Redirect Notice for BLS Library Blog and URL

With the launch of the Fall 2013 Semester, the librarians at the Brooklyn Law School Library are pleased to announce that its two blogs, the BLS Library Blog and the Brooklaw Library Weblog, have merged into one combined blog. The newly merged blog will use the name BLS Library Blog. Its new home is http://www.blslibrary.com. To continue reading blog posts by the librarians at the Brooklyn Law School, readers need to update their bookmark to the new URL.

All of the older posts from the two former sites, along with reader comments and resources remain available at the new site. We look forward to seeing you again at http://www.blslibrary.com.

The blog, Government Information, which Brooklyn Law School Library Government Documents Librarian Rosemary Campagna writes is about Politics, Legislation and Documents in the News. It retains its own URL http://governmentinfo.wordpress.com/.

Zoning Symposium on Land Use

Brooklyn Law School Professor Gregg Macey and former BLS Professor Christopher Serkin (now at Vanderbilt Law School) recently posted Symposium Introduction: Post-Zoning: Alternative Forms of Public Land Use Controls on SSRN.   The full text of the introduction appears at 78 Brooklyn Law Review 305 (2013). The abstract reads:

Brooklyn Law School’s 2012 David G. Trager "Public Policy Symposium, Post-Zoning: Alternative Forms of Public Land Use Controls", called for a critical new appraisal of modern land use regulation. In this Introduction, we describe the topic and introduce the outstanding papers produced for the Issue. Over the years, zoning has widened its reach and flexibility through innovations such as overlay districts and planned unit developments. But these regulatory tweaks continue to take the separation of incompatible uses of land as their point of departure. In this Introduction, we sketch zoning’s origins and suggest why its traditional goals may no longer be tenable. New challenges, from finer-grained externalities within communities to sea-level rise, demand that zoning respond to change at both broader and narrower scales. The impressive set of papers collected in the Symposium address, in varied and creative ways, zoning’s ability to adapt to new pressures on land use from the sublocal to the global. Included in this volume are papers by Vicki Been, Alejandro Camacho, Richard Epstein, Lee Fennell, William Fischel, Nicole Garnett, Rachel Godsil, Gerald Korngold, John Nolon, and Stewart Sterk.

History of the Voting Rights Act

The Brooklyn Law School Library has several items in its collection related to the Voting Rights Act. The latest is Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy by Gary May (Call #KF4893.M39 2013). This fast-paced history of the VRA offers a dramatic, timely account of the struggle that finally won African Americans the ballot—although, as May shows, the fight for voting rights is by no means over.

When the Fifteenth Amendment of 1870 granted African Americans the right to vote, it seemed as if a new era of political equality was at hand. Before long, however, white segregationists across the South counterattacked, driving their black countrymen from the polls through a combination of sheer terror and insidious devices such as complex literacy tests and expensive poll taxes. Most African Americans would remain voiceless for nearly a century more, citizens in name only until the passage of the 1965 Voting Rights Act secured their access to the ballot.

The author describes how black voters overcame centuries of bigotry to secure and preserve one of their most important rights as American citizens. The struggle that culminated in the passage of the Voting Rights Act was long and torturous, and only succeeded because of the courageous work of local freedom fighters and national civil rights leaders—as well as, ironically, the opposition of Southern segregationists and law enforcement officials, who won public sympathy for the voting rights movement by brutally attacking peaceful demonstrators.

Many argue that the 2008 election of President Barack Obama rendered the act obsolete, and there have been renewed efforts to curb voting rights and deny minorities the act’s hard-won protections. The Supreme Court's recent decision in Shelby County v. Holder declared the protections in Section 4 of the VRA unconstitutional. Recent actions by the Department of Justice make clear that Section 2 and other sections of the VRA remain in play as methods to promote the goal of increasing voting rights. See the Jurist article for more on this issue.

Casetext: Open Access to Legal Texts

An interesting new case law research tool that Brooklyn Law Students can use to gain a better understanding of case law research is Casetext. It is a free, searchable legal database that readers can annotate. The beta version just opened to the public, and the site is building a community of annotators so that lawyers reading a case see related legal documents, articles, and commentary alongside the text.

The database currently contains the bulk of federal cases (all Supreme Court, circuit courts from 1 Federal Reporter 2d, and district courts from 1980); it also has Delaware cases in the Atlantic Reporter from 30 Atlantic Reporter. Co-founders Jacob Heller (former president of the Stanford Law Review) and Joanna Huey (former president of the Harvard Law Review) decided to build Casetext for their own research.

This site is building a community of annotators so that lawyers reading a case can see related legal documents, articles, and commentary alongside the text. Instead of selling access to documents, the site will support itself by offering additional tools that enhance search and save time. It will benefit from user feedback as well as their annotations.

See the instructional video below for more on how to use the database:

Alumni Named Rising Legal Stars

Recent Brooklyn Law School graduates have won praise from the legal community for their accomplishments. Earlier this year, Jeffrey Schulman, Class of 2000, a partner at Dickstein Shapiro LLP, was selected by the New York Law Journal as a Rising Star of 2013 for his work representing corporate and commercial policyholders. Four more alumni have been recognized for distinguished service and leadership.

