidays, within the District of Columbia. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following days, to wit: The first day of January, commonly called New Year's day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving, shall be holidays within the District of Columbia, and shall, for all purposes of presenting for payment or acceptance of the maturity and protest, and giving notice of the dishonor of bills of exchange, bank checks and promissory notes or other negotiable or commercial paper, be treated and considered as is the first day of the week, commonly called Sunday, and all notes, drafts, checks, or other commercial or negotiable paper falling due or maturing on either of said holidays shall be deemed as having matured on the day previous. APPROVED, June 28, 1870 by President Ulysses S. Grant

Plan B Contraceptive Litigation

Earlier this month, the Department of Health and Human Services in a memorandum blocked a Food and Drug Administration recommendation to make Plan B available without a prescription to women under 17. The executive decision has drawn a response from a group of 15 US Senators who have sent a letter to HHS seeking the specific rationale and data that went into the decision. Now, US District Court for the Eastern District of New York Judge Edward R. Korman, Brooklyn Law School Class of 1966, has invited the Center for Reproductive Rights to file a motion to reopen its case, Tummino v. Hamburg, which accuses the FDA of failing to respond to a 2001 petition to remove age restrictions on Plan B and its generic form. The Center for Reproductive Rights press release states that “The FDA has essentially been holding women’s reproductive health hostage to political calculations.”

The CRR, with the Association of Reproductive Health Professionals and National Latina Institute for Reproductive Health, brought suit challenging the FDA’s decision to restrict access to emergency contraception. In 2009, Korman issued an Order ruling in favor of the women’s groups and ordered the FDA to act within 30 days to extend over-the-counter access to 17-year-olds. Judge Korman rejected a request to hold the Food and Drug Administration in contempt of court over its policy on the emergency contraceptive Plan B but said he would consider reviewing the government's refusal to make it easier for girls and women to get the drug. The judge will hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription. He also instructed advocacy groups to file the appropriate legal motions, specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit. For more information, see the Bloomberg article on this story.

Expert Evidence and the Confrontation Clause

This week, the US Supreme Court heard oral arguments in Williams v. Illinois on whether a defendant’s rights were violated with the admission of expert testimony about the results of a DNA test where there was no opportunity to confront the actual analysts. Defendant’s attorney, in appealing a decision of the Illinois Supreme Court upholding the rape and kidnapping conviction, argued that without an analyst from the lab present to testify about the DNA results, the defendant’s rights were violated, especially since the lab tests themselves were not entered into evidence. The Illinois Supreme Court ruled that there was no violation of the defendant’s confrontation right because the findings of the lab report were being admitted only to explain the expert’s opinion about the results.

Since the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), Confrontation Clause jurisprudence has been an active area of case law. Earlier this year, the Supreme addressed the Confrontation Clause and lab tests in two cases: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. The Court ruled that the Confrontation Clause barred the testimony of a surrogate analyst about testimonial statements of the certifying analyst in the forensic report. But the Williams case differs from those cases because instead of introducing the report of the analyst who performed the DNA test, the state of Illinois called another analyst to discuss it. Without cross examination of the person who conducted the test, there remains a question whether the test was performed according to proper procedures. Having an expert who did not actually perform the test discuss the report asks the jury to assume the tests were performed correctly.

The briefs related to the Williams case are available at SCOTUSblog including an amicus brief of the District Attorney of New York County arguing against an “all technicians must testify” rule for New York’s more than 100,000 criminal cases each year as the associated “costs and logistical hurdles would make it all but impossible to prosecute them successfully.” It is natural for prosecutors to ask the courts to make their jobs easier using arguments of scarce resources. The administration of justice is costly but failing to enforce basic procedural rights is costlier. For more on this topic, see the ABA Journal article The Latest Test on the Confrontation Clause by Erwin Chemerinsky.

On the subject of expert evidence, the Brooklyn Law School Library has in its collection the second edition of The New Wigmore: A Treatise on Evidence: Expert Evidence by David H. Kaye, etc. (Call # KF8935 .W486 2011), one volume of a five volume authoritative series that presents the same quality of research, thought, and analysis as the original Wigmore and a present-day counterpart to the seminal evidence treatise.

Human Rights Day 2011

December 10th marks Human Rights Day 2011, an annual celebration that began in December 1950, when the General Assembly declared a resolution inviting member states to celebrate the day as they saw fit. Sponsored by the United Nations Office of the High Commissioner for Human Rights, Human Rights Day incorporates events, media, and stories about the impact of human rights around the world. The day is when we remember the creation 63 years ago of the Universal Declaration of Human Rights. Some of the rights embodied in the Declaration include the right to be free of torture, the right equal protection before the law, the right to marriage, and the right to education. This year, focuses on women's rights and opportunities.

This year, following a year of protest in countries from Tunisia to Cairo to the Occupy movement, the theme of 2011 recognized the significance of social media and technology in assisting human rights defenders in new ways. Today, the UN High Commissioner for Human Rights hosted a global conversation on human rights through social media. Earlier this week, US Secretary of State Hillary Clinton offered Remarks in Recognition of International Human Rights Day addressing the Human Rights of LBGT persons globally. Today’s focus of the US Library of Congress 2011 Human Rights Day Celebration was Women’s Rights and Opportunities.

Brooklyn Law School Library has an extensive collection of material both in print and online dealing with different aspects of human rights. See, for example, Women's Human Rights and Culture: From Deadlock to Dialogue by Rikki Holtmaat and Jonneke Naber (Call # K644 .H65 2011). The summary of this books states that “in all parts of the world, the implementation of women's human rights is seriously being hindered by gender stereotypes, religion, custom or tradition, in short by 'culture'. Culture is increasingly being used as an excuse to commit serious violations of these rights. It is also brought forward as the reason why governments refuse to implement them, arguing that their culture forces them to accept limited interpretations of international obligations in this area, or to reject such obligations altogether. This book provides women's human rights advocates with dissuasive arguments and effective strategies to avoid a deadlock between on the one hand upholding the principle of universality of human rights, and on the other hand the right to preserve and express one's culture.”

