Practicum: Online Forum for Legal Writing

Brooklyn Law School has launched a new version of Practicum, the online companion to the school’s four existing scholarly journals. Practicum embraces the Internet to publish timely pieces in an accessible forum at a time when people increasingly retrieve their information from blogs, online news outlets, and legal databases where traditional print law journals are increasingly becoming a thing of the past. Unlike most scholarly publications, Practicum offers an outlet for practitioners to reflect on news, issues, and developments in the law and legal theory, including those developments featured in our paper volumes. Practicum provides an opportunity for practicing attorneys as well as law students to engage in meaningful, fast-paced discourse on the most cutting edge topics in their fields. The new version of Practicum has three featured posts: How Colleges and Universities Can Turn Green Without Some of the Typical Pitfalls by Richard J. Sobelsohn, BLS Class of 1998; Why Fair Pay is About More than Fairness by Hanna Bergqvist Jackson, an LL.M. student BLS Class of 2013; and Regulating the Practice of Charging Loan Interest as a Case Expense by Alexander Goldman, BLS Class of 2014.

Ethics and Impaired Lawyers

The Brooklyn Bar Association, established in 1872, hosts programs to promote professional competence among attorneys and increased respect for the legal system. On Thursday, March 21, 6:00-8:00pm, it will hold a Free Ethics Opportunity with the Lawyers Helping Lawyers Committee. The program, called Don’t Shoot the Messenger: A Tattler’s Tale Ethical Considerations and Impaired Lawyers,, which will be held at 123 Remsen Street in Brooklyn Heights and is free to Brooklyn Bar Association and Brooklyn Women’s Bar Association members who pre-register and to Brooklyn Law School Students and Faculty who do not need to pre-register. 

Presenters include the Hon. Sallie Krauss and the Hon. Robin S. Garson, co-chairs of the BBA Lawyers Helping Lawyers Committee; Eileen Travis, MSW – Director, NYCBA Lawyers Assistance Program; Deborah A. Scalise, Esq., former Deputy Chief Counsel, Disciplinary Committee of the Appellate Division 1st Department; Gregory T. Cerchione, Esq., Chair, BBA Grievance Committee and member of Committees on Character & Fitness of the Appellate Division 2nd Department; James J. Keefe, Esq.; and Kathleen Waterman, Esq.

The Course Description reads: Learn to recognize the signs that indicate a law partner or attorney in your office is impaired by alcohol or drug abuse. Our panel of experts will discuss the ethical and practical steps necessary to protect clients and the law firm, including the use of the Model Policy for firms trying to keep a troubled lawyer employed. Find out about confidential resources available to help save the impaired attorney’s life, what it takes to defend against disciplinary charges associated with the impaired behavior, including an overview of the applicable Rules of Professional Conduct and the Appellate Divisions’ Diversion Rules, and what might put your own license at risk.

The road to impairment can begin long before a lawyer gets a license. The alarming rate of alcohol and drug abuse by law students attempting to mask anxiety or depression prompts us to include a discussion of the hurdles that Bar applicants must negotiate when they have exhibited behavior that calls into question their fitness to practice law.

Symposium on Bias in Decision Making

The Brooklyn Law School Legal Writing Program, the Center for the Study of Law, Language and Cognition and the Journal of Law and Policy are sponsoring a Symposium on The Impact of Cognitive Bias on Persuasion and Writing Strategies on Friday, March 1, 9:00 am - 1:00 pm at the Subotnick Center, 250 Joralemon Street, Brooklyn, NY. After opening remarks by BLS Professor Lawrence Solan, there will be two panels: Implications for Advocacy moderated by BLS Professor Marilyn Walter and Implications for Persuasion moderated by BLS Professor Elizabeth Fajans. View the full agenda here. Please RSVP online by Wednesday, February 27.

The Symposium will address research into the psychology of decision-making that has demonstrated that when people are called upon to process complex and ambiguous information, they rely on mental shortcuts to ease the cognitive burden of these tasks. Such heuristics and biases, as they are called, sometimes lead to faulty judgments because they are naturalistic and intuitive (involving, for example, “gut instincts” and personal experience), and prone to error more than are analytical judgments based on careful consideration and logical processing of the information presented.

The legal profession has explored the role of cognitive bias in many domains, ranging from their contributions to jury-based and judiciary decision-making to their influence on negotiation. This symposium refocuses the discussion by looking at the function and role of cognitive bias in legal writing and explores both the persuasive power and the related ethical challenges of cognitive bias in this realm, with an emphasis on improving legal writing and legal writing strategy.

Photography and the Law

Among the 54 items in Brooklyn Law School Library’s New Books List dated February 22 is Controversies: A Legal and Ethical History of Photography (Call #TR15 .G5713 2012) by Daniel Girardin and Christian Pirker. The book contains a collection of about 75 photos that show that photography is a medium that has provoked controversy since its invention. Each photograph has a complex and often serious story. Whether representing photography as art or as documentary fact, photography has come under attack and engaged discussion both informally and through the courtroom. From the 1840 photo by Hyppolyte Bayard Self Portrait as a Drowned Man to the more recent photos of Abu Ghraib prisoners from 2004, the book shows how photography has provoked legal controversy. It reviews the main cases where photographers have found themselves in court or that have led to the censuring of images.