Michael Asaro, Class of 1998, was named to Law360’s 2013 list of Rising Stars Under 40 in the Securities Bar. Asaro is a partner in the New York office of Akin Gump Strauss Hauer & Feld LLP, focusing on U.S. Securities and Exchange Commission investigations, white-collar criminal defense, corporate internal investigations, and commercial litigation. As a former federal prosecutor and enforcement attorney at the Securities and Exchange Commission, he used his decade of experience as a government lawyer to help hedge-fund industry giants navigate high-stakes litigation. He has also been recognized as a leading lawyer by Chambers USA, New York Super Lawyers, and BNA’s Securities Regulation & Law Report. J

Joshua Bernstein, Class of 2001, is a partner at Pryor Cashman LLP and a member of the firm’s Real Estate Litigation and Hospitality Litigation Groups. Bernstein was also recognized by Law360 as a 2013 Rising Star in the Real Estate category. Several of Bernstein’s most high-profile cases have secured multimillion-dollar judgments for developers fighting against global hoteliers, including Starwood Hotels & Resorts and Mandarin Oriental Hotel & Residence. Described by Pryor Cashman as “an unstoppable force in the courtroom,” he advises clients in disputes ranging from the acquisition and development of real property to the operation and management of hotels. Bernstein has also written two articles on hospitality litigation for the New York Law Journal.

Angela L. Baglanzis, Class of 2002, an associate in the Philadelphia office of Obermayer Rebmann Maxwell & Hippel LLP, was selected as a 2013 Pennsylvania Rising Star in bankruptcy law. Featured in Philadelphia and Pennsylvania Super Lawyers magazines, Rising Stars are chosen by their peers and through the independent research of Thomson Reuters. In her practice, Baglanzis serves businesses in need of restructuring, reorganization, and liquidation. Her clients represent a variety of industries, including retail, bars and restaurants, construction, and real estate. Complementing her focus on bankruptcy and real estate, Baglanzis is a volunteer lawyer for the Homeless Advocacy Center, helping the homeless community find housing and employment.

Cassandra M. Porter, Class of 2004, is counsel to Lowenstein Sandler LLP in the firm’s Bankruptcy, Financial Reorganization & Creditor’s Rights Group. Her practice focuses exclusively on bankruptcy, restructuring, debtor-creditor law, and bankruptcy litigation. Porter’s successful representation of major clients such as U.S. Eagle Corp and its affiliates, Meridian Behavioral Health LLC, and RoomStore, Inc., led to her inclusion on the New Jersey Super Lawyers 2013 list of Rising Stars. She is also the secretary and member of the board of directors of The Financial Clinic, a leading nonprofit dedicated to helping the working poor build financial security.

The Beauty of Citizens United

Professor Joel Gora recently posted on SSRN his latest article Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?. The full text of the article appears at 56 Howard Law Journal 763 and is available here. The abstract reads:

A prominent politician once observed that, "You can either have free speech or fair elections, but you can’t have both." In the view of this article, that has it precisely backwards. In fact, you cannot have one without the other. The election of 2012 tested that thesis because it was the most expensive federal election in history and it contained what many claimed was a great deal of negative campaign speech and rhetoric. This paper argues that, under the First Amendment, election speech is supposed to be "uninhibited, robust and wide-open" and unrestrained in both quantity and content. Accordingly, the increase in campaign spending and activity by candidates, parties, non-profits organizations, labor unions, corporations and so-called "super pacs" is a good thing for free speech principles and democracy, not a bad thing, and efforts to impose greater limitations on campaign funding should be opposed. The same is also true for the supposed increase in the "negative" nature of the content of much campaign speech. There too a proper view of the First Amendment would applaud and encourage such robust debate about core issues of governance. The article concludes by advocating a number of reforms which will make our electoral speech even more vigorous than it is now.

Municipal Bankruptcy

The City of Detroit's filing for Chapter 9 bankruptcy protection, the largest municipal bankruptcy filing in U.S. history, and the breaking news that Michigan Circuit Court Judge Rosemarie E. Aquilina has issued an Order directing Governor Rick Snyder to withdraw the petition because the filing violated the state’s constitution, raises serious issues for financially stressed local governments. For more on this development, see the NY Times article.The potential for the Detroit bankruptcy as a test case for municipalities restructuring retirement benefits in bankruptcy court is significant.  