Law of Juries

The Second Circuit Court of Appeals in U.S. v. Dugan, 2011 WL 6015752, upheld the conviction of two men for obstructing the entrances to a Planned Parenthood clinic, interfering with clinic staff and patients, in violation of the Freedom of Access to Clinic Entrances (FACE) Act. The defendants were charged with a Class B misdemeanor under 18 U.S.C. §248(a) which makes it a crime to engage in nonviolent physical obstruction of a reproductive health facility. First time offenders are eligible for a prison sentence of up to six months and a $10,000 fine. The statute which dates from 1994 is the subject of an ALR annotation, Validity, Construction, and Application of Freedom of Access to Clinic Entrances Act (FACE), 134 A.L.R. Fed. 507, (available in Westlaw).

The conviction followed a one-day bench trial held last year in the US District Court for the Southern District where Judge Robert W. Sweet found both men guilty and ordered them to serve four-month prison sentences. Defendants appealed arguing they were entitled to a jury trial. The per curiam opinion stated that “The right to a jury trial is guaranteed by Article III, § 2 and the Sixth Amendment of the U.S. Constitution. However, the Supreme Court has long held that this right only applies to prosecutions of “serious,” and not “petty,” offenses.” For more detail, see the NY Law Journal article on the decision.

The Brooklyn Law School Library collection has The Law of Juries by Nancy Gertner and Judith Mizner with chapters: Right to a jury trial; Compositional challenges; The law of voir dire; Peremptory challenges; Venue; Jury nullification; Dealing with jury conduct/misconduct; The structure of the jury; Issues arising from jury deliberations.

Summer Law Student Internships

Brooklyn Law School students interested in summer internships should know that the Center for Court Innovation is accepting applications for its Summer 2012 Law School Internship Program. This is an unpaid internship, which will run for eight weeks to ten weeks, commencing in late May or early June and concluding in August. Founded as a public/private partnership between the New York State Unified Court System and the Fund for the City of New York, the Center for Court Innovation is a non-profit think tank that helps courts and criminal justice agencies aid victims, reduce crime and improve public trust in justice. The Center combines action and reflection to spark problem-solving innovation locally and nationally. In New York, the Center functions as the court system’s independent research and development arm, creating demonstration projects that test new ideas, such as community courts, drug courts, reentry courts, domestic violence courts, mental health courts, and juvenile justice initiatives.

Interested applicants should submit a letter of interest, a resume, the names and telephone numbers of two professional references, and a writing sample (limit 5-7 pages) in one document (a PDF is recommended) to legalinternships@courtinnovation.org no later than December 23. Indicate in the reference line one or two of the following areas of interest: drug courts, mental health courts, juvenile justice policy, education advocacy, program evaluation, community courts, community violence prevention.

Legal Writing: Less is More

Law students often write lengthy papers and exams answers believing more is better. But readers, including both law professors and judges, take brevity seriously. See for example the case of Mylward v. Weldon, 21 ER 136 (1596), where the Chancery Court of England punished an aspiring lawyer and ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it needed. He ordered the pleader be taken to the Fleet prison and that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days.

The complete text is available in a facsimile at this link. This tale of the bareheaded lawyer gives legal writers a vivid image of what not to do. The Second Circuit, citing the case in Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (2d Cir. 1995), stated that the plaintiff's brief "stirs nostalgia for the rigors of the common law."

The Brooklyn Law School Library has in its reserve collection Thinking Like A Writer: A Lawyer's Guide To Effective Writing And Editing by Stephen V. Armstrong and Timothy P. Terrell (Call #KF250 .A76 2009) which consists of six parts including Chapter 10 - Words: Precision and Brevity. The book has exercises, examples, and writing do's and don'ts, and gives step-by-step instruction on the specialized techniques to draft clear and persuasive legal documents.

Cloud Computing and Privacy

"Cloud computing" which Webopedia defines as a "type of computing that is comparable to grid computing, relies on sharing computing resources rather than having local servers or personal devices to handle applications. The goal of cloud computing is to apply traditional supercomputing power (normally used by military and research facilities) to perform tens of trillions of computations per second." Cloud computing makes it possible to store data and software platforms and services to be stored offsite in the "cloud". There are a number of risks to storing sensitve information in the cloud. An article on Politico reports on the growing international concern with U.S.-based cloud computing services due to privacy fears.

Two recent papers on the impact of the USA Patriot on US cloud computing providers act are worth reading.

• Law Enforcement and Cloud Computing, an article Law firm in discusses two perspectives:“From an EU perspective, concerns have recently been voiced about the access to data by US law enforcement agencies under the USA PATRIOT Act. However, EU law enforcement agencies also have broad powers to access information placed in the cloud.From a cloud user’s perspective, this essentially means that sound information management practice, not the USA Patriot Act or similar laws in other countries, should govern decisions regarding what data is appropriate for what range of storage sites, including use of cloud services.”


• UK Cloud Computing Interception – nothing new, an article that discusses UK situation. "Some UK cloud-computing customers are concerned that they should not entrust US cloud-providers with their data for fear of US law enforcement interception. If interception is so much of a concern they should not only avoid US cloud providers but also should avoid using the UK’s telephone, the Internet, and the postal system. The interception of communications, whether stored in the 21st Century cloud or sealed in 16th Century scrolls, and whether here in the UK or in the US, is nothing new. All communications data, where justified, may be intercepted by the State’s watchful and proportional eye.”

For more on the Patriot Act, see How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism by Amitai Etzioni (Call #KF4850 .E88 2004 ) in the Brooklyn Law School Library collection. This brief guide deals with an important issue -- the balance between personal freedom and collective security in the age of terrorism. It presents principled analyses and suggestions for change and is thoroughly documented.

Exam Study Tools and Services

Brooklyn Law School Library has these study tools and services to assist students prepare for exams.

