Law Students Pro Bono

Earlier this month, New York State Court of Appeals Chief Judge Jonathan Lippman issued an Order making New York the first state to require would-be lawyers to perform free legal work as a prerequisite for admission to the bar. Any law student planning on practicing in New York State will be required to perform a minimum of 50 hours of pro bono work prior to filing an application for admission with the appropriate Appellate Division department of the Supreme Court. When the pro bono requirement was first announced in May, legal professionals thought that it would put an unfair burden on law school graduates with large student loan debt. Others were concerned that new attorneys might not be up to the challenges presented to them with so little experience. Regardless of these and all other opinions, the Order will cover students entering law schools as of January 1st, 2013. The rule applies to those admitted to the NY bar on or after Jan. 1, 2015, meaning students currently in their third year of law school will be exempt.

The pro bono work can be contributed to civil rights organizations, nonprofits, those who cannot afford personal legal services or any branch of the U.S. government. They can put in the hours at any point between completing their first year of school and when they apply for their New York State license. And as long as the law student is supervised by a judge, a faculty member or a currently practicing lawyer, they can perform the pro bono in any state or territory of the United States, the District of Columbia, or any foreign country. The Report of the Advisory Committee on New York State Pro Bono Bar Admission Requirements stated that the Committee consulted with deans and representatives of the 15 New York State law schools to understand the clinical and other programs that are available in law schools, the resources available to assist students in complying with this proposed rule, their experience in administering pro bono projects and their concerns about foreign-educated students in LL.M. programs. In addition the November 2011 Report of the Task Force to Expand Access to Civil Legal Services in New York found that “63 percent of New Yorkers are unrepresented at statutorily required settlement conferences in foreclosure cases, and 90 percent of the reports from civil legal services providers in New York documented that they had to turn away the same number or even more potential clients than they did just one year ago.”

The Brooklyn Law School Library has in its collection Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession (Call #KF299.P8 P745 2009). The book is a collection of essays by scholars examining the history, conditions, organization, and strategies of pro bono lawyering tracing the American Bar Association's campaign to hold lawyers accountable for a commitment to public service and to encourage public service within law schools. The essays investigate the evolving role of pro bono in the legal profession and in law schools.

Pardons and Deportation

Brooklyn Law School Professor Stacy Caplow has written a new article, Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation. It is posted on SSRN and the abstract reads:

An obscure provision of the Immigration and Nationality Act allows an immigrant convicted of a wide range of crimes that are grounds for deportation to avoid this fate if pardoned by a chief executive. In the current era of expansion of the categories of crimes that constitute grounds for deportation and the shrinkage of equitable forms of relief, a pardon presents a vehicle for ameliorating these harsh effects. But few presidents or governors take advantage of this opportunity, even when the individual facing deportation is a long-term lawful resident whose transgression occurred long ago. During a few months in 2010, New York Governor David A. Patterson broke this trend to establish a pardon panel specifically to consider applications from immigrants. This article argues that Governor Patterson's resolute and courageous, but ephemeral example presents a model for governors in all states to exercise discretion on behalf of individuals who deserve the exercise of mercy and justice that a full and unconditional pardon confers, particularly when the permanent exile they face far exceeds their wronging and is disproportionate to their well-established character.

Borden and Reiss on REMICs

Brooklyn Law School Professors Bradley Borden and David Reiss have co-authored a new 14 page scholarly article Wall Street Rules Applied to REMIC Classification. In addition to being posted on SSRN, a shorter version of the article appeared in Thomson Reuters News & Insights earlier this month. The SSRN abstract reads:

Investors in mortgage-backed securities, built on the shoulders of the tax-advantaged Real Estate Mortgage Investment Conduit (“REMIC”), may be facing extraordinary tax losses because of how bankers and lawyers structured these securities. This calamity is compounded by the fact that those professional advisors should have known that the REMICs they created were flawed from the start. If these losses are realized, those professionals will face suits for damages so large that they could put them out of business.

The Federal Tax Glossary (available in the BLS Library subscription to CCH Intelliconnect - password required) defines a REMIC as an "entity that holds a fixed pool of mortgages and issues multiple classes of interests in itself to investors. An entity qualifies as a REMIC if it makes an election to be treated as a REMIC for federal income tax purposes and meets certain requirements as to its assets and investors' interests. An entity that qualifies as a REMIC is generally treated like a partnership with its income passed through to its interest holders. However, the REMIC is subject to tax on prohibited transactions, income from foreclosure property, and on contributions received after its startup date." SARA, the BLS Library catalog, links to BNA Bloomberg Tax Management Portfolio 741, REMICs, FASITs and Other Mortgage-Backed Securities which discusses the taxation of holders and issuers of Mortgage-Backed Securities and various tax reporting requirements.