On the subject of municipal bankruptcy, the Brooklyn Law School Library has in its collection When States Go Broke: The Origins, Context, and Solutions for the American States in Fiscal Crisis by Peter Conti-Brown and David Skeel (Call #KF1535.S73 W48 2012). Chapter 3 is entitled Public Pension Pressures in the United States. The book collects insights and analysis from leading academics and practitioners that discuss the ongoing fiscal crisis among the American states. No one disagrees with the idea that the states face enormous political and fiscal challenges. There is, however, little consensus on how to fix the perennial problems associated with these challenges. The book fills an important gap in the dialogue by offering an academic analysis of the many issues broached by these debates. Leading scholars in bankruptcy, constitutional law, labor law, history, political science, and economics have individually contributed their assessments of the origins, context, and potential solutions for the states in crisis. It presents readers - academics, policy makers, and concerned citizens alike - with the resources to begin and continue that important, solution-oriented conversation., the largest municipal bankruptcy filing in U.S. history,

Company Investigator

Brooklyn Law School students now have a new tool they can use to conduct due diligence on M&A targets, to advise clients regarding competition, and to evaluate potential buyers to ensure financial solidity. In a recent press release, Thomson Reuters announced the launch of Company Investigator, a comprehensive resource for information on private and public companies. Users can find information on companies to assist with business development, litigation, due diligence and a host of other applications.

Company Investigator accesses more than 30 million company profiles — of which 20 million are hard-to-find private companies — including general corporate information, subsidiary data, legal disputes, secretary of state filings, regulatory filings, and material agreements. Users can search by company name or other terms to locate a search subject.

Company Investigator is available on WestlawNext and presents information in a manner that makes it easy to analyze corporate “family tree” structures, relationships among corporate entities, and other company-related information, such as recently filed court dockets, bankruptcy filings and more.

Users can easily create customizable reports that assemble all of the relevant business and legal information. Email alerts can be set up to provide notification of new business developments or changes to a business’s status. With its comprehensive data as well as powerful search and information management tools, Company Investigator saves hours of research time and helps effectively manage risk.

“Legal industry professionals depend on relevant, accurate and current company information,” said Steve Obenski, senior director and general manager, Business Law Solutions, Thomson Reuters. “Company Investigator is remarkably easy to use while at the same time incredibly powerful. It makes it fast and easy to understand corporate structures, relationships and other information about business entities. This is a must-have tool that is invaluable for transactional lawyers, litigators and legal researchers alike.”

A podcast on how Company Investigator can help find information on public and private companies is available here.

Traditional Irish Laws

Congratulations to Brooklyn Law School alumna Catherine F. Duggan, Class of 1987, who has written The Lost Laws of Ireland: How the Brehon Laws Shaped Early Irish Society. The book, published by Dublin-based Glasnevin Publishing on June 11, 2013, tells how the ancient laws of Celtic Ireland were used from the time before Patrick until the 17th century when they were outlawed and disappeared. Crafted by judges, known as Brehons, the laws were surprisingly modern in their approach to timeless issues and reflect a complex and sophisticated society. This book gives an outline of the main features of the laws and their history, and ultimately focuses on certain themes that are significant to the modern reader, such as equity and fairness, transparent legal process and women's rights. Many of the legal manuscripts have been lost or destroyed and the laws were not translated into English until modern times. As a result, they have mostly remained obscure and unstudied. Only recently have they given up their secrets. The ancient laws provide a window into society in early Ireland where learning was revered, social mobility was expected and fairness and harmony were social goals. Their resilience demonstrates their value and effectiveness. The Brehon legal system came to an end officially in 1605 after enduring for over a thousand years.

Researchers at the BLS Library can learn more about the subject of Celtic Law using SARA to locate Traditional Irish Laws by Mary Dowling Daley and illustrated by Ian McCullough (Call #KDK172 .D25 1998). It is a short book only 79 pages in length with a humorous look into the laws and culture of the ancient Irish. The BLS Library also has the print edition of The Brehon Laws: A Legal Handbook by Laurence Ginnell (Call #KDK145 .G56 1993). Both of these items are located in the BLS Library International Collection. The BLS Library also has the HeinOnline digital version of Brehon Laws: A Legal Handbook (1894).

Writing Competiton Winner on SSRN

Dominic A. Saglibene, Brooklyn Law School Class of 2014, has posted his note “The U.K. Bribery Act: A Benchmark for Anticorruption Reform in the U.S.” on SSRN.  The note is scheduled for publication next year in Volume 24 of the Transnational Law & Contemporary Problems, a journal of the University of Iowa College Of Law. Saglibene won the Trandafir Writing Competition for the note. For more, see the news item at the Brooklyn Law School website. The abstract reads:
 
This Note will argue that the U.S. should look to the U.K. Bribery Act in amending the Foreign Corrupt Practices Act ("FCPA") to criminalize foreign bribery across the board. Part I will introduce the thesis. Part II will explain the relationship between public and private bribery, and outline how some nations have come to recognize that overlooking private bribery undermines anticorruption laws and policies in general. Part III will describe the FCPA and other anti-bribery laws in the U.S., and present the U.K. Act as an improvement on the FCPA. Part IV will then discuss U.S. prosecutions - especially U.S. v. Carson - demonstrating the inadequacy of American law against bribery in the foreign private sector. Part V will conclude.