Extended Hours
The Law Library will open for extended hours during the reading and exam periods.
Reading/Examination Period: December 8 – 23, 2011
Seven days a week: 8:00am–2:00am
December 23 close at 10:00pm

Study Rooms
The Library uses an online study room reservation system during the reading and exam period. Beginning on Thursday, December 8 at 12:01am you may make a reservation for a group study room for that day and for two days ahead. A link to the Study Room Reservation System will be found on the Library web page under “Related Links” at that time.
Study rooms are for the use of groups of two or more people and cannot be reserved for one individual. Students are only permitted four hours of study room space per day. Instructions for making reservations are:

1. Select the time duration for your reservation: 30 minutes, 1 hour, 2 hours, 3 hours or 4 hours.
2. Select the study room number. Click the “Study Room” link at the top of the page for descriptions of the study rooms.
3. Select the number of people in your group.
4. Choose the date for your reservation.
5. Choose the time your reservation will begin by clicking an open slot on the grid.
6. New users will need to register as “New User.” You will create your own username and password. Returning users will need to enter their username and password.
7. Click “Finalize Room Reservation” link.
8. Print your room reservation to present at the circulation desk.
9. At the time of your reservation go to the circulation desk to obtain the key to the room. During this period all study rooms are kept locked.
10. Online study room reservations for the exam period end Friday, December 23.

Online Study Aids

The CALI website has a Lessons by Casebook chart which may make finals prep a little easier.

Law School Past Exams
Past exams are available to students as a teaching aid. You can access them from the law school portal page: Brooklyn Law School Portal > Academics > Exams & Grading > Final Exams > Exams on File.

Good luck on your exams from the BLS Law Library.

Winter 2011 Student Legal Writing Contest

Congratulations to Michael A. Sabino, Brooklyn Law School Class of 2012, for winning the Winter 2011 Student Legal Writing Contest sponsored by the National Law Review for his article Football and Antitrust Law: American Needle v. NFL and Its Meaning for Combinations in Restraint of Trade and the Rule of Reason in the 21st Century. Michael is an intern for the Hon. Leonard Wexler, U.S. District Court, Eastern District of New York. He served as an intern with the U.S. Attorney for the District of Massachusetts, Organized Crime Strike Force; Hon. Leonard B. Austin, Appellate Division, Second Department, New York State Courts; District Attorneys of New York, Queens, and Nassau Counties. Michale has also published other articles this year. See From Chiarella to Cuban: The Continuing Evolution of The Law of Insider Trading, 16 Fordham J. Corp. & Fin. L. 101 (March 2011) and Shale-Gas Case Ringing Alarms in State-Level Mineral-Rights Law, 28 Natural Gas & Electricity 5 (December 2011).

Episode 072 – Conversation with Prof. Steven Dean

Episode 072 – Conversation with Prof. Steven Dean.mp3

This podcast features Brooklyn Law School Professor Steven A. Dean discussing his recent article, Tax Deregulation, 86 N.Y.U. L. Rev. 387 (May 2011). The article defines what tax deregulation is as it has emerged as an important feature of the tax policy landscape. It has done so even as scholars have failed to grapple with its normative significance. Prof. Dean discusses his proposal using examples from the current election campaign to illustrate the differences between tax simplification and tax deregulation. In the article, he concludes deregulatory provisions that aim to produce micro-compliance spirals offer the most promising risk-reward profiles, but even they may cause more harm than good.

Prof. Dean has expertise in Tax Law and Policy, International Tax, Tax Havens and Tax Simplification. He has written extensively on these topics with a list of his publications available here.

Family, Marriage and the Law

Brooklyn Law School Library's most recent New Book List has the 2d edition of The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) by Peter Nicolas and Mike Strong (Call #KF539 .N52 2011a). This 40 page volume depicts the history and current state of marriage and relationship recognition rights for same-sex couples in the United States in charts and in maps with endnotes citing to relevant cases and statutes. Not included in this list is the recent Order by a Livingston County Supreme Court allowing a suit challenging New York's landmark marriage equality law to proceed based on claims of violations of NY's open meeting law. Beginning with a detailed history of efforts to achieve marriage rights and other forms of relationship recognition (such as domestic partnerships and civil unions) for gay and lesbian Americans, from the first lawsuit filed in 1970 in Minnesota to the Illinois civil union law that goes into effect in June 2011, it goes on to provide detailed information on relationship recognition in the United States, including which states permit same-sex couples to marry or to enter into other types of legal unions; the rules for entering into or terminating such relationships; a comparison of the rights that each state provides to same-sex couples; the extent to which same-sex relationships entered into in one state are recognized by other states; and which cities and counties have domestic partnership registries and equal benefits ordinances. It also looks at efforts to ban same-sex marriage at the ballot box, including selected vote details by state and county; a closer look at where support for such efforts was weakest and strongest; and a comparison of the processes for amending state constitutions across the US.

The BLS Library also recently added to its collection Inside the Castle: Law and the Family in 20th Century America by Joanna L. Grossman and Lawrence M. Friedman (Call #KF505 .G765 2011). This comprehensive social history of twentieth-century family law in the United States tells the story of the institution of family, exploring the ways in which law tried to penetrate and control this realm of personal life. Chapters include: Tying the knot: marriage and promises to marry -- Marriage and the state -- Marriage, law, and society: a tangled web -- Common-law marriage -- The end of heart balm -- Anything goes: love and romance in a permissive age -- The rise of sexual freedom -- Cohabitation -- Same-sex relationships -- When the music stops: dissolving a marriage and the aftermath -- Untying the knot: divorce and annulment -- Dollars and sense: the economic consequences of divorce -- Collateral damage: the children of divorce -- The old and the new generation -- The extended family: elder law and the law of inheritance.

Happy Thanksgiving

Insider Trading in Congress

Insider trading by members of Congress and their staff is back in the headlines after a CBS report on 60 minutes. See video below:



The 60 Minutes report has renewed attention in H.R 1148, the Stop Trading on Congressional Knowledge Act which would prevent members of Congress and their staffs from using information not available to the public to guide them in making or selling investments. This proposal goes back to 2006 when Rep. Louise Slaughter (D-NY) first proposed the bill in response to a story about day trading by the chief of staff of then-House Majority Leader Tom DeLay(R-TX). The Chairman of the House Financial Services Committee, Rep. Spencer Bachus (R- AL), has announced that he will schedule the first-ever House hearing on legislation to prevent lawmakers from trading on nonpublic information. Sen. Kirsten Gillibrand (D-NY) announced that she and other Senators will introduce a Senate version of the STOCK Act to prohibit members of Congress from engaging in insider trading.

