Episode 068 – Conversation with Leslie Miller, Class of 2013

Episode 068 – Conversation with Leslie Miller, Class of 2013.mp3

This podcast features Leslie Miller, Brooklyn Law School Class of 2013, discussing her participation in the joint degree program with BLS and Hunter College in Urban Planning leading to the degrees of Juris Doctor (JD) and Master of Urban Planning (MUP). Before coming to BLS, Lee worked as a NYC Urban Fellow in the Mayor’s Office of Industrial & Manufacturing Businesses. In the conversation, she talks about the prestigious American Planning Association (APA) Daniel J. Curtin Jr. Planning Law Division Fellowship which she was awarded in February of this year. She also recommends that BLS students participate in the BLS Street Vendor Pro Bono Project which this site covered earlier this year at this link.

Hurricane Irene Closing

As Hurricane Irene approaches, the Dean at Brooklyn Law School has decided to close the building completely on Saturday and Sunday. The New York City MTA is shutting down at noon tomorrow. Hurricanes are rare events in New York City but the current forecast track map puts Irene directly over the New York metropolitan area on Sunday. It is tempting to think this might be just another storm but the effects of a direct hurricane strike can be severe, flooding the subway system for weeks to months, devastation along the Long Island shore, flooding in lower Manhattan, and many without power.

Residents of New York City, New Jersey and the metropolitan area need to get prepared for Hurricane Irene. If you reside in a low-lying flood-prone area in the Northeast threatened by Irene, consider taking action today. The moment authorities announce possible evacuations, people will panic. Buy your supplies now. Governor Andrew M. Cuomo has declared a state of emergency in New York in preparation for the potential impact of Hurricane Irene. See Executive Order #17: Declaring a Disaster in the Counties of Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk and Contiguous Areas. The National Hurricane Center has a webpage for hurricane preparedness guides. There is more information on the TSA Blog. Other sites with more information are the NYC webpage, the National Hurrricane Center and the Map of NYC evacuation zones.

Patent Reform in Dispute

An article Politicians and Pundits Make Some Noise About Patent Reform explains that the Senate is set to vote on the America Invents Act (which passed in the House by a vote of 304-107 in June), the first major revision of American patent law in more than 60 years. In March of this year, the Senate approved its version of the Patent Reform Act by a vote of 95-5. With few differences, the bills alter a wide range of current law and practices before the U.S. Patent and Trademark Office (USPTO) including a change in fundamental entitlement to a patent to a "first to file" system; codified limitations on potential recoverable damages for infringement and the procedure in which such damages must be assessed; codification of the requirements for establishing willful infringement; and new restrictions on the venue in which patent infringement actions may be filed.

Until now, the US has maintained an inventor-friendly patent system to favor whoever files for an application first. The proposed legislation changes US law from a patent system favoring the first-to-invent to one favoring first-to-file. This change is an attempt to harmonize U.S. law with the rest of the world by doing away with the granting of a patent to the first inventor. In March, Senator Diane Feinstein unsuccessfully introduced an amendment to the Patent Reform Act of 2011 to preserve the current first to invent process, protect small inventors and help preserve America's patent leadership. Her remarks which conclude by saying "If it ain't broke, don't fix it." are here.

Proponents of the bill, large mult-national companies and President Obama, say the measure could create high-paying jobs and protect US businesses' advantage in high-tech and other industries. Many inventors and small businesses worry that the bill would give big companies an unfair advantage. In a blog post, The Prevent American Invention Act, at Foreign Policy, Clyde Prestowitz writes that America's penchant for invention is due in large part to its patent system, which grants the original inventor patent rights even if another person or corporation files for the patent first. He explains “This is very helpful to individual inventors and small companies because it gives them time to test the viability and commercial potential of their inventions. It also protects them from those big corporations or others who might hear of their invention and rush to be first to patent it.”

In addition to favoring big corporations who can file patents as soon as they hear about a new invention, Prestowitz says that the bill would also give foreign inventors an advantage over Americans. “A German inventor files for a patent in Europe and then, under a bi-lateral treaty, a bit later for the same patent in the United States. Shortly afterward, an American files for a U.S. patent on a similar (not identical) invention. Under the proposed new legislation, the German application would be considered prior art that would block issuance of a U.S. patent to the American applicant. But the reverse situation would not block issuance of a European patent to the German applicant.”

