Thursday, April 28, 2011
In this podcast, Brooklyn Law School Professor Lawrence Solan talks about his recent book The Language of Statutes: Laws and Their Interpretation (2010) which is on reserve as part of the BLS Library collection. The book is a balanced view of statutory interpretation and the role of the courts. It examines the jurisprudential and practical aspects of language scholarship for statutory interpretation. In the interview, Prof. Solan relates his own personal experience with the ambiguous interpretation of a statute as well as his own scholarly study of the federal bribery statute and its extensive appellate review. The book joins law, linguistics, and cognitive science to show that statutory interpretation is not in need of a major overhaul as some have suggested. He argues that when cases on the margin occur that the legislature did not foresee, judges must inevitably undertake statutory interpretation. The Language of Statutes follows Prof. Solan's earlier work The Language of Judges and an extensive list of publications which are listed here.
Monday, April 25, 2011
The People’s Budget which the Congressional Progressive Caucus recently introduced has as part of its corporate tax reform a derivatives and speculation tax. For such a proposal to work, the unanimous support of all G20 states is needed. The likelihood of enactment of an FTT in the US is low. A Bloomberg report from 2009 has Treasury Secretary Geithner and the Obama administration opposing it as unworkable since participants would find ways to circumvent the expense and almost all Republican members of the 112th Congress have signed a pledge to vote against all new taxes.
In January of this year, the Center for Economic and Policy Research (CEPR) issued a report called The Deficit-Reducing Potential of a Financial Speculation Tax showing that a 0.25% tax on trades of stocks, options, futures and other financial instruments could generate $40 billion a year for the Treasury. The idea gained support from French President Nicolas Sarkozy who said a financial transaction tax is one of his top priorities as leader of the Group of 20 nations this year. Earlier this month, an article in the Guardian reported that a thousand economists from 53 countries urged the G20 finance ministers meeting in Washington, to adopt a "Robin Hood tax" or Tobin tax on transactions in financial markets as "an idea that has come of age" arguing that even if such a tax was levied at just 0.05%, it could raise hundreds of billions of dollars, which could be ploughed into development projects. This is the launch video for the Robin Hood Tax campaign.
The International Monetary Fund (IMF) issued a Working Paper called Taxing Financial Transactions: Issues and Evidence in March 2011. Dean Baker, co-director at CEPR and author of its report, concluded:
This is not just a hypothetical; the revenue collected by the U.K. on its more narrow tax on stock trades shows that it is possible to collect large amounts of money through such taxes. Furthermore, the incidence would be almost entirely on the financial industry and those involved in very active trading.
The potential revenue from such a tax far exceeds the amount of money involved in most items that are heavily debated in Congress, such as the extension of unemployment benefits or the tax breaks going to the
wealthiest two percent of the population. The revenue from an FST also vastly exceeds the size of the projected Social Security shortfall. Given the amount of money potentially at stake and the progressivity of the tax, it is surprising that it does not feature more prominently in policy debates. It is not clear what possible downsides would be posed by such a tax, except for its negative impact on the income of people connected with the financial industry.
Thursday, April 21, 2011
Drawing on his own experiences as an attorney representing prominent Hollywood, publishing, new media and technology clients in high-profile copyright, trademark, patent, right of publicity, defamation and First Amendment litigation, the author questions some of our most basic assumptions about copyright law by highlighting the shocking amount of infringement liability that an average person commits in a single day. The 188 page book is based on Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537 (2007), a short 14 page article that traces the liability that a hypothetical law professor named "John" unwittingly incurs over the course of a single day engaging in ordinary behavior like singing and taking photographs that constitute copyright infringement. The imaginary professor is shown to be liable for up to $12.45 million in civil damages, as well as criminal charges, even without the use of file-sharing networks. Copyright law now affects us all as America has become a nation of copyright infringers where the average citizen violates copyright law on a daily basis. Advances in technology not only provide ordinary individuals with access to their own home printing press in their computers but also allow copyright holders to detect and enforce acts of infringement.