Insider trading in Congress is nothing new. See Abnormal Returns from the Common Stock Investments of Members of the United States Senate, 39 J. Fin. & Quantitative Analysis 661 (2004) which studied congressional insider deals dating to the mid-1990s. The SEC has not taken any action against insider trading by senators and other congressional officers, leaving Congress to police itself so far without success. Such "insider trading" is illegal for most Americans, but the question whether it applies to members of Congress and their staff is the subject of some debate. Insider trading is not explicitly prohibited by law. The SEC website says “the term actually includes both legal and illegal conduct.” The offense is prosecuted as a violation of Rule 10b-5 of the Securities Exchange Act of 1934, a general anti-fraud rule that prohibits deception “in connection with the purchase or sale of any security.”

Commentators claim that Congressional officials are immune from federal insider trading law. But Prof. Donna M. Nagy argues that the “conventional wisdom that there is some type of legal loophole for Congressional insider trading is simply wrong. Any Member of Congress or legislative staffer who trades securities on the basis of material nonpublic information obtained through Congressional service is already doing so in violation of existing federal securities law.” See her article Insider Trading, Congressional Officials, and Duties of Entrustment, 91 B.U. Law Rev. 1105 (2011).

On the other hand, Prof. Stephen Bainbridge argues the opposite in Insider Trading Inside the Beltway saying “As to members of Congress, however, current law provides a strong argument that their trading cannot be punished under either the classic disclose or abstain or the misappropriation theory.” He concludes: “Insider trading by corporate insiders has been banned for over four decades. Throughout that period, we have known that insider trading by members of Congress was a potential problem that arguably presented even more serious policy concerns than trading by classic insiders. Congressional insider trading creates perverse legislative incentives and opens the door to serious corruption. Yet, both Congress and the SEC have turned a blind eye.”

60 Minutes reported that Chairman Bachus made bets that financial markets would collapse at the same time he met with officials from the Fed and Treasury Department in 2008 by buying options when the Dow opened at 8,604 and selling them a few days later after the market fell doubling his investment. If the STOCK Act becomes law, the true test of equal enforcement will be if the SEC will pursue civil actions and the DOJ pursue criminal actions against a powerful chairman of Congress with oversight of their funding.

For more on insider trading, see the Brooklyn Law School Library copy of the 3d edition of Insider Trading by William Wang and Marc Steinberg, an 1178 page comprehensive and up-to-date resource by two experts who provide clear and concise information on insider trading liability. Chapters include: Impact on society, the issuer, and the insider trader's employer -- The harm to individual investors from a specific insider trade -- Some basic elements of insider trading liability under Section 10(b) and Rule 10b-5 -- Those who violate Section 10(b) and Rule 10b-5 by insider trading or tipping -- The Rule 10b-5 private plaintiffs who can sue a stock market insider trader for damages -- Government enforcement.

Legal Writing Workshop at BLS

On Friday, December 2, 2011, Brooklyn Law School will host a one-day workshop sponsored by the Legal Writing Institute. It is one of a number of events scheduled at law schools around the country. BLS Librarian Kathy Darvil, who will co-present with Courtney Selby, Director of Hofstra Law Library on Legal Research for the New Millennials, will discuss her recent paper Think [and Practice] Like a Lawyer: Legal Research for the New Millennials which she co-authored with Prof. Aliza Kaplan.

The topics included in the workshops will include teaching legal writing; teaching persuasive writing, appellate advocacy, and moot court; legal research update; and other innovations. The workshops have, in the past, proven a great opportunity for legal writing faculty around the country to meet and share ideas and a great opportunity for adjunct faculty who are often unable to travel to gain some valuable experience and insight. The one-day workshops are a fundraiser for the LWI, and attendees are asked to pay a $100 registration fee, which will be donated to the LWI to enable it to continue its many fine and important programs. Host School attendees are asked to pay $25. Scholarships will be available for those who cannot pay the registration fee. Please register for the workshop at this online link.

Financial Institution Fraud Prosecutions Decline

The Transactional Records Access Clearinghouse (TRAC) from Syracuse University, a source for comprehensive, independent and nonpartisan information about federal enforcement, staffing and spending, recently issued a report that “Federal prosecutions for financial institution fraud have continued their downward slide despite the financial troubles reported in this sector. The latest available data from the Justice Department show that during the first eleven months of FY 2011 the government reported 1,251 new prosecutions were filed. If this activity continues at the same pace, the annual total of prosecutions will be 1,365 for this fiscal year, down 28.6 percent from their numbers of just five years ago and less than half the level prevalent a decade ago.” See chart below showing the long term trend in these prosecutions over the last two decades.










TRACfed is available electronically to Brooklyn Law School members through the BLS Library subscription which allows users to generate reports of specific data from a variety of statistics released by the federal government. Coverage includes all criminal matters recommended for prosecution in the federal courts and the civil income tax audits by the IRS. It also includes criminal, civil, and administrative law enforcement and sections on judges and prosecutors, federal funding for public services and national demographic and economic information by county, state or federal judicial district. TRAC maintains two Web sites – one is a free public site, the other is a data warehouse known as TRACFED. Both can be accessed from TRAC’s public site and home page.

SEC Settlements "Just For Show"?

The Securities and Exchange Commission announced that it filed a record 735 enforcement actions and collected some $2.8 billion in sanctions in the fiscal year that ended September 30 with 146 of these actions being taken against investment advisors, a 30% increase over 2010. The previous year, it brought 677 cases collecting slightly more in penalties -- $2.85 billion. The record number of enforcement actions is a result of the enforcement division undergoing its most “significant” reorganization in 2009 and 2010 since being established in the early 1970s. The number of enforcement actions against advisors and broker-dealers also increased, going from 112 in 2010 to 146 at the end of September. The chart below from the SEC website shows Year-by-Year SEC Enforcement Actions 2002 to 2011.