Happy Independence Day

Brooklyn Law Library’s copy of the book For Liberty and Equality: The Life and Times of the Declaration of Independence (Call # E221 .T74 2012) by Loyola University Chicago School of Law Professor Alexander Tsesis offers a well-researched narrative of the many surprising ways in which the Declaration of Independence has influenced American politics, law, and society. The drafting of the Bill of Rights, the Reconstruction Amendments, the New Deal, and the Civil Rights movement are all heavily indebted to the Declaration's principles of representative government. The author demonstrates that from the founding on, the Declaration has played a central role in American political and social advocacy, congressional debates, and presidential decisions. He focuses on how successive generations internalized, adapted, and interpreted its meaning, but he also shines a light on the many American failures to live up to the ideals enshrined in the document. Based on extensive research from primary sources such as newspapers, diaries, letters, transcripts of speeches, and congressional records, For Liberty and Equality shows how our founding document shaped America through successive eras and why its influence has always been crucial to the nation and our way of life.

Chapters include: Becoming independent -- The nation's infancy -- Youthful republic -- Compromising for the sake of expansion -- Jacksonian era democracy -- Subordination -- The unraveling bonds of union -- Sectional cataclysm -- Reconstruction -- Racial tensions -- Advancing women's causes -- The changing face of labor -- International impact & domestic advance -- The declaration in a New Deal state -- Independence principles in the civil rights era.

Free Apps for US Legal Publications

Law Technology News (LTN) magazine and website reports that ALM, the leading provider of specialized business news and information focused on the legal sector, has launched 14 smartphone apps for use on Apple Inc.'s iPhones, iPods, and iPads. The apps provide content from the company's national and regional web and print publications, and support iOS 6.1 and above. The available publications are:

The American Lawyer
Corporate Counsel
Law Technology News
The National Law Journal
Connecticut Law Tribune
Daily Business Review
Daily Report Online
Delaware Business Court Insider
Delaware Law Weekly
New Jersey Law Journal
New York Law Journal
Texas Lawyer
The Legal Intelligencer
The Recorder

An ALM press release stated: The apps offer a superior and faster reading experience than what is possible through a smartphone or tablet Web browser. They also provide offline reading capability so users can view news stories and other articles even when they are not connected to the Web. . . The apps are being sponsored by leading financial and legal institutions who are providing end-users free complimentary access to the content during the launch sponsorship.

Content that might otherwise be behind a paywall is now available thanks to the sponsor. In fact, if you look at the NYLJ front page using the iPhone’s Safari browser, several of these stories are locked. If you look at the same stories using the app, they are unlocked. Brooklyn Law School students can now regularly follow any of these ALM publications.

Prison Law Libraries

With New York State’s recent adoption of a rule on Inmate Access to Legal Reference Materials, the article Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries, 101 Geo. L.J. 1171, is timely reading. See Westlaw or LexisNexis for digital access or check the Brooklyn Law School Library Circulation Desk for the print version.

The abstract reads in part:

The prison law library has long been a potent symbol of the inmate's right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. .  . This Article uses original historical research to show how prison law libraries arose, not as a means of accessing the courts, but rather as a means of controlling inmates' behavior. . . This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts.

Unpaid Intern Lawsuits

Unpaid internships suffered a setback this month when US District Court Judge William H. Pauley III ruled in Glatt v. Fox Searchlight Pictures that the defendant violated minimum wage and overtime laws when it failed to pay interns who worked on the movie Black Swan. The lead plaintiff is a Georgetown University law school student. The decision, the first to adopt this argument, rigorously applied the Department of Labor six-part test where internships in the for-profit private sector are viewed as employment relationships for which the federal minimum wage and overtime rules will apply, unless the intern is truly receiving training. The six criteria are:

(1) The internship is similar to training that would be given in an educational environment;
(2) The internship experience is for the benefit of the intern;
(3) The intern is not replacing employees and works under close supervision;
(4) The sponsor of the intern does not derive immediate benefit from intern's activities and at times, its operations may actually be impeded;
(5) The intern is not entitled to a job at the conclusion of the internship;
(6) The sponsor and the intern understand the intern is not entitled to wages for the time spent in the internship.

While not every factor weighed strongly in favor of finding the plaintiffs entitled to pay, Judge William H. Pauley III concluded that the plaintiffs “were classified improperly as unpaid interns and are ‘employees’ covered by the FLSA,” and that “[t]he benefits they may have received—such as knowledge of how a production or accounting office functions or references for future jobs—are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer.”

For more on the decision, see the Bloomberg BNA article Judge Rules Fox Searchlight Interns Are FLSA Employees, Certifies Class Action which concludes by noting that “In the past few years, unpaid interns of for-profit, private sector employers have brought several wage and hour suits in New York courts. The district court's ruling here is the first to find that such interns are employees under the FLSA.” The article cites to another case from the Southern District of New York, Wang v. The Hearst Corporation, where Judge Harold Baer ruled differently in denying partial summary judgment on the employee issue and finding various factual disputes concerning DOL's unpaid intern criteria.

Another class action, Bickerton v. Rose, which a former intern filed in New York Supreme Court last year, alleged that she regularly worked at least 25 hours per week without pay as an intern for The Charlie Rose show. The case ended when Rose and his production company agreed to pay up to $250,000 as a settlement without admitting any wrongdoing.