Both the article and the book show that there is a gap between copyright law and copyright norms. The author argues for a reexamination of our current copyright regime that threatens to make criminals of us all. His proposed copyright reforms fall into three broad categories. The first is the restoration of balance between users and creators by a series of reforms such as penalizing rightsholders who make false representations to effect the takedown of allegedly infringing content online; providing defendants with the ability to recover attorney fees; and providing defense mitigation mechanisms for innocent infringement. The second is a repeal of the registration requirement under Sec. 412 of the Copyright Act for recovery of attorney fees to help unsophisticated creators enforce their rights fully along with a cap on the amount of statutory damages with a realistic multiplier of actual damages to reduce the in terrorem effect of modern copyright litigation. The most radical proposal is the adoption of an intermediate liability proposal to encourage transformative activity, advance freedom of speech, and promote artistic innovation. Infringement Nation makes a compelling case for reforming existing doctrine and the development of a copyright 2.0 and would make an excellent addition to the reading list of any course on copyright law as it will help students understand the fundamentals of intellectual property.
Tuesday, April 19, 2011
From a cost perspective, this switch affects practitioners who can afford to use only a single service rather than both services. It has little meaning for law students who freely access both Westlaw and LexisNexis. Of course, Westlaw and LexisNexis are not free in law school. The Brooklyn Law School Library pays annual subscription fees, at lower rates than what firms pay, so students can access these services. Law students who prefer Westlaw will now have to use LexisNexis if they want to access ALM publications like the NY Law Journal. BLS students can also read articles from the NY Law Journal website for which the BLS Library has a paid subscription. User names and passwords are available at the reference desk.
The National Law Journal has more on the agreement at this link. In the aftermath of the agreement, Bill Pollack, the CEO of ALM, has called for new content on a post at Bill's Blog.
Saturday, April 16, 2011
Sadly, the just released 2012 Washington budget does not include funding for the Statistical Compendia Branch which would mean the elimination of not only the Statistical Abstract, but all titles produced by that branch (State and Metropolitan Area Data Book, County and City Data Book, USA Counties, Quick Facts) meaning that no new editions would be produced in print or online. The Census Bureau Budget Estimates to Congress for FY2012 show that that termination of the Statistical Abstract will result in a decrease in spending of $2.9 million and the loss of 24 full time employees. A Library Journal article Statistical Abstract Faces an Untimely Death has more details. The American Library Association has issued an “Action Alert,” advising members to “contact appropriators and tell them to oppose the defunding of the Statistical Compendia Branch.” Readers can sign a petition to let Congress know how important it is to fund access to government collected data through this very useful resource, a favorite of librarians and researchers. Readers can also join the Save the U.S. Statistical Abstract Facebook group.
Thursday, April 14, 2011
Yesterday's Remarks by the President on Fiscal Policy (read transcript) laid out a budget plan that differs sharply from one offered by the opposing party. See chart comparing the two plans at the NY Times website which shows major differences in tax policy particulary concerning the tax rates for high income earners: the Republican plan calls for lowering the top tax rate to 25%; the President's plan calls for the expiration of the Bush tax cuts and restoring the top tax rate to 39.6%. The President stated "In the last decade, the average income of the bottom 90 percent of all working Americans actually declined. Meanwhile, the top 1 percent saw their income rise by an average of more than a quarter of a million dollars each." His call for Congress "to reform our individual tax code so that it is fair and simple -- so that the amount of taxes you pay isn’t determined by what kind of accountant you can afford" is likely to meet strong opposition. The Tax Prof Blog has two blog posts that make clear how far apart views are on the issue of higher taxes for the wealthy. The first cites a Wall Street Journal opinion piece called Obama's Soak-the-Rich Tax Hikes Won't Work by Alan Reynolds. The Brooklyn Law School Library has in its collection an item written by Reynolds entitled The Microsoft Antitrust Appeal: Judge Jackson's "Findings of Fact" Revisited (Call #KF228.U5 R48 2001).
The Tax Prof Blog has two blog posts that make clear how far apart views are on the issue of higher taxes for the wealthy. The first cites a Wall Street Journal opinion piece called Obama's Soak-the-Rich Tax Hikes Won't Work by Alan Reynolds. The Brooklyn Law School Library has in its collection an item written by Reynolds entitled The Microsoft Antitrust Appeal: Judge Jackson's "Findings of Fact" Revisited (Call #KF228.U5 R48 2001).
Tuesday, April 12, 2011
Another notable Union outpost in the Confederacy was Fort Monroe located near Hampton Roads, Virginia at the mouth of the Chesapeake Bay. The NY Times Magazine article How Slavery Really Ended in America by historian Adam Goodhart is a fascinating story about three slaves seeking refuge at the fort. It was there that slavery first ended in America, not by the courage of Lincoln, other politicians or Abolitionists but by the unusual expertise of a lawyer pressed into military service providing the legal argument that would free not only the three men, but an entire nation of slaves.The Brooklyn Law School Library has in its collection Civil War Lawyers: Constitutional Questions, Courtroom Dramas, and the Men Behind Them by Arthur T. Downey (Call #KF366 .D69 2010) a comprehensive look at the role of the law–and of lawyers–during the Civil War. Great Constitutional issues were addressed by the Supreme Court in tense courtrooms where individual lives were at stake. Presidents struggled with the legality of their actions, including questions on habeas corpus and military commissions that still have relevance today.