SEC Chairman Mary Schapiro boasts of increased enforcement in a statement announcing the enforcement results: “We continue to build an unmatched record of holding wrongdoers accountable and returning money to harmed investors. I am proud of our Enforcement Division’s many talented professionals and their efforts that resulted in a broad array of significant enforcement actions, including those related to the financial crisis and its aftermath.”

Increased fines are not the only measure of the effectiveness of an agency’s enforcement efforts. A recent article reports that in the case of U.S. Securities and Exchange Commission v. Citigroup Global Markets Inc. pending in the U.S. District Court for the Southern District of New York, US District Judge Jed S. Rakoff is considering whether to approve Citigroup's proposed settlement of $285 million ($95 million plus $190 million in disgorgement and interest) with the SEC. Expressing doubts about whether the agreement is sufficient for alleged misdeeds over mortgage-related securities in a deal where Citibank made a $160 million profit and caused its customers to lose $700 million, Judge stopped short of saying he would reject the settlement withholding his approval of the settlement which allows Citibank to avoid prosecution without any admission of wrongdoing. He ridiculed the SEC’s decision to describe the crime as “negligence” instead of intentional fraud, questioning whether a bank making a profit of $160 million by causing losses of $700 million to its customers can conceivably be described as an accident. See Judge Rakoff’s his questions about the proposed settlement in his Order dated October 27 and Citbank's memorandum in response.

For in depth research on this topic, see the Brooklyn Law School Library resource from its subscription to BNA, the Corporate Practice Series Portfolio No. 77-4th, The SEC Enforcement Process: Practice and Procedure in Handling an SEC Investigation which discusses practice and procedure in handling both informal and formal investigations by the SEC's Division of Enforcement, including responding to subpoenas, producing documents, and testimony; when and whether companies should conduct internal investigations; the Wells process and settlement discussions; remedies; and consent decrees. The portfolio also examines related issues, including disclosure of an SEC investigation and issues arising out of parallel civil and criminal inquiries.

National Adoption Month

November is National Adoption Month, a month set aside each year to raise awareness about the adoption of children and youth from foster care. The Administration for Children and Families estimates there are 107,000 children and youth in the foster care system waiting for families to adopt them. Saturday November 19, 2011 is National Adoption Day when courts around the country will be opening their doors to finalize the adoption of foster children. Several County Courts in NY State are hosting Adoption Day celebrations in recognition of National Adoption Month. The New York State Citizens’ Coalition for Children (NYSCCC) which represents the citizen’s viewpoint and works to improve and expand the services available to children and families includes on its website these resources:

• The Basics: Adoption in New York State from the NYC Cross Borough Collaboration
• Adoption in New York from the NYS Bar Association Pamphlet
• New NY State Law Allows Unmarried Couples to Jointly Adopt

Brooklyn Law School Library has in its collection The Adoption Law Handbook: Practice, Resources, and Forms for Family Law Professionals by Jennifer Fairfax (Call #KF545 .F35 2011) published by the American Bar Association, Section of Family Law. The book has chapters on Adoption overview -- Client intake, advice, and consultations -- Home study -- Domestic private agency adoption -- Public agency adoptions -- Independent adoption -- Interstate compact on placement of children -- Biological fathers -- Consent, relinquishment, and termination of parental rights -- Second-parent or co-parent adoptions -- Post-adoption contact agreements (PACA) -- Indian Child Welfare Act -- Stepparent adoptions -- Cost and financing -- Adult adoption -- Open adoption records -- Disruption and dissolution -- Failure of disclosure and tort of wrongful adoption.

Get Out and Vote

Voter turnout thoughtout the country is likely to be low on Election Day 2011 except for highly disputed contests such as those in Ohio where voters decide Issue 2, a Referendum on New Law Relative to Government Union Contracts, and Mississippi where they vote on Initiative #26, a citizen-led measure to amend the Mississippi constitution to define human life as starting at “the moment of fertilization, cloning or the functional equivalent thereof.” Low turnout is most pronounced in off-year elections for state legislators and local officials. Too often, mayors of major cities often are elected with single-digit turnout.

Even so, Election Day is a time to reflect on the hard won history of expanding access to the polls. The ACLU notes that this Election Day, we are faced with a dramatic rollback of voting access with a trend of voter suppression laws introduced and enacted in many state legislatures. During the 2011 legislative season, more than 30 states legislatures introduced such measures and 14 states advanced measures that would create more barriers to voting.

On the subject of voting, the Brooklyn Law School Library has in its collection Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy edited by Guy-Uriel E. Charles, Heather K. Gerken and Michael S. Kang. It offers a critical re-evaluation of three fundamental themes in American democracy: the relationship between race and politics, the performance and reform of election systems, and the role of courts in regulating the political process. With contributions from leading voices in election law and social science, it addresses recurring questions for American democracy and identifies new challenges for the twenty-first century. The book provides intellectual guideposts for future scholarship and policymaking in American democracy.

Oxford Scholarship Online

Brooklyn Law School Library's subscription to Oxford Scholarship Online (OSO), one of the leading academic research resources in the world, offers full-text access to academic monographs in eighteen subject areas in the humanities, social sciences, science, medicine, and law. Recently, OSO re-launched its site with new features, new content, and a brand new look and feel. For an overview of the new look site, take the tour. For a full list of new features, see the OSO New Features Guide.

According to OUP, users can now access seminal and prize-winning titles through the OSO Archive with content initially available in eight subject areas: Business & Management, Economics & Finance, History, Literature, Music, Philosophy, Political Science, and Religion. Further OSO Archive content in the science, medical, and law disciplines, as well as Classics and Linguistics, will follow in 2012.

