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).