For more on the pending legislation, see the Congressional Research Service Report Patent Reform in the 112th Congress: Innovation Issues and the authoritative insider's perspective on the benefits and drawbacks of proposed U.S. patent reforms Understanding Patent Reform Implications: Leading Lawyers on Defining Key Issues, Interpreting Current Proposed Legislation, and Projecting Future Developments (Call #KF3114 .U534 2009) available at the Brooklyn Law School Library.

US History of Red Ink

With the migration of Brooklyn Law School Library’s catalog to its new open source platform, the New Book List has changed. The former version had both subject arrangement and a title display of news titles. The new version has only a title list of items added to the collection in the past thirty days.

On the current list is Debtor Nation: The History of America in Red Ink (Politics and Society in Twentieth Century America) by Louis Hyman (Call #HG3756.U54 H96 2011), a well researched and highly footnoted book that is recommended reading. It argues that the present American patterns of debt are the result of long-term developments since just after World War I. The author explains that while personal debt has always existed, prior to 1917 it was mostly a personal relationship where a borrower turned to family members, coworkers and friends in times of need and, when those resources ran out, the local loan shark. Usury laws made it impossible for personal debt to be a normal business as it was never legal to charge interest rates high enough to turn a profit and lenders could not resell their customer’s debt or borrow against it. In the 1920s, a majority of states enacted the Uniform Small Loan Act designed to combat loan sharking and improve credit conditions for poor people by allowing higher interest rates than those permitted by most state usury laws. This led to the birth of the small loan company, the most widespread of which in the U.S. was Household Finance Company whose history is examined in detail by the author.

Up until just after World War I, most cars were sold for cash. To lure new customers, car manufacturers like Ford Motor and General Motors developed lending subsidiaries like GMAC so that by the late 1920s installment sales grew to 60% of the total number of car purchases. Moving forward to the period of the Great Depression to after WWII, the author describes how the federal government, with the creation of the Federal Housing Administration, remade the institution of the housing mortgage so that after the war, "suburban Americans left government-mortgaged homes in installment-financed cars to shop on revolving credit at shopping centers." This account of the explosion of consumer credit puts our current status as debtor nation in historical perspective. Anyone interested in our current credit crisis will enjoy this history of credit institutions in the 20th century America. Readers will be more knowledgeable and more thoughtful about the role of credit and our current economy and learn how, from the origins of car financing to the creation of subprime lending, little loans became big business.

Article 78 Petition on Bikeway Dismissed

In March, a post here discussed the Article 78 proceeding filed by opponents of the two-way parking separated experimental bicycle lane (EBL) on Prospect Park against the NYC Department of Transportation in Kings County Supreme Court. A NY Law Journal article, Brooklyn Bikeway Survives Court Challenge, reports that Brooklyn Supreme Court Justice Bert A. Bunyan dismissed the action without prejudice on the grounds that the statute of limitations had expired. In Seniors for Safety v. New York City Department of Transportation, Justice Bunyan wrote "The statute of limitations expired, at the latest, in November 2010, at which point no further event needed to take place in order for petitioners to claim to be aggrieved by the bikeway's presence." However, the judge ordered the city to turn over documents under a Freedom of Information Act request.

The controversy over the Bikeway has its proponents and opponents arguing on the issue of road safety for pedestrians and the resulting crowding of cars into the remaining narrow lanes. Opposed to the Bikeway are Seniors for Safety and Neighbors for Better Bike Lanes who claim that the bicyclists make the road unsafe for pedestrians and crowd cars. Transportation Alternatives, a bicyclists’ advocacy organization, said that after the two-way bike lane was installed, speeding decreased 70 percent. The issue is not yet resolved as the dismissal of the petition is without prejudice, and the judge granted the plaintiffs’ request for public documents under the Freedom of Information Law, saying that the DOT had to provide responsive document to the plaintiffs.

The opinion is instructive on the law relating to Special Proceedings under Article 78 particularly on the issue of exhaustion of remedies and the statutes of limitations, usually only four months or 120 days. Brooklyn Law School Library has on reserve at the circulation desk Civil Litigation in New York, 5th edition, by Oscar G. Chase and Robert A. Barker (Call # KFN5995.A7 C48 2007). See Chapter 24, Confronting Unlawful Government Activity: Article 78 and Related Remedies— A Procedural Bramble Bush. Reference Librarian Kathy Darvil’s New York Civil Practice: Selected Resources is designed for practitioners and students researching New York civil practice.