The law module has the full text of 440 titles including more than 30 recently added new titles among which are:

Blame it on the WTO? — A Human Rights Critique
The Boundaries of the Criminal Law
Compensation and Restitution in Investor-State Arbitration — Principles and Practice
European and International Media Law — Liberal Democracy, Trade, and the New Media
The Evolution of the European Convention on Human Rights — From Its Inception to the Creation of a Permanent Court of Human Rights
Extraterritorial Application of Human Rights Treaties
International Humanitarian Law and International Human Rights Law
Interpreting the Nuclear Non-Proliferation Treaty
The Lisbon Treaty – Law, Politics, and Treaty Reform
The Optional Protocol to the UN Convention against Torture
Piracy and Armed Robbery at Sea — The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden
State Responsibility for International Terrorism

The Outrageous Rubenstein

The current BLS Library New Book List has listed many titles including The Outrageous Rubenstein: How a Media-Savvy Trial Lawyer Fights for Justice and Change by Sanford Rubenstein, a memoir of Brooklyn Law School graduate Sanford (“Sandy”) Rubenstein, Class of 1971. He proudly describes the arc of his career as "from the projects to the penthouse." A famed civil rights attorney, Rubenstein handled some of New York’s most famous cases, from that of police torture victim Abner Louima for whom he won an $8.75 million settlement from New York City and the Patrolmen's Benevolent Association to the case of unarmed African immigrant Ousmane Zongo, mistakenly gunned down by police in a Manhattan storage facility leading to a wrongful death suit in which the City of New York agreed to pay $3 million to his family. The book also tells the story of an 11-year-old boy, Vasean Alleyne, killed by a drunken driver. His death sparked legislation toughening DWI penalties.

The book has portraits of his late colleague Johnnie Cochran, his friend and client Reverend Al Sharpton, and other giants of the legal and civil rights community. In less than 200 pages, the covers five cases that probably have enough detail to be the content of a single book each. For academics attempting to understand the inside story on fighting civil rights, or law students trying to find material to demonstrate the importance of the media in making cases work, this book is worth reading. Rubenstein's approach to fighting difficult cases is something worth studying. The website for his law firm, located near BLS, provides addtional details about the cases.

Flamboyant, outspoken, and committed to social justice, Rubenstein offers an inside look at his methods and motivation. "My hope and goal," he writes, "is to use the power of our civil justice system to help create a safer and more equitable society for everyone." In the preface, he writes:

There’s been a lot of talk lately about how civil lawsuits are hurting America. Jury awards are being blamed for everything from rising medical costs to corporate bankruptcies, and right-wing politicians are trumpeting the need for “tort reform,” such as financial caps on medical malpractice lawsuits. Trial lawyers are now held up as the new villains, responsible for everything that’s wrong with our nation. . . [T]he ability of an average person to pursue a civil case – to bring a suit against an individual, a corporation or other group, or a government entity, and have his or her case heard by a jury of fellow citizens – is one of the most important rights we have as Americans. The U.S. civil justice system levels society’s playing field, by giving ordinary people a means of fighting back when they’ve been wronged.

Domestic Violence Awareness Month

Earlier this month the White House issued a Presidential Proclamation designating October 2011 as Domestic Violence Awareness Month, stating that “an average of three women in America die as a result of domestic violence each day. One in four women and one in thirteen men will experience domestic violence in their lifetime.” Domestic Violence Awareness Month has been observed nationally starting with the Day of Unity observed in October 1981. In 1989, the U.S. Congress designated the first Domestic Violence Awareness Month commemorative with passage of S.J. Res. 133 as Pub. L. 101-12.

Lawyers and law schools have a special responsibility regarding the issue of domestic violence. Legal services for domestic violence protective orders, divorce, custody, spousal and child support are important factors in preventing domestic violence. Earlier this year, Brooklyn Law School Prof. Elizabeth Schneider, a national expert in the field of domestic violence who teaches a Battered Women and the Law course, wrote the introduction to Teach Your Students Well: Incorporating Domestic Violence Into Law School Curricula, a Law School Report for the American Bar Association Commission on Domestic Violence to address the importance of incorporating gender issues, including domestic violence, into law school curriculum. She cited the work of Brooklyn Law Students against Domestic Violence (BLSADV) which worked with other groups on a hotline representing battered women on restraining order cases.

The BLS Library recently added to its collection the 2011 edition of Domestic Violence: Practice and Procedure by Isabelle Scott a comprehensive volume for practitioners which offers analysis of domestic violence case law and statutes, scientific and medical information, practical advice, and proven tips. Discussion covers the full sweep of domestic violence law, including criminal, civil, tort, divorce, child custody, immigration, civil rights, and equal protection.

New Rule on Tipped Employees

A settlement agreement filed in the US District Court for the Southern District of New York in Lacovara v. Hard Rock Cafe International (USA), Inc. ends a proposed class action complaint that Hard Rock Café locations in New York failed to pay certain gratuities to hourly private event food and beverage service workers. The settlement fund of $230,000 will go to 469 servers who worked at Hard Rock Café’s 57th Street and Time Square locations. The lead plaintiff, who worked as a bartender for Hard Rock from October 2009 to June 2010, brought the suit last October, claiming the restaurant’s New York locations misappropriated an 18-20 percent gratuity fee that was charged to customers during private parties, in violation of state labor laws.

In preparing a class on Administrative Law for the Advanced Legal Research class at Brooklyn Law School, we found that earlier this year, the Wage and Hour Division of the Department of Labor (DOL) issued a Final Rule interpreting the Fair Labor Standards Act (FLSA). The new regulations, which became effective May 5, 2011, made significant changes to tip credit regulations. The new regulation provides employers must provide employees with proper notice in order to use the tip credit. The must pay their tip employees wages of at least $2.13 per hour. However, the amount of tip credit they using against actual tips plus the actual cash wage they pay must equal the minimum wage of $7.25. A “tipped employee” is defined as one who is engaged in an occupation in which the employee customarily and regularly receives more than $30 a month in tips, 29 U.S.C. § 203(t). A tip is a sum presented by a customer as a gift or gratuity in recognition of some service performed for the customer, 29 C.F.R. § 531.52. It is distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, and generally he or she has the right to determine who shall be the recipient of the gratuity. The FLSA now address ownership of tips even in cases where employers already pay at least the full minimum wage in cash. The amended regulations state that tips “are the property of the employee whether or not the employer has taken a tip credit.” 29 C.F.R. § 531.52

In June, the National Restaurant Association and other organization filed a complaint against the Labor Department over the agency’s new tip-credit-notice regulation, claiming that it failed to provide employers with sufficient notice to comment and comply with the new rule and that the new rule is arbitrary, capricious, an abuse of discretion, and contrary to established law. If successful, the lawsuit would nullify the new rule.

