Labor Day 2012

On Labor Day 2012, the American work force faces persistent high unemployment and a concentration of wealth and economic power not seen since the first Labor Day in 1894. That year, President Grover Cleveland signed a bill, S. 730, introduced in the United States and passed by the 53rd Congress, making Labor Day a legal holiday. In that Gilded Age, America was in the midst of an economic depression, a growing concentration of corporate wealth and power, and suppression of labor unions. Just six day before signing the Labor Day legislation, the President ordered federal troops to end the Pullman Strike between labor unions and railroads protesting deep wage cuts leaving more than 30 workers dead and the strike’s leader, Eugene V. Debs, in jail.

For more on this chapter of American history, see Brooklyn Law Library’s copy of The Pullman Case: The Clash of Labor and Capital in Industrial America by David Ray Papke (Call #KF223.D435 P37 1999) and In re Debs, 158 U.S. 564 (1895) where the Supreme Court upheld the use of contempt proceedings against the leader of the Pullman Strike saying that “it is a lesson which cannot be learned too soon or too thoroughly that under this government . . . no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the cooperation of a mob, with its accompanying acts of violence”). Yet, in those bleak days, American workers had something to celebrate: a broad notion of solidarity that sustained and strengthened the labor movement in years to come, working to build the middle class and strengthen our democracy.

Today, the rate of union membership is under 12 percent, the lowest in more than 70 years. This trend is driven by some employers and state governments. Since 2010, legislatures in dozens of states including Indiana, Ohio, and Wisconsin have restricted collective bargaining rights, pass so-called “right-to-work” laws, and made it more difficult for unions to collect dues. Anti-labor politicians use the economic downturn to scapegoat workers and their unions, reinforcing the increasing concentration of wealth, reducing the purchasing power needed to revive the economy and denying workers a voice in their workplaces. With the decline of unions and the increased flow corporate money into politics after Citizens United v. Federal Election Commission, 558 US 50, (2010), the wealthy have more influence than ever over public policy and legislation even though the Supreme Court equated the electioneering speech conducted by labor unions and corporations

For more on the history of Labor Day, see the US Department of Labor website. Happy Labor Day, everyone!

Law Student Substance Abuse

Researchers generally agree that law students experience significant declines in health after beginning law school. While 1L students start law school with depression rates similar to the general population, they come out of their first year of law school with higher rates of depression. The stress about the Socratic Method and law school's competitive environment leads to lack of time for relaxation, stress about grades, all of which can contribute to students' decreases in well-being. This may lead to self-destructive behavior including drug and alcohol abuse. For more, see Suzanne C.Segerstrom, Perceptions of Stress and Control in the First Semester of Law School, 32 Willamette L. Rev. 593 (1996) available in Brooklyn Law School Library’s subscription to HeinOnline.

Law students experiencing this kind of stress are advised to consult the New York City Bar Association Lawyer Assistance Program, a free, confidential service, available to attorneys, judges, law students and their family members, in New York City, who are struggling with alcohol or drug abuse, depression, anxiety, stress, as well as other addictions and mental health issues. If you answer "yes" to one or more of the following questions, adapted from a brochure from the New York State Lawyer Assistance Trust, contact the Confidential Helpline of at (212) 302-5787 or seek other help.

Have your professors, classmates, family, or friends suggested that your work is being affected by your addictive behavior or your moods?
Do you ever feel that you just can't face certain situations or that you need a drink or drug to do so?
Do you drink or use drugs alone and avoid contact with others?
Have you ever had a loss of memory while using alcohol or drugs, although apparently functioning (e.g., a blackout)?
Do you ever use alcohol or drugs before a class, exam, or social function to calm your nerves or improve your performance?
Have you missed or rescheduled a class, exam, or other appointment because you felt unable to function?
Is your addictive behavior or your mental state making you careless of your scholastic responsibilities, family's welfare, or other personal obligations?
Do you minimize the amount of substances you actually are using or the way you really feel?
Have you ever been hospitalized directly or indirectly as a result of your drinking or drug use?
Do you find you are sleeping or eating substantially less or more?
Have you found yourself thinking about harming yourself?