TRACFed New BLS Subscription

Statistics from thousands of pages of previously unpublished federal enforcement agency documents are available online to Brooklyn Law School Library users, thanks to a new subscription to TRACFED from Syracuse University. The service allows users to access and analyze online TRAC databases and provides information on federal prosecutions and tax audits from the FBI, Internal Revenue Service, Drug Enforcement Administration and more than 20 other federal agencies. The site provides access to cases referred to federal prosecutors but not prosecuted, not usually available. A researcher can look up the number of drug-related cases prosecuted by all of the federal agencies in a given area and run a comparison with the rest of the nation. Results come back as tables.

Operating out of Syracuse University, TRAC files hundreds of Freedom of Information Act requests each year and follows up on requests that have been stalled or denied. After acquiring documents, the Syracuse University statisticians render them understandable, sometimes by writing separate programs to decipher particularly cryptic codes. The site has been around for some time and was reviewed in the 2002 LLRX article Features - A Review of TRACFed: Lawyers Strike Gold Mining Government Data.

Prior to April 15 of this year, the Transactional Records Access Clearinghouse (TRAC) posted updates to much of its data on the Internal Revenue Service. Included in this edition are the following features all of which can be reached from TRAC's IRS Data Tools and Applications page.

• Audits - two applications graphically display changes in the number of field
and correspondence audits, both individual and corporate, for fiscal years 1992
through 2010.
• Graphical Highlights - national enforcement trends for corporate and individual audits along with information about levies, liens and
seizure activities.
• Criminal Enforcement - the latest figures from the Department of Justice on the criminal enforcement of cases referred by the IRS, presented with detailed maps, ranking tables, and individual district tables for the United States and each of 90 federal judicial districts.
• U.S. Code - an updated list of the most frequently cited lead charges that eventually led to formal charges or convictions.
• TRACFED - expanded information and exclusive data analysis tools are available on TRAC's newly expanded subscription site.

1L Resources, Tips and Tools

Brooklyn Law School will hold its convocation for the incoming law students, the Class of 2014 and the Class of 2015, on Monday, August 15 at the U.S. District Courthouse for the Eastern District of New York. Later in the week, the BLS Library will begin holding a series of nine orientation sessions from Wednesday, August 17 to Tuesday, September 13 to introduce the 1Ls to library resources. See the updated online research guide for first-year law students 1L Resources, Tips and Tools created to provide first-year law students with basic information regarding the law library and its services; study, exam, and stress tips; and information about BLS Library databases. The Guide has a section on the first year required courses with relevant hornbooks, treatises, and study aids, and CALI lessons. The BLS librarians look forward to working with the incoming class and recommend the essay How to Read a Legal Opinion: A Guide for New Law Students, by Orin S. Kerr, 11 Green Bag 2d 51, which explains what judicial opinions are, their structure, and what to look for when reading them.

Lawyers and Social Media

A February 2011 post cited the book Social Media for Lawyers: The Next Frontier by Carolyn Elefant and Nicole Black (Call #KF320.A9 E44 2010) as a practical resource for lawyers on how to use social media. Since then, Nicole Black who is of counsel to Fiandach & Fiandach in Rochester, NY has been tracking the issue in her blog Sui Generis. Her most recent post states that, while some lawyers may find social media useful to gain more clients or expand their professional networks, not every lawyer will benefit from using social media tools. The reasons range from the time spent on creating profiles and interacting with other users to potential ethical concerns that use of social media raises. One such ethical concern is lawyer use of PDAs, Smart Phones and Blackberries, which according to the ABA’s 2010 Legal Technology Survey Report (available at the Brooklyn Law School Library reference desk, Call #KF318.A1L44 2010) is at 78.9% of responding lawyers.

As the use of these devices increase, lawyers may send, receive and store confidential client information so that legal ethics obligations are triggered. The September 2010 New York State Bar Association’s Committee on Professional Ethics Opinion 842 addressed the ethical obligations of lawyers who choose to store confidential client information online using cloud computing services concluding that “A lawyer may use an online data storage system to store and back up client confidential information provided that the lawyer takes reasonable care to ensure that confidentiality will be maintained in a manner consistent with the lawyer’s obligations under Rule 1.6. In addition, the lawyer should stay abreast of technological advances to ensure that the storage system remains sufficiently advanced to protect the client’s information, and should monitor the changing law of privilege to ensure that storing the information online will not cause loss or waiver of any privilege.”