The American Bar Association, publisher of the book, says that many of the lawyers prominent during the Civil War period were not only aware of each other professionally, but they had also tried cases with and against each other before the War. Jey members of Lincoln's cabinet and diplomatic appointees were lawyers. So too were the five men who attended the Hampton Roads Peace Conference in February 1865 with Lincoln to prevent the outbreak of War. The book's appendix contains more than 100 biographies of the lawyers of the time, a look at the cases in which the lawyers crossed paths before the War, a detailed timeline of Civil War events, and period photos and editorial cartoons.
Thursday, April 7, 2011
National Library Week began more than 50 years ago when research showed that Americans were spending less on books and more on radios, televisions and musical instruments. The first National Library Week was observed in 1958 with the theme “Wake Up and Read!” This year, noted lawyer John Grisham, author of many legal thrillers including The Firm (Call # PS3557.R53 F57 1991), is Honorary Chair. See the video featuring him talking about libraries at the ALA Annual Conference in Washington.
To commermorate National Library Week this year, the American Association of Law Libraries' Research Instruction and Patron Services Special Interest Section published its 19th Annual Legal Research Teach-In Kit on a variety of topics including health and medical law, animal law and Google Scholar.
Tuesday, April 5, 2011
Osman explains that the gentrification of Brooklyn was not the result of the efforts of banks, developers, and speculators, but of a grassroots movement. After the World War II, the first area for gentrification was Brooklyn Heights, America's first suburb established in the early 19th century. Its housing stock, originally built for the wealthy, had become the distressed home of literary figures such as Walt Whitman, Thomas Wolfe, W.H. Auden, and Truman Capote. In the 50s, mostly white transplants from Manhattan and the suburbs bought up rundown townhouses at cheap prices, and restored them to their former glory. Some of these houses had been abandoned in the era of white flight while others become the overcrowded homes of the poor, the old, and the transient many of whom faced eviction by the new owners. These acts of displacement show the downside of gentrification: class privilege.
The gentrification movement reached beyond Brooklyn Heights to Boerum Hill, Cobble Hill, Clinton Hill, Prospect Heights, Lefferts Gardens, and Carroll Gardens. What followed were new community groups who fought banks unwilling to issue mortgages in old inner-city districts; developers and city planners bent on bulldozing old neighborhoods; and machine politicians who preferred patronage over the reforms which the newcomers advocated. The story of the Brooklyn Brownstone is worth reading for anyone interested in urban planning. As the book’s author states: "In three decades of overwhelmingly bad news for American cities, decimated by white flight, racial unrest, and deindustrialization, how could the brownstone revitalization movement be considered anything but a remarkable and unexpected success?"
Saturday, April 2, 2011
He then goes on to address the effectiveness of long-term sentences for drug offences in reducing crime as well as the disparity in sentencing for offences involving cocaine in powder versus crack form. In the end, he follows the precedent of US v. Moore 54 F.3d 92 (2d Cir. 1995) that mandatory minimum sentences do not violate equal protection as well as precedent that Congress did not enact the sentencing disparity in the treatment of crack cocaine versus powder cocaine with a discriminatory intent (a ratio of 100 to 1 ratio under the Anti-Drug Abuse Act of 1986 later reduced to a ratio of 17.8 to 1 by The Fairness in Sentencing Act of 2010). But his statements that mandatory minimum sentencing provisions prevent the exercise of a fundamental judicial duty, that lengthy incarcertion fails to serve the purposes of sentencing, and his strong suggesion to revisit precedent is a likely basis for future challenges to lengthy drug sentences for failure to comply with 18 U.S.C. § 3553(a).
The recent entry at Sentencing Law and Policy by Prof. Doug Berman contains excerpts from the opinion including these stirring words:
Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape. Otherwise, its vaunted belief in redemption and deterrence—both specific and general—is a euphemism for cruelty. These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation. Even now, they are capable of useful lives, lived lawfully. For further reading, see Crack Pipes and Policing: A Case Study of Institutional Racism and Remedial Action in Cleveland at 33 Law & Policy 179 (April 2011) availalble at the Brooklyn Law Library circulation desk.