New Books List

Among the 71 titles in Brooklyn Law School Library latest New Books List is a must read for today’s law students. Richard Susskind’s newest volume on the legal profession, Tomorrow's Lawyers: An Introduction to Your Future (Call #K120 .S87 2013), predicts major changes coming in the world of law with the emergence of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice.

Susskind, author of an earlier book also in the BLS Library collection, The End of Lawyers?: Rethinking the Nature of Legal Services (Call # K87 .S865 2010), foresees the liberalization of legal markets, with new jobs for lawyers and new employers. The book is a definitive guide to this future for aspiring lawyers, and for all who want to modernize the legal and justice system. It offers practical guidance for those who intend to build careers and businesses in law and identifies the key drivers of change, such as the economic downturn, considering how these will shape the legal marketplace. The book sketches out the new legal landscape as Susskind envisions it, highlighting the changing role of law firms and in-house lawyers and the coming of virtual hearings and online dispute resolution. He also suggests solutions to major concerns within the legal profession, such as diminishing public funding, and explores alternative roles for future lawyers in a world increasingly dominated by IT.

Episode 087 – Conversation with Mark Walsh, Class of 2015

Episode 087 – Conversation with Mark Walsh, Class of 2015.mp3

In this podcast, Mark Walsh, Class of 2015 and newly-elected Brooklyn Law School Student Bar Association President, talks about his previous year with the SBA and the upcoming year as SBA President. Mark discusses his plans for next year for the SBA to work with the administration and other departments within the Law School, particularly the Information Technology Department, to better serve the student body. He also looks forward to working with BLS Library Director Janet Sinder.

CALI Conference 2013

This past weekend, the 23rd Annual CALI Conference for Law School Computing was held at IIT Chicago-Kent College of Law. The conference featured several sessions on the flipped classroom:

• Flipping the Classroom in Legal Skills Courses
• Flipping the Law School Classroom: Using Technology Outside the Classroom to Engage Students in the Classroom
• Flipping Flop?: exploring whether guest lectures can use the flipped classroom format

There were also sessions on changing how law is taught:

• H2O – Create Free Adaptable Digital Casebooks
• Games Theory: Engaging Students Through Games in the Classroom
• How do you deliver?… An example of how technology has changed the face of meetings and collaboration.
• How to Create a Distance Education Course

For those who were unable to attend, the sessions were recorded and are available (along with videos of past conferences) on the CALI YouTube channel. See the complete agenda here which gives a full description of the session along with the YouTube recording along with the presenter slides if available. Selected sessions including the two keynote addresses are listed below:

• Keynote Josh Clark - The Seven Deadly Myths of Mobile
• Lecture Capture has a new name
• Engaging Faculty in the Use of Technology Without Using the “T” Word
• Up in the clouds
• Legal education, technology & law practice
• Keynote William Henderson
• How to Steer with 20 Hands on the Wheel: Tech Tools That Guide and Stimulate Collaboration

Copyright and the Public Domain on Trial

A recent article in the New York Law Journal reports on a class action complaint, Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., filed in the Southern District of New York where ownership of the well-known song "Happy Birthday to You" is under dispute. The plaintiff company, which is producing a documentary about the song that dates back to before 1893, is seeking a declaration that the tune is in the public domain and not subject to copyright protection. During production, the plaintiff company learned that the defendant claimed exclusive copyright ownership of the song. The defendant charged a license fee of $1,500 to use the song which the plaintiff paid. The defendant is alleged to have threatened legal action against the plaintiff seeking penalties of $150,000 under the Copyright Act if it used the song without permission.

This prompted the lawsuit which argues that the defendant "either has silenced those wishing to record or perform 'Happy Birthday to You' or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims." In addition to seeking a declaration that the song is in the public domain, the complaint asks for the return of the $1,500 licennse fee that it paid plus millions of dollars collected over the years for what it calls "the world's most popular song."

The past year has seen other complaints looking to declare famous works as being in the public domain.  See Klinger v. Conan Doyle Estate, Ltd about the stories of Sherlock Holmes filed in the Northern District of Illinois and Cabell v. Zorro Productions, Inc. about the stories of Zorro filed in the Western District of Washington. For more on the subject of public domain and copyright law, see the Brooklyn Law School Library copy of The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More by Stephen Fishman. The guide explains the law and identifies problems and gray areas. It also covers trademark and patent law as they might conflict with copyright.

112th BLS Commencement at Lincoln Center

Brooklyn Law School held its 112th Commencement Ceremony on Friday, June 7 at Lincoln Center’s Avery Fisher Hall. With more than 450 law students receiving either a Juris Doctor or a LL.M degree, the Class of 2013 was one of the school’s largest graduating classes before enrollment began declining after the worst economic downturn since the Great Depression. Joseph Binder, Class Valedictorian and one of five students graduating summa cum laude, made reference to ongoing doubt about the future of the profession in his comments but also noted that his fellow students, from all different backgrounds, shared a common commitment to growth, change, and community and could use the values and skills that they developed and apply them to whatever challenges lie ahead. Other summa cum laude graduates were Joshua Gerber, Kate Olivieri, David Passes, and Noam Weiss. The complete list of students graduating with honors is accessible here. A list of Commencement Prizes and Awards for the Class of 2013 is available here.