Most law firms that use web based email services like Gmail rely on cloud computing. With Gmail, email messages are not stored on the law office computer. It is accessed through the web browser on the firm’s computer. The data in these email messages is saved on Google’s Gmail servers which allow access to that data anywhere at any time. Lawyers who do not find social media helpful are probably using it already.

For more on the topic, see Information Security and Privacy: A Practical Guide for Global Executives, Lawyers and Technologists by Thomas Shaw (Call # KF390.5.C6 I545 2011). Chapter 7 on New and Emerging Technologies has a section on cloud computing and Chapter 8 is on the Role of Lawyers. Sui Generis completed a 4-part series on Cloud Computing with a recent blog entry. Nicole is in the process of writing a book about lawyers and cloud computing to be published by the American Bar Association.

Activist Indicted for JSTOR Theft

A NY Times article, Open-Access Advocate Is Arrested for Huge Download, reports on the indictment of 24-year-old open access activist Aaron Swartz for theft of more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. Swartz helped create RSS that allows people to receive automatic feeds of online notices and news. In 2008, he used an automated script to download more than 2 million documents from PACER, the website the federal judiciary uses to distribute court documents. PACER was quickly shut down and the FBI began an investigation, but found no wrong-doing. This time, the US Attorney for the District of Massachusetts obtained an indictment, charging him under the Computer Fraud and Abuse Act with computer fraud, wire fraud, and unlawfully obtaining information from a protected computer. If convicted, he could face up to 35 years in prison.

For information on the CFAA, see the Brooklyn Law School Library's copy of Computer Fraud and Abuse Laws: An Overview of Federal Criminal Laws by Charles Doyle (Call #HV6773.2 .D58 2002) as well as the Congressional Research Service’s report titled Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws.

Critics of the indictment view it as part of a campaign by the US government to place increasing restrictions and controls on internet activity. However one views Swartz’ actions, the government may have difficulty proving the wire fraud charges under 18 U.S.C. § 1343 based on the lack of intent to defraud. Section (a)(4) was meant to prosecute individuals who stole information for the purpose of fraud. It is unlikely that Swartz, a long-time open access information activist, downloaded millions of research papers from JSTOR with the intent of defrauding people. 18 U.S.C. § 1030(a)(5)(B) requires that the prosecutor prove the defendant recklessly damaged a protected computer. Yet JSTOR “explained they’ve suffered no loss or damage.” 18 U.S.C. § 1030(a)(2), the strongest claim against Swartz, makes it illegal for anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.”

Lawrence Lessig, a mentor of Swartz, in a comment on the case said "Even if the facts the government alleges are true, I am not sure they constitute a crime. There is considerable uncertainty in this area of the law. Many wonder about the quick conversion of terms-of-service into criminal prosecution. But that’s a question the courts will ultimately have to resolve."

David Segal, executive director of Demand Progress, says the persecution makes no sense, comparing it to “trying to put someone in jail for allegedly checking too many books out of the library.” Online activist Gregory Maxwell, showed support for Swartz’s actions by releasing a 32-gigabyte collection of almost 19,000 documents from JSTOR to the Pirate Bay, a site which, in the past, has been accused of encouraging illegal downloading. Maxwell, points to the fact that all of the documents were written before 1923 and should therefore be under public domain. See the Wired article Huge Trove of Academic Docs Posted Online in Response to Activist Arrest.

Legislative History Research

Patrons at Brooklyn Law School Library can access the print and electronic versions of Legal Reference Services Quarterly’s latest Volume No. 30, Issues 1 and 2 (2011), a Special Issue: Determining Legislative Intent in State Courts: Selected Methods and Sources. Two articles that relate to legislative history in jurisdictions in the metropolitan tri-state are “Connecticut Legislative History” by Janis Fusaris (of the University of Connecticut School of Law Library), 30 Legal Ref. Services Q. 17 (2011), and "Using Legislative Histories to Determine Legislative Intent in New Jersey" by Barbara H. Garavaglia (of the University of Michigan Law Library), 30 Legal Ref. Services Q. 71 (2011). Linda Holmes, Associate Librarian at Brooklyn Law School has created a LibGuide on New York State Legislative History Research briefly describes the sources that one should consult when compiling the legislative history of a New York State statute.