Regulation of Doping in Sports

Lance Armstrong’s legal challenges to doping allegations seem to be over with his statement saying “There comes a point in every man's life when he has to say, ‘Enough is enough.’ For me, that time is now.” The statement came after US District Court Judge Sam Sparks’ Order in Armstrong v. Tygart and the United States Anti-Doping Agency (USADA) dismissing his complaint alleging due process violations. The Order is worth reading for its content on international and US entities that regulate sport, like the International Olympic Committee, the Union Cycliste Internationale (UCI), the US Olympic Committee (USOC), and USA Cycling. The court also cites to the World Anti-Doping Program (WADA ), whose site has comprehensive information on international anti-doping standards, a Digital Library with links to free educational information, and a Legal Library with links to articles on the World Anti-Doping Code, advisory and legal opinions, case law, and national legislation. Also of interest is the judge’s criticism of USADA.

Armstrong challenged USADA's right to bring anti-doping rule violations against him and forcing him into arbitration without providing the evidence against him beforehand. The judge’s dismissed the complaint without prejudice writing “If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court's attention in an appropriate manner, USADA is unlikely to appreciate the result." The judge also wrote "there are troubling aspects of this case, not least of which is USADA's apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI's equally evident desire not to proceed against him." He also noted "the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including - incredibly - several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong's allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC."

The judge noted the conflict between USADA and the UCI, which claims it should be the body to decide if anti-doping rule violations should be issued in this case, and USA Cycling who came out in support of the UCI's right to argue this point: "As mystifying as USADA's election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies are apparently unable to work together to accomplish their shared goal - the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts."

For more on doping in sports, see Brooklyn Law Library’s A Guide to the World Anti-Doping Code: A Fight for the Spirit of Sport by Paul David (Call # RC1230 .D38 2008). Chapters include Development of principles relating to anti-doping regimes: the role of the Court of Arbitration for Sport -- Overview of the Code and the World Anti-Doping Program -- Nature of the Code and its interpretation and application -- Articles 1 and 2 of the Code: anti-doping rule violations under the Code -- Article 3 of the Code: the proof of anti-doping rule violations under the Code -- Responsibility for testing and investigations, results management, and hearings -- Sanctions for anti-doping rule violations: Articles 9 and 10 of the Code -- Article 13: appeals under the Code -- Challenges to the Code in the courts.

Credit Card Litigation Questioned

A NY Times DealBook article, Problems Riddle Moves to Collect Credit Card Debt, quotes Kings County Supreme Court Judge Noach Dear, Brooklyn Law School Class of 1992, as saying “I would say that roughly 90 percent of the credit card lawsuits are flawed and can’t prove the person owes the debt.” Judge Dear, who won election in 2007 to a 10 year term (2008 to 2019), has been Acting Supreme Court Justice since 2010 and presides on a daily basis over as many as 100 cases involving debt collection practices of credit card companies. A NY Times editorial, Robo Redux, noted that “Judge Dear recently dismissed a suit brought by American Express against a woman who contested the amount being demanded. The Amex employee who testified, the judge noted, gave what he called ‘robo-testimony’ — the same generic evidence given in other cases.” The Consumer Credit Fairness Act, which has been pending in the New York Legislature, would incorporate changes to the present state of consumer debt litigation practice and help level the playing field for unrepresented defendants.

SARA, the BLS Library catalog, has in its listing the internet version of the Fair Debt Collection Practices Act Annual Report 2012 published by the Consumer Financial Protection Bureau. The report summarizes the activities of the Bureau in administering the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. §§ 1692 et seq., during the past year.

1L Guides to Law School

SARA, the Brooklyn Law School Library catalog, has a Tag cloud feature that allows users to generate clouds for popular subjects. Users who log in to SARA can add tags for their own use. Library staff members check user-created tags to approve or reject them for public display. If a user-created tag is approved, it will show up in the tag cloud.