The 2013 Commencement Speaker, Kenneth Feinberg, the lead attorney who oversaw settlement payouts after disasters including the attacks of 9/11, the Virginia Tech shootings, and the Aurora, Colorado movie theater shootings, reminded the graduates that they are all members of a noble profession and that the “public interest” lies at the heart of it. He cited the Law School’s nationally acclaimed Sparer Public Interest Law Fellowship Program as an example of law students working in the public interest. Advising the graduates not to be afraid to avoid the safe path, the easy road, the comfortable option, Feinberg urged them to take chances, reinforced by the knowledge that they are entitled and expected to do so because of the diplomas that they earned. He said “I use my law degree every day to strike out in new directions, to pursue the unfamiliar road. Today, your law degree affords you the same opportunity, to ignore fear of failure, to be bold, to be pioneers and innovators in using the law to better our nation and the world.”

In closing, Feinberg quoted Supreme Court Justice Oliver Wendell Holmes’ remarks in 1886 to undergraduate law students at Harvard:

To those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say – and I say no longer with any doubt – that a man or woman may live greatly in the law as well as elsewhere; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. 

The full text of Holmes lecture is at this link available through the BLS Library subscription to HeinOnline.

Overcriminalization

A recent New York Law Journal article, Overcriminalization of Non-Violent Conduct: Time for Real Reform by attorneys Robert J. Anello and Richard F. Albert, examines the proliferation of federal criminal laws and the resulting increase in the federal prison population, approximately 40% above capacity, costing taxpayers almost $7 billion a year, almost 30% of the Justice Department's budget. The article cites Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which is available in the SARA, the Brooklyn Law School catalog. With Congress adding an average of 500 new crimes to the books in each of the past three decades and the addition of  tens of thousands of regulations with criminal penalties, many without traditional mens rea or criminal intent, critics contend that these newly created crimes violate fundamental principles of fair notice, and subjects individuals to criminal punishment for conduct that they do not know is illegal.

The article points to a number of proposed remedies including legislative reform and judicial reform. See the Justice Safety Valve Act of 2013 and United States v. Goyal, 629 F.3d 912 (9th Cir. 2010) where the U.S. Court of Appeals for the Ninth Circuit reversed a corporate CFO's fraud conviction finding that no reasonable jury could have found the defendant guilty beyond a reasonable doubt.

For more on the subject, see the BLS Library copy of Overcriminalization: The Limits of the Criminal Law (Call #KF9223 .H87 2008) by Douglas Husak who argues that the U.S suffers from too much criminal law and too much punishment. The author notes that most Anglo-American legal philosophers have neglected the topic and argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself, even though these resources have not been used explicitly for this purpose.

Eminent Domain, Just and Unjust Compensation

Brooklyn Law School Assistant Professor of Law Brian Lee has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain on SSRN. The full text of the article appears at 113 Columbia Law Review 593 (2013). The abstract reads:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Authorship Attribution

Brooklyn Law School Professor Lawrence Solan has posted Intuition versus Algorithm: The Case of Forensic Authorship Attribution on SSRN. The article, which will appear in an upcoming edition of the Brooklyn Journal of Law and Policy, originated in the Authorship Attribution Workshop held last October at Brooklyn Law School. The program for the workshop stated "It is not unusual for a legal case to depend on who wrote a particular document. The question has arisen in many high-profile cases, such as identifying the author of the Unabomber Manifesto, and the ransom notes in the JonBenét Ramsey murder case and the Lindburgh baby kidnapping and murder case. It arises in many less-celebrated criminal and civil cases on a regular basis."

The abstract for the article, the full text of which is not yet posted, reads:

This article addresses a nagging issue in the field of scientific evidence: What should the legal system do when experts developing a statistical approach to forensic identification are making good progress, but are not provably more accurate than experts who make judgments, often convincing judgments, based upon the their analysis of the specific facts of each case? That is the state of affairs in the field of authorship attribution: Computer scientists and computational linguists develop and test their models while a group of forensic linguists continues to testify in cases without mathematical checks on their conclusions. The legal system rightly prefers algorithmic expertise over intuitive expertise, but when it is not clear that the algorithms do a better job, the question becomes more difficult. The article discusses the psychological literature on the question of algorithm versus intuition and applies it to authorship attribution. It concludes that the insights of the intuitive experts, sometimes called practitioners of forensic stylistics, may have a great deal to contribute to the models created by the computational experts; that practitioners of stylistic comparison have an obligation to conduct far more research into the accuracy of their methods, including, in the short-run, proficiency testing; and that a healthy combination of cooperation and competition is gradually leading to improvements in the field and convergence around those methods that prove successful.