Debate on Capital Gains Tax

Members of the House and Senate held a rare joint meeting of the House Ways and Means Committee and the Senate Finance Committee to hear testimony from business and academic experts on the capital gains tax. The current tax rate for capital gains is 15%. If Congress lets the Bush-era tax rates expire at the end of 2012, capital gains will be taxed at 25%. By comparison, ordinary income is taxed up to 35%. Capital gains have long been taxed at a different rate than ordinary income in order to encourage investment. Lawmakers are considering whether the capital gains tax rate should stay at 15 % or move closer to the tax rate imposed on ordinary income.

The BNA Daily Tax Report, Witnesses Split on Whether Capital Gains Tax Rate Should Be Raised or Left Low, available through the Brooklyn Law School’s subscription to BloombergLaw (password required), said that “some witnesses said the rate should be left low to help jump-start investment and job creation and others said keeping the rate low would require significant trade-offs elsewhere.” Witness testimony is available at the Senate Finance Commitee website. Syracuse University Professor Leonard Burman told lawmakers that the tax system needs to be relatively neutral. “Low capital gains tax rates are the main reason why many wealthy individuals pay lower tax rates than middle-class families,” he said adding that taxing capital gains at a lower rate than income can do more harm than good. The reduced capital gains rate is the single biggest factor behind individual income tax shelters and there is a whole industry devoted to making the compensation of high-income people into capital gains, he said.

Few issues in tax policy are as divisive as capital gains tax. Should capital gains - the increase in value of assets such as stocks or businesses - be taxed at all? If so, when should they be taxed, when are they earned, or when are they realized? Should taxes be adjusted for inflation? And should gains be taxed at both the individual and corporate levels? The Brooklyn Law School Library copy of The Labyrinth of Capital Gains Tax Policy: A Guide for the Perplexed by Leonard E. Burman (Call # HJ4653.C3 B874 1999) tries to present the facts about capital gains. Explaining the complex rules that govern the taxation of capital gains, it looks at the kinds of assets that produce them, and factors that can lead to gains or losses. It also reviews the effects of capital gains taxation on saving and investment and considers the arguments for and against indexing capital gains taxes for inflation, as well as other options for altering the current system.

A September 2012 report by the Congressional Research Service, Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945, concludes: "The results of the analysis suggest that changes over the past 65 years in the top marginal tax rate and the top capital gains tax rate do not appear correlated with economic growth. The reduction in the top tax rates appears to be uncorrelated with saving, investment, and productivity growth. The top tax rates appear to have little or no relation to the size of the economic pie. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution."

Criminal Defense - Brooklyn

Last week, "Criminal Defense - Brooklyn" debuted on the National Geographic Channel featuring clients and staff of The Legal Aid Society's Brooklyn Criminal Defense Office. It airs again on Tuesday, September 25 at 8:30 PM. The theme of the upcoming show will be about the investigation of a crime scene to help a client charged with gun possession to prove his innocence. Dan Holton-Roth, Brooklyn Law School Class of 2011 and Academy award nominated documentary film maker, developed the show and served as co-producer with Jayson Haedrich. Adam Heyman, a staff attorney in the Society's Brooklyn Criminal Defense Office, appears in the series and was the inspiration for the program. Last year, Heyman spoke at a BLS Public Service Office event designed to introduce students to public defense work and to encourage them to seek out internships in that area of law. His talk was part of a series by the BLS Public Service Office to offer students an opportunity to meet public service practitioners in a small group setting and learn about careers and hot topics in the law.

"Criminal Defense - Brooklyn" takes viewers inside the world of The Legal Aid Society's Criminal Defense Practice and presents a real picture of the criminal justice system and the Legal Aid staff members who provide legal assistance to low-income New Yorkers. Most TV shows on the criminal justice system do so through the lens of the prosecution, but this one shows the defense side of the story. Clients who participated in the series voluntarily signed waivers because they wanted their stories to be told. Only completed cases are used in the show.

On the subject of public interest law, the BLS Library has in its collection Building Your Practice with Pro Bono for Lawyers by Nelson P. Miller (Call #KF336 .M55 2012) which explains 10 pro bono opportunities to broaden, deepen and strengthen a law practice and legal career. An experienced pro bono practitioner, Miller offers practical advice about helping underserved populations such as veterans, prisoners, immigrants, needy children, the homeless, and people with disabilities.