The tag 1L Guide has a list of three items: Demystifying the First Year: A Guide to the 1L Experience by Albert J. Moore and David A. Binder (Call #KF283 .M66 2010); Learning Outside the Box: A Handbook for Law Students Who Learn Differently by Leah M. Christensen (Call #KF283 .C48 2011); and Succeeding in Law School by Herbert N. Ramy (Call #KF283 .R36 2010). The first two of these items are located in the Main Collection in the lower level of the library. The third item is on Reserve at the Circulation Desk on the 1st floor.

Also on reserve at the Circulation Desk is the 5th edition of the West Nutshell Introduction to The Study and Practice of Law in a Nutshell by Kenney Hegland (Call # KF273 .H43 2008). Incoming 1L's can read the Westlaw welcome page excerpt Law School: What To Expect & How To Cope including Fear and Loathing in the First Year, I'm the Dumbest One Here!, Being Called on in Class: Herein the Socratic Method, and The Second and Third Years. The book covers reading and briefing cases, preparing for class, outlining and study groups and taking exams. It has exercises to apply to learned material. It also focuses on legal analysis: Why do courts follow precedent? How are cases applied and distinguished? How is ambiguous language interpreted? There are chapters on legal writing and on oral argument. These chapters will help in first year writing and Moot Court Programs.

Consumer Law Research

Among the 64 titles in the Brooklyn Law School Library’s most recent New Books List is Lee Peoples’ Consumer Law: A Legal Research Guide (Call #KF241.C64 P46 2012). Researchers of consumer law need to focus on several interrelated subject areas that are governed by both state and federal laws, including a complex array of administrative agencies and regulations. This legal research guide provides a pathway for researchers of consumer law. It begins by laying out a research strategy for tackling consumer law issues. A thorough introduction to secondary sources is included. The most important treatises, looseleafs, and practice resources for consumer law and the related fields of bankruptcy, sales, real estate, mortgages, and banking law are discussed. There is an overview of important federal statutes related to consumer law and a discussion of the administrative agencies charged with implementing and enforcing consumer law.

Peoples, Associate Professor of Law Library Science and Law Library Director, Oklahoma City University School of Law, also authored a 30 minute CALI lesson Consumer Law Research available in SARA, the BLS Library catalog. The lesson, a First Year Lesson Topic, introduces students to consumer law research as they assist a hypothetical client "Joe" who is the victim of a used car salesman's sleazy tactics. Students will develop strategies for researching consumer law issues on both state and federal levels. It covers the "major player" consumer law statutes and the agencies empowered by those statutes as well as consumer law treatises, looseleafs, and practitioner resources in print and online formats.

Limits on Government Endorsement

Brooklyn Law School Professor Nelson Tebbe recently posted Government Endorsement and Disparagement on SSRN. The abstract reads.

What are the constitutional limits on government endorsement? Recently, a sense has been spreading that when the government speaks on its own account, it faces few restrictions. That impression has been fed by two doctrines and their accompanying literatures. First, the Court’s cases developing the government speech doctrine have implied that the only constitutional restriction on government expression is the Establishment Clause, and scholars have adopted that assumption. Officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Second, experts on religious freedom likewise have assumed that there is no secular Establishment Clause. So the belief that government is free to endorse and denigrate secular ideas is common, thanks in part to the Supreme Court and in part to scholarship on free speech and religious freedom. But it is mistaken. In this Article, I argue that in fact the Constitution properly limits government endorsement through multiple provisions. I give examples of situations where official expression runs up against such limitations, including racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproductive decisions. Limits in these areas are grounded in equal protection, due process, and free speech itself. Together, my examples suggest a constitutional theme, government nondisparagement that has been overlooked. Drawing out that theme, I suggest new contributions to theoretical debates surrounding political morality, free speech, and religious freedom.