Class Action Fairness Act

In Abraham v. American Home Mortgage Servicing, Inc., Brooklyn Federal Judge William F. Kuntz II of the Eastern District of New York ruled against several hundred current and former homeowners rejecting their mass action attempt, finding that they were joined improperly. The defendants were several dozen mortgage originators and servicers including MERSCORP Holdings Inc. Plaintiffs alleged that the defendants induced them to enter into mortgages based on inflated appraisals; purposefully avoided local recordation statutes, thereby clouding the plaintiffs’ titles; transferred, bundled, packaged and sold their mortgages to investors simultaneously betting against those mortgages; and failed to use Troubled Asset Relief Program, or TARP, funds to help the plaintiffs, as required under law. The suit originated in New York Supreme Court, Kings County, in May 2012 but one of the defendants had the case removed to the federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(A)

Judge Kuntz rejected the mass action attempt by the plaintiffs, finding that they were joined improperly. A “mass action” is defined as any civil action in which monetary relief claims of 100 or more persons are proposed to be tried together on the grounds that the plaintiffs’ claims involve common question of law or fact. “According to the allegations in the complaint, Plaintiffs engaged in separate loan transactions with different lenders in different offices in different states over a nine-year period. It is well established that separate loan transactions by different lenders do not constitute a single transaction or occurrence and claims by plaintiffs who engaged in those separate transactions generally cannot be joined in a single action,” Kuntz wrote. “Indeed, even claims by plaintiffs who engaged in separate loan transactions by the same lender cannot be joined in a single action.

Judge Kuntz also ruled that the plaintiffs failed to plead “sufficient factual matter” to state a claim to relief that is “plausible on its face.” “Plaintiffs appear to argue that their claims arise out of a common series of transactions because ‘Defendants were involved in a common scheme and plan,’” Kuntz wrote. “Plaintiffs have not provided any factual allegations supporting these contentions, such as evidence that Plaintiffs’ individual mortgages were based on inflated appraisals or specific omissions by particular employees responsible for issuing Plaintiffs’ mortgages.

See Brooklyn Law School Library's copy of A Practitioner's Guide to Class Actions by Marcy Greer ( Call #KF8896.P735.2010) for more on the subject of class actions. This comprehensive guide provides practitioners with an understanding of the intracacies of the class action lawsuit.

Plea Bargaining and Ethics

LLRX, the "go-to" website for researchers seeking to leverage the expanding expertise and knowledge of legal resources, has published in its May 2013 edition an article titled Negotiating Justice: The New Constitutional Spectrum of Plea Bargaining by Ken Strutin. The article focuses on the impact of the Supreme Court's decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012) and Laflerv. Cooper, 132 S.Ct. 1376 (2012), and the upcoming appeal in Burt v. Titlow. The cases have divided practitioners and scholars into two camps: (1) those who consider the rulings to be a new statement in the law of plea bargaining and right to effective assistance of counsel; and (2) those who believe they are only a restatement of established principles. The cases have generated interest in the regulation of plea bargaining, the ethics and effectiveness of defense counsel as negotiator, the oversight of prosecutors regarding charging decisions, sentence recommendations and pre-trial discovery, and the scope of federal habeas corpus review and remedies.

Users of the Brooklyn Law School Library who want to research the subject of plea bargaining have access to The Ethics of Plea Bargaining by Richard L. Lippke (Call # K5458 .L57 2011). The book offers a full-length philosophical analysis of the ethics of plea bargaining and develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States. It offers an ethical argument for restrained forms of plea bargaining and provides a comparison between the different plea bargaining regimes that exist within the US, where it is well-established, England and Wales, where the practice is coming under considerable critique, and the European Union, where debate continues on whether it coheres with inquisitorial legal regimes. Addressing concerns about rewards for admitting guilt, penalties for exercising the right to trial, and the deliberate over-charging by prosecutors and charge bargaining, the author argues that the negotiation of charges and sentences should remain the exception, not the rule.

Bankruptcy and Student Loans

Student loan obligations are presumptively non-dischargeable in bankruptcy absent a showing of “undue hardship.” 11 U.S.C. § 523(a)(8). A recent decision by the Ninth Circuit Court of Appeals may offer financially stressed student loan debtors a way out of their student loans. In Hedland v. Educational Resources Institute, Inc., the court ruled that a bankrupt law school graduate who accumulated $85,000 in student debt (with monthly payments of more than $800) was not obligated to repay the loans because he could not find a job with enought income to make the payments. After filing bankruptcy, the debtor commenced an adversarial proceeding seeking a partial discharge of his student loans. At trial, the Bankruptcy Court determined that the debtor satisfied the three-prong test for "undue hardship" and granted a partial discharge of all but a portion of his student loans. The District Court reversed and reinstated the entirety of the student loans. The Ninth Circuit held that the Bankruptcy Court's findings under §523(a)(8) were not clearly erroneous and reversed the District Court's order.

The Court of Appeals used the three-pronged test laid out in Brunner v. New York State Higher Educ. Services, 831 F. 2d 395 (2d Cir. 1987):  (i) the debtor could not have maintained a minimal standard of living, if required to repay the full loans, (ii) circumstances indicated that the debtor's inability to repay his loans would persist into the future, and (iii) the debtor made a good faith effort to repay his loans. The Court found that the Bankruptcy Court had not made any errors, had examined the evidence, had used the Brunner test, and that the reversal by the District Court was wrong. The Court then remanded the case back to the District Court to reinstate the discharge which the Bankruptcy Court ordered.