Episode 084 – Conversation with BLS Prof. Dana Brakman Reiser

Episode 084 – Conversation with BLS Prof. Dana Brakman Reiser.mp4

In this podcast, Brooklyn Law School Professor Dana Brakman Reiser discusses her latest scholarly article, Theorizing Forms for Social Enterprise, which addresses the legal and social ramifications of social enterprise. Defining a social enterprise as an organization pursuing social or charitable purposes while also seeking to make profits for investors, Professor Brakman Reiser says that her research shows that social enterprises are forming in the US and abroad. Identifying the goals of social enterprise founders who use hybrid legal forms, Professor Brakman Reiser poses the question “How do you enforce an organization’s mission to do good?” She asks. “Is a dual mission effective and stable?” The article considers a range of possible enforcement mechanisms, some already in use in hybrid legal forms that are now available. She concludes her comments by noting that as jurisdictions enact, and social enterprises adopt, these new legal forms, law students may see them as increasingly attractive as they start their lives as practicing attorneys. The article, scheduled for publication in the Emory Law Journal later this year, is listed along with her other scholarly writing at this link.

War Crimes and the ICC

A recent Jurist article Despite Claims, ICC Prosecution of Bush, Blair Would Be Illegal by Jesse Oppenheim, Brooklyn Law School Class of 2013, questions whether the International Criminal Court (ICC) has to file war crimes charges against former US President George W. Bush and former UK Prime Minister Tony Blair for invading Iraq. The article comes in response to Archbishop Desmond Tutu’s suggestion that the two former leaders "should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague." The ICC hears cases on genocide, crimes against humanity, and war crimes. It was established ten year ago in 2002 when the Rome Statute became a binding treaty with sixty signatories including the United States, the minimum number required to bring it into force. Since then, three states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and have no legal obligations arising from signing the Statute.

Since the establishment of the ICC in 2002, the Court has heard 16 cases with only one having been completed: that of rebel leader Thomas Lubanga from the Democratic Republic of the Congo who was sentenced earlier this year to 14 years in prison for his part in war crimes in his home country. The other cases all involve situations involving African nations. Oxford Reports on International Law has on its web site a module to view a list of the decisions of the ICC. The Brooklyn Law School Library has in its collection The Annotated Digest of the International Criminal Court (Call #KZ6316 .A48) in its International Collection.

Critics have argued that the Court applies “selective justice" to Africa and is "a pro-western, anti-African court." The newly appointed chief prosecutor, Fatou Bensouda, a Gambian national, says the ICC has sought justice for millions of victims in Africa. “Again and again we hear criticisms about our so-called focus on Africa and about the court being an African court, having an African bias. Anti-ICC elements have been working very hard to discredit the court and to lobby for non-support and they are doing this, unfortunately with complete disregard for legal arguments."

The article by Oppenheim, the Notes and Comments Editor of the Brooklyn Journal of International Law, points out the jurisdictional limitations of the ICC. Article 13 of the Rome Statute provides that only State Parties are subject to the ICC. Since the US has not ratified the Rome Statute and it is unlikely that the UN Security Council will refer the case to the ICC, former American officials will remain beyond the jurisdiction of the ICC. The BLS Library also has in its collection Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues by Sarah Williams (Call #KZ7240 .W55 2012). For more on the pros and cons of whether the US should the US and other countries should join the ICC, see this Debatepedia webpage.

Indefinite Detention of Americans

A NY Times article, Judge Rules Against Law on Indefinite Detention, reports on the Order and Opinion in Hedges v. Obama, where US Court Judge Katherine Forrest of the Southern District of New York permanently blocked enforcement of § 1021(b)(2) of the National Defense Authorization Act for 2012. Plaintiffs claimed that the provision could subject them to indefinite military detention for news reporting and political activism. The definitional language in § 1021(b)(1) of the statute defines “covered person” as any person “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” The next definitional, § 1021(b)(2), expands the definition to a “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” The complaint filed in January charged that this section of the law allows for detention of citizens and permanent residents on “suspicion of providing substantial support” to people engaged in hostilities against the US, such as al-Qaeda, and that the phrases “associated forces,” “substantially supported,” and “directly supported” are vague and authorize detention based on speech and associations protected by the First Amendment.