Emergency Doctrine in Tort Law

The NY State Court of Appeals recently ruled in Lifson v. City of Syracuse that a driver who struck and killed a pedestrian while being distracted by sun glare cannot invoke the “emergency doctrine.” An attentive driver would have anticipated occasional sun glare considering the time of the accident (4:05 pm on a winter day) and have no need to invoke the common-law emergency doctrine which “recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.”

The trial judge instructed the jury that they could consider the sun glare an emergency situation. The jury found that the driver was faced with an emergency situation and acted reasonably in response, and dismissed the case against him. The Appellate Court affirmed the trial court, finding that the emergency instruction was properly given, as there was a reasonable view of the evidence showing that the sun glare was a sudden and unforeseen occurrence. The NY Court of Appeal reversed and remanded the case to the Supreme Court for trial relying on Caristo v. Sanzone, 96 NY2d 172 (2001) which found the driver did not face an emergency situation where his car slid on ice. There, the court found that the driver was generally aware that he was driving in bad weather consisting of precipitation with a mix of snow, rain and hail. Thus the ice should not have been unexpected, and the driver was not faced with a sudden and unexpected emergency.

For a comprehensive analysis on the issue, researchers at Brooklyn Law School can access the American Law Reports Annotation, Instructions on Sudden Emergency in Motor Vehicle Cases, 80 A.L.R.2d 5 (Originally published in 1961). The series is available in print in the National Reading Room on the second floor or online in Westlaw and Lexis.

New Post for BLS Alum

An article in the New York Law Journal reports that Brooklyn Law School alumna Chief Administrative Judge Ann T. Pfau will leave her current position on December 1. In an interview, Judge Pfau described her current position, "It's a very demanding position that takes total commitment and energy, and there comes a time when it's somebody else's turn to do it." Judge Pfau, BLS Class of 1984, is not retiring but will begin hearing medical malpractice cases in Brooklyn Supreme Court and will join a pilot program there aimed at settling malpractice suits out of court.

Earlier this year Judge Pfau was presented with the Golda Meir Memorial Award from The Jewish Lawyers Guild at its 35th Annual Dinner in March 2011. She was appointed Chief Administrative Judge in May 2007 by then Chief Judge Judith S. Kaye. Her duties through more than four exceptionally tumultuous years included overseeing the administration and operation of the courts $2 billion budget, 3,600 state and locally paid judges and over 15,000 non-judicial employees. Judge Pfau served as First Deputy Chief Administrative Judge of New York from 2004 to 2007. Prior to that, she was the Administrative Judge of the Supreme Court, Second Judicial District.

Episode 071 – Conversation with Book Store Manager

Episode 071 – Conversation with Book Store Manager.mp3

Today's podcast is of Debra Johnson, the new manager of the Brooklyn Law School Bookstore. She works with the help of Assistant Manager Junelle Gilbert. Beginning this semester the bookstore has been under the management of the Follett Higher Education Group. The business hours for the bookstore are Monday, Wednesday and Thursday 9am-5pm, Tuesday 9am-6pm, and Friday 9am-4pm. In addition to required law school textbooks, the bookstore provides reference materials, magazines, a wide selection of snacks and convenience items, coffee and teas, as well as an assortment of supplies, clothing and gift items that will continue to grow in the coming weeks.

Law Schools and Occupy Wall Street

The one-month old Occupy Wall Street protest has been getting some attention from law schools in general and Brooklyn Law School in particular. A blog post at Out of the Jungle traces the spread of the protests from lower Manhattan. BLS Professor Jonathan Askin has written an article addressing the nature of the protests. He sees a difference between protesters of the past with specific objectives like ending the war or achieving racial and gender equality and today’s protesters whose objectives are less defined. He calls them “digital natives” who imagine alternative "What If" worlds and says they “have come to Wall Street with frustrations over the existing political/corporate structures and processes, and are trying to re-imagine a better world. They might not have all the answers, but they are willing to try many of the possibilities.” Prof. Askin concludes his article saying “we certainly should be listening . . . to see what ideas might get us out of the intractable economic, social and political quagmire into which our opaque, hierarchical system has brought us and lead us to a better world.”

One of those digital natives is Nathaniel Costa, BLS Class of 2014, who has been at Occupy Wall Street and imagined one of those “What If “worlds saying “I'm here because I see an injustice in this country; the middle class has been dying for 30 years. And now I hear from the Republicans we have to protect the 'job creators'. Well I feel no pity for the top 1 percent. I see the top 1 percent making a fortune in the last several decades and people are suffering more than ever. This is democracy in action. If the majority of people voted in this country a Republican would never be elected again."

Comments from other law schools on Occupy Wall Street include one from Professor Paul Campos of the University of Colorado at Boulder who also notes the generational divide in his article Occupy Wall Street's Age Divide. He argues that baby boomers do not understand that today’s protesters do not have all the advantages now being denied the younger generation. He cites his own encounters with recent law school graduates trying to get jobs as lawyers to discover that more than half were unsuccessful. Another post at Balkanization by Seton Hall Professor Frank Pasquale has comprehensive links about the growing protests against the rule by America’s wealthy corporate and financial elite. Protests of income and wealth inequality may not resonate with all but this image on the system of justice presents a stark contrast.

NY Metro Super Lawyers

The 2011 edition of New York Metro Super Lawyers is now available online. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. The magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country. The selection process for those who make the list “is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field."

Alumni of Brooklyn Law School make up a large part of those selected this year. Leading them is Gerald L. Shargel, BLS Class of 1969, who is featured in the article The Don of Criminal Defense Attorneys. An Advanced Search for lawyers located in the New York Metro who graduated Brooklyn Law School shows that 330 BLS alumni made the list. Statistics compiled from Super Lawyers 2011 show that BLS graduates were the fifth highest law school whose alumni were selected. See chart below.