For more on the topic, see the Brooklyn Law School Library copy of Discharging Student Loans in Bankruptcy by David J. Light (Call # KF1530.D4 L54 2009). Contents include Legislative history of student loan dischargeability; Discharging student loans under Chapter 7; Discharging student loans under Chapter 13.

Great Irish Famine: Crime Against Humanity?

New York City’s Irish Hunger Memorial offers an informative look at the Irish Hunger of 1845-50, perhaps the worst social disaster of 19th Century Europe. Located near the World Financial Center in lower Manhattan, the half-acre site consists of a rural Irish landscape with an abandoned stone cottage, stone walls, fallow potato fields and the flora on the north Connacht wetlands. It is a metaphor for the Great Irish Famine and a reminder that hunger today is often the result of lack of access to land. Artist Brian Tolle designed the 96' x 170' Memorial, which contains stones from each of Ireland's 32 counties. Along the base are bands of texts separated by layers of imported Kilkenny limestone. The text, which combines the history of the Great Famine with current reports on world hunger, is cast as shadow onto illuminated frosted glass panels.

A recent trip to Ireland, especially the counties in the west (County Galway, County Clare, and County Kerry), districts designated the Gaeltacht where the Irish government recognizes Irish as the predominant language spoken at home, made clear the extent of the Irish Hunger. An historic site on the Dingle Peninsula had the ruins of a famine house that gave an historical overview of the Land War in Ireland when English landowners evicted millions of Irish who could not pay rent in the wake of the great famine. The site describes the ruthless tactics that the British used to evict Irish peasants. Ironically, some evicted Irishmen immigrated to America, joined the US Army, and used the same methods to displace Native Americans during the Western expansion, not seeing any connection between the plight of the Irish and that of the Indians.

The Great Famine had its roots in both the dependence of Irish peasants solely on a potato diet as well as the adverse relief policies of the British Government. Irish patriot John Mitchell summed up the tragedy saying “God created the potato blight but Britain created the famine.” The fungus that ruined the potato crop actually came from America by ship; it infected much of Western Europe, but Ireland was affected the most. The earlier 17th Century purges in Ireland under the rule of Oliver Cromwell and the later Penal Laws insured that the Irish peasant could own no land, paid exorbitant rents and subsisted exclusively on potatoes. Interestingly, food was exported from Ireland during the Great Famine, in the form of livestock, grains, fruits and vegetables. The term Famine is arguably a misnomer. An estimated 1 million died of starvation-related conditions in one of the most catastophic food crises in history. For many, migration was an escape from death. Approximately 20% of emigrants died at sea, in coffin ships, and in quarantine stations. The Irish exodus to America was the first large wave of European immigration

The Brooklyn Law School Library’s electronic collection has material related to this period. See the Making of Modern Law’s The Irish Land Acts, 1903 to 1909: Together with the Rules and Forms Issued Thereunder, Tables of Purchase Annuities, and a Form of Final Schedule of Incumbrances: Being a Supplement to Lord Justice Cherry's Irish Land Law and Land Purchase Acts, 1860 To 1901. This topic from so long ago has gained some currency with the convening of the Irish Famine Tribunal in late April at Fordham University Law School. Organizers of the mock tribunal set it up as an experiment for lawyers and experts to “examine the responsibility of the British Government, under international law, for the tragic consequences of this period.” After extensive testimony, the panel consisting of New York State Supreme Court John Ingraham from Brooklyn and Irish Supreme Court Justice Adrian Hardiman reserved judgment on the case for 60 days until approximately June 20, 2013.

New Books List

The latest edition the Brooklyn Law School Library New Books List has 68 items that cover a broad range of legal topics. All of the titles provide users of the BLS Library with content that can help their research needs on a wide number of subjects. These items on the list deal, to select just a few, deal with themes that are newsworthy and perhaps controversial: Capital Punishment's Collateral Damage by Robert M. Bohm (Call #HV8699.U5 B64 2013); Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert (Call #KF336 .H68 2013); Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century by Alex Sayf Cummings (Call #KF3035 .C86 2013); The Tough Luck Constitution and the Assault on Health Care Reform by Andrew Koppelman (Call #KF3605 .K67 2013); Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers by Jill Norgren (Call #KF367 .N67 2013); and Payback: The Case for Revenge by Thane Rosenbaum (Call #K5103 .R674 2013).

Readers of this blog post who want a preview any of these items can click on the links above to see the item record which contains information about on the subjects for the selected book and a dust jacket for the book. When an item in the BLS Library catalog has a dust jacket, users can click on it to get use Amazon’s Search Inside feature which allows users to find the exact book to borrow from the BLS Library. SARA, the BLS Library catalog also has a browse shelf feature for each item record. By clicking on the browse shelf link next to an item’s call number, users will be able to  quickly see what other items are located next to the item in the record.  This is useful for researchers who are interested in a specific topic or an author and would like to see what else the library might own quickly.