The latest Order makes permanent a May Order for a preliminary injunction after a March hearing where plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified. The Government argument that the Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing, but Judge Forrest ruled for the plaintiffs, writing at page 8 of the latest opinion that “plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.” The Court also addressed the Government’s central challenge to plaintiffs’ standing that their fears of detention cannot be reasonable since § 1021(b)(2) is simply a reaffirmation of the 2001 Authorization for Use of Military Force (AUMF). The judge wrote at page 33 of the opinion “Repeatedly throughout this litigation, the Government has argued that the AUMF is coextensive with § 1021(b)(2). The Court preliminarily rejected that position in its May 16 Opinion, and does so again now.”

At page 101, the opinion says “To the extent that § 1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis. Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States, the President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute 'substantially' or 'directly supporting terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far.”

For further reading on the subject, see The National Defense Authorization Act for FY2012: Detainee Matters in the Brooklyn Law School Library catalog. Content includes Background -- Scope of detention authority conferred by the AUMF -- 2012 NDAA : summary and analysis of detainee provisions. Detention authority --General counterterrorism matters.

Drug Criminalization Crisis

Chief Judge of the US Court of Appeals for the Seventh Circuit Richard A. Posner, to whom Brooklyn Law School awarded an honorary J.D. in 2000, recently called for the elimination of criminal laws against marijuana and other drugs. The lecture at Elmhurst College in Illinois on The Crisis of Capitalist Democracy, available on YouTube, covered a broad range of topics including education, health care, immigration, climate control and criminal justice. In the Q&A following his prepared remarks, Posner said at 54.06 of the video “Personally, I don’t think we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana. I can’t see any difference between that and cigarettes. But also I’m skeptical about the other drug laws….The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs — I don’t think that’s sensible at all. That is responsible for a high percentage of our prisoners. And these punishments are often very, very severe…. It’s all very expensive and it’s a waste of a lot of high quality legal minds, and it’s also a waste of people’s lives who could be as least moderately productive with having to spend year after year in prison. That is a serious problem.”

In Drug Legalization, a post on the Becker-Posner Blog, Judge Posner noted that legalizing marijuana and other drugs would save federal, state and local governments $41.3 billion per year citing a Cato Institute report The Budgetary Impact of Ending Drug Prohibition. Judge Posner is one of the most prolific legal authors in the US. The BLS Library has in its collection more than 50 of his books as seen in this list. On the subject of drug legalization, see in SARA, the BLS Library catalog the March 2012 Congressional Research Service report Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws the summary of which reads:

As part of a larger scheme to regulate drugs and other controlled substances, federal law prohibits the cultivation, distribution, and possession of marijuana. Yet 16 states and the District of Columbia have decriminalized medical marijuana by enacting exceptions to their state drug laws that permit individuals to grow, possess, or use marijuana for medicinal purposes. Although the Supreme Court has established Congress's constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law. Even if the federal government is prohibited from mandating that the states adopt laws supportive of federal policy, the constitutional doctrine of preemption generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void. This report will review the federal government's constitutional authority to enact the federal criminal prohibition on marijuana; highlight certain principles of federalism that prevent the federal government from mandating that states participate in enforcing the federal prohibition; consider unresolved questions relating to the extent to which state authorization and regulation of medical marijuana are preempted by federal law; and assess what obligations, if any, the Department of Justice (DOJ) has to investigate and prosecute violations of the federal prohibition on marijuana.

Sports Law

Inside Counsel, a monthly magazine exclusively serving general counsel and other top in-house legal professionals, recently published an article featuring Jeffrey B. Gewirtz, Brooklyn Law School Class of 1994. Jeff, a national leader in sports law, is now Executive VP & Chief Legal Officer of the Brooklyn Nets, the National Basketball Association (NBA) team that moved this year into its new arena in downtown Brooklyn, the Barclays Center. In 2008, Jeff participated in the Brooklyn Law School Dean’s Roundtable Luncheon program. Earlier this year, the Brooklyn Entertainment and Sports Law Society (BESLS) honored Jeff at its Annual Alumni Awards Dinner.

BLS students interested in researching the subject of sports law can go to the Circulation Desk and check out Sports Law in a Nutshell, 4th by Walter T. Champion, Jr. (Call #KF3989.Z9 C48 2009). Chapters include: Contracts -- Agents -- Financial considerations -- Labor law -- Antitrust -- Torts -- Participant injuries -- Spectator injuries -- School liability -- Coach liability -- Referee liability -- Defamation -- Tort defenses -- Workers' compensation -- Criminal liability -- Amateur sports -- Eligibility -- The disabled athlete -- College scholarships -- International sports -- Discipline and penalties -- Drug testing -- Civil rights -- Sex Discrimination -- Intellectual property.