Make Friends With A Librarian

The Law Librarian Blog has a post that incoming 1Ls ought to read: New Law Students: Make Friends With A Librarian. The blog post is reprinted below:

U.S. News & World Report has a short post out for new law students who will start their law school career in the next few weeks. It offers four points for navigating law school:

1. Come prepared
2. Focus on finals
3. Make friends
4. Remove distractions

I’d like to focus for a moment on the third one. The author suggests making connections within the law school and the wider university through activities and other diversions as a break from the law school routine. That’s great advice as law school can be a highly competitive grind. I’d like to make one other suggestion that may help the new student: get to know a librarian. Why? Because we know stuff that students do not.

We know the cycle of the law school academic year. It normally doesn’t shock us when 1Ls invade the library for the legal writing treasure hunt. It’s not exactly the running of the bulls, but there are certain parallels. For students it’s a new experience. For us, it’s “been there done that.” Don’t be afraid to ask questions, even for the simple stuff. There’s usually a ready answer that can make a student’s life easier.

We also know the resources. It may be nice to have all of those apps on tablets and phones. And I’m sure there are plenty of new law students who have a lot of experience doing research in college. Legal research, however, is a different animal. Lexis, Westlaw, and Bloomberg Law are not free in the wild. The mechanics can be a challenge despite the trend to provide Google-style interfaces. Librarians understand how this stuff works and can help.

I’ll offer related word of advice: not everything is online. More important, not everything is online and is free. It’s more often than not a pay for play world. Luckily the law library has licensed a lot of the good stuff. We can tell students what information is easily accessible and what is not. We can also explain how to get remote access to stuff, like articles, hard to find documents, exams, and other materials.

Librarians know the law school. We’re not the concierge for the school, but we know how it works. We can tell you generally which office likely handles what responsibility. We can tell you where are public copiers, scanners, microform readers (yes, they are still necessary) and other useful resources may be. We can also tell you generally what your expectations should be in using them. The library is probably the friendliest location in the law school. Students use the library facility regularly in spite of the integration of technology into the curriculum. We try to make the place a comfortable and quiet space to study. Take advantage of that.

So, make friends with a librarian. We won’t break the rules for you. But our institutional knowledge of the law program and legal information can make a student’s life easier. We even know where the bathrooms are located. Don’t be afraid to ask.

Episode 083 – Conversation with BLS Prof. William Araiza

Episode 083 – Conversation with BLS Prof. William Araiza.mp3

In this podcast, Brooklyn Law School Professor William D. Araiza discusses his recent article The Public Trust Doctrine as an Interpretive Canon, 45 U.C. Davis L. Rev. (2012). A full text PDF version of the article is available here. In the article, Professor Araiza proposes an expanded version of the public trust doctrine as an interpretive canon and suggests that a canon-based understanding fits both the doctrine’s foundational importance in American law and its uncertain doctrinal grounding. These characteristics have led scholars to advocate a canon approach for other foundational legal rules and Professor Araiza submits that an analogous analysis might support a similar approach to the public trust concept. In applying the canon approach, he explains how a canon would operate as a preliminary matter, and then considers the canon’s proper scope and concrete implementation. He then considers and answers objections to the canon approach, ultimately concluding that none of them defeats the basic thrust of the argument. The podcast concludes using the illustration of recent court actions seeking to use the public trust doctrine to enjoin activity that contributes to climate change. See article Public Trust Climate Litigation: On Life Support, But Still Breathing for Now. For more on the Public Trust Doctrine, see Property and the Public Trust Doctrine by Randy T. Simmons in the BLS Library catalog. A full text version of that item is available at this link.

Domestic Intelligence

Brooklyn Law School Visiting Assistant Professor of Law Emily Berman has posted Domestic Intelligence: New Powers, New Risks (New York University School of Law, Brennan Center for Justice, January 18, 2011) on SSRN. Prof. Berman joins Brooklyn Law School as a Visiting Assistant Professor for a two-year term beginning in the upcoming fall 2012 semester. Her affiliation is with New York University School of Law, where she is a Furman Fellow and Brennan Center Fellow.

The 72 page paper is also available in full text at this link. Here is the abstract:

This paper assesses historical evolution of guidelines governing FBI intelligence-collection operations and discusses the risks to civil liberties that the current rules pose.