The authors observe that the issues involved are associated with money, politics, morality (both lay and religious), sexuality or the acknowledgement of the artistic status of the author. The preface references four cases from 2007 that were all related to financial, moral or political matters, similar to those that have appeared throughout the history of photography: the March 2007 case of fashion designer John Galliano whom a Paris tribunal order to pay €200,000 to photographer William Klein for plagiarizing his contact sheet graphic work in an ad campaign; the June 2007 California case of Christoff v. Nestle where a jury awarded the plaintiff $15.6 million on the basis that Nestlé used the plaintiff model’s image without his permission; the September 2007 case where a photograph by Nan Goldin, Klara and Adda Belly Dancing was removed from a British art exhibition for indecency; and the October 2007 case where Alexander Sokolov’s photo Police Officers Kissing was excluded from a Russian gallery on the grounds that the work would be a “disgrace to Russia.”

Many of the pictures contained in the book are well known. The book features works by Michael Light, Oliviero Toscani, Gary Gross, Frank Fournier, Andres Serrano, Annelies Strba, Marc Garanger, Man Ray and Lewis Carroll, among others.

LLAGNY Breakfast for Law Students

Bill Mills, President of the Law Library Association of Greater New York has announced the Student Breakfast and Library Tours, an annual event organized by LLAGNY’s Student Relations Committee. This is a great way for Brooklyn Law School students to learn about law librarianship and get involved in LLAGNY. This year's free breakfast event will be held on Friday, March 22 beginning at 8:30am at the historic law library located at the New York City Bar Association, 14 Vesey Street, New York, NY. For details, see the flyer to the left. Law students enrolled in Brooklyn Law School who are LLAGNY members are welcome to attend. Please RSVP by March 15.

Supreme Court Voting Rights Case

The US Supreme Court has set February 27 for oral argument in Shelby County v. Holder dealing with Congress’ reauthorization of Section 5 of the Voting Rights Act of 1965. Almost 50 years ago, Congress enacted the VRA to prevent state and local governments from adopting any new election laws aimed at keeping minorities from voting until they could prove that those laws would not discriminate. The issue before the Court is “Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.”

In Northwest Austin Municipal Utility Dist. No. One v. Holder, 557 U.S. 193 (2009), the Court ruled that political subdivisions may seek relief from the Voting Rights Act's preclearance obligations noting that “Things have changed in the South.” It considered striking down Section 5, the key part of the 1965 law, on the theory that “the evil that Section 5 is meant to address may no longer be concentrated” in the states, counties, and cities that must obey that section. Section 5 currently applies to nine states (Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia and Alaska) as well as parts of Florida, California, New York, North Carolina, South Dakota, Michigan and New Hampshire. They are required to get permission from the Department of Justice before they may change any law dealing with voting.

The Court granted certiorari to review Shelby County, Alabama v. Holder, 679 F.3d 848 (D.C. Cir. 2012). Shelby County, southeast of Birmingham, has a population of nearly 200,000 people, more than eighty-three percent of whom are white. Instead of seeking Justice Department approval for any voting change, it made a plea to strike down Section 5 as written. It lost in both the federal district court and in the U.S. Court of Appeals for the D.C. Circuit. Shelby County is asking the Court to rule on the constitutionality of Section 5 under three provisions of the Constitution: the Tenth Amendment, which seeks to protect the sovereignty of states by preserving their rights of self-government; the Fifteenth Amendment, which gives Congress authority to pass laws to end the denial of voting rights based on race, and Article IV, which guarantees each state that it will have “a republican form of government,” meaning the power to govern itself without excessive interference from the national government.

There are other challenges to Section 5 that the Court has addressed: Nix v. Holder (where the Court denied certiorari in a case involving white voters in North Carolina who brought action against United States Attorney General, challenging hiss refusal under Voting Rights Act (VRA) to “preclear” proposed amendment to city's charter providing for nonpartisan system for electing mayor and city council) and Texas v. Holder, where the DC Circuit Court held that it would not review U.S. Attorney General's denial of preclearance, but would instead determine for itself whether Texas was entitled to preclearance of proposed change in voting procedures. The Texas case may come before the Court in the future.

The Brooklyn Law School Library has in its collection The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Call #KF4891 .M67 2012) by Daniel McCool. The book addressed the 2006 reauthorization of provisions of the VRA that were set to expire in 2007 and that passed by a wide margin in the House, and unanimously in the Senate. Divided into three sections, the book uses a point/counterpoint approach to explain the legal and political context of the Act, pairs three debates concerning specific provisions or applications of the Act, and offers commentaries from attorneys with differing viewpoints.

Commencement Speaker Kenneth Feinberg

Brooklyn Law School Dean Nicholas Allard has announced that Kenneth R. Feinberg will deliver the 2013 Commencement address on June 7 