Voting Rights in the 21st Century

In Shelby County, Alabama v. Holder, a comprehensive 151-page opinion, Judge John D. Bates of the U.S. District Court for the District of Columbia denied a challenge to the Voting Rights Act of 1965. The decision addressed section 5 “preclearance” requirement which remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in ongoing efforts to “banish the blight of racial discrimination in voting.” Judge Bates’ rejected Shelby County’s challenge to Congress’ 2006 near-unanimous renewal of the Act’s preclearance requirement. The preclearance requirement obligates states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal approval before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect. The U.S. Court of Appeals, D.C. circuit, will hear an appeal of Judge Bates’ ruling on January 19, 2012.

For more on this topic, see the Brooklyn Law School Library ‘s “The Law Is Good'': The Voting Rights Act, Redistricting, and Black Regime Politics by Steven Andrew Light with chapters The Voting Rights Act and minority representation -- The struggle for voting rights -- The Voting Rights Act of 1965 : passage and provisions -- The Supreme Court's redistricting revolution -- Voting rights and Black representation in Tallulah -- Voting rights in the 21st century : do we still need the Voting Rights Act? -- Selected provisions of the Voting Rights Act of 1965 -- Selected documents from the U.S. Department of Justice. A Google preview of this book is available here.

Getting Ready for Finals

It is the middle of October and not too soon to think about final exams. Law students at Brooklyn Law School can get help on preparing for and taking exams using the BLS Library’s Open Book: Succeeding on Exams From the First Day of Law School by NYU Law School Professor Barry Friedman and Harvard Law School Professor John C.P. Goldberg. Connecting the dots of the law school experience, it explains how what takes place in class relates to both final exams and the practice of law. Accompanying a book with a website of premium-content resources is a very cutting-edge idea. The blog Concurring Opinions says that:

[Open Book] is something different and really worth recommending. Here are a few reasons why I would love my students to read the book and its online content.
First, the book imparts fabulous advice on why law profs give exams and how those exams directly connect to law practice and the whole law school endeavor.
Second, the website has so many practice exams (in all of the core areas) with marked up answers that explain the reasons behind the prof’s thinking and evaluation of the answers. This is an incredible help: students learn what worked on the exam and why.
Third, the joy that the authors take from teaching and the practice of law leaps off the page — it’s so clear how wonderful they are as teachers and mentors. Their enthusiasm and respect for what lawyers do is obvious and inspiring. The pedagogy will appeal to law professors, and it is an entertaining read, nicely illustrated. The website is full of useful content (those practice exams and feedback I talked about).

Legal Research for the New Millennials

Among the several articles included in the newly posted Lewis & Clark Law School Legal Studies Research Paper Series, part of the SSRN Legal Scholarship Network, is Think [And Practice] Like a Lawyer: Legal Research for the New Millennials. The authors are Prof. Aliza B. Kaplan, Lewis & Clark Law School (and former Brooklyn Law School Associate Professor of Legal Skills) and Access Services/Reference Librarian and Adjunct Assistant Professor of Law Kathleen N. Darvil, Brooklyn Law School. The abstract of the article reads:

It is time to heed the calls for legal education reform. In our changing economy, new attorneys need to be properly trained in law school to be competent at providing effective legal services for their employers and clients. Law schools must remain open to and interested in legal reform; they must partner with practitioners to incorporate more practical skills into the law school curriculum. Updating how we teach legal research by making it accord more with how attorneys actually conduct and use legal research in practice will help accomplish this and will also more actively engage our Millennial students. There is no question that making some timely changes to legal research instruction would better prepare new attorneys to be competent practicing lawyers and would be a win-win for students, law schools and employers.

The full article appears in Vol. 8, 2011 of Legal Communication & Rhetoric, the Journal of the Association of Legal Writing Directors.

Electoral College Reform

Article 2, Section 1 of the U.S. Constitution established the Electoral College as the formal body which elects the President of the United States. The result of a compromise designed to win the votes of the states in the South, it has long been the target of criticism. The 12th Amendment effective in 1804 remains the only successful effort at altering the Electoral College. Since then, approximately 595 resolutions have been introduced proposing Electoral College reform. There have been more proposed constitutional amendments regarding Electoral College reform than on any other subject. See the CRS Report The Electoral College: An Overview and Analysis of Reform Proposals. In the current Congress, Rep Jackson, Jesse L., Jr. has proposed an amendment, H. J. Res. 36, to abolish the Electoral College and provide for the direct election of the President and Vice President by the popular vote.

Securites Class Actions and Standing

After six years of litigation in the securities class action case of In re Smith Barney Transfer Agent Litigation, Judge William H. Pauley III of the Southern District of New York in the an Order dismissed the Lead Plaintiff based on the fact that it had never purchased any of the Smith Barney funds at issue. Stating that one of the foundational grounds for a motion testing the pleadings is lack of standing, the judge cited “epic failures” by the lawyers on both sides of the case, and called the effect of the error “seismic” causing the litigation to take on “Sisyphean dimensions.”

“After six years of litigation, including extensive motion practice, an appeal to the Second Circuit, remand, more motion practice, and discovery, lead counsel learned that the lead plaintiff never purchased any of the securities at issue in this action,” Pauley wrote in today’s decision. “Lead counsel’s failure to confirm the most basic fact -- that its client purchased the securities at issue in this action -- has resulted in a considerable waste of time and resources,” Pauley said. Criticizing the lawyers for all of the parties in the case for failing to exercise due diligence, Pauley wrote “In retrospect, it was something so obvious that every lawyer in the case should have recognized the problem and reacted immediately. But no one did.”

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

Episode 070 – Conversation with Elliott Siebers, Class of 2012

Episode 070 – Conversation with Elliott Siebers, Class of 2012.mp3

Brooklyn Law School Student Bar Association President Elliott Siebers, Class of 2012, talks about his experience before coming to BLS and his internship with an intellectual property law firm in China this past summer. He also talks about his role as President of the SBA, the umbrella organization for all student organizations at the Law School. As SBA President, Elliott and his fellow SBA officers have worked with several departments within the Law School, including the BLS Library and the bookstore, to help better serve the student body. The SBA has also worked with the search committee to have student input into the ongoing search for a new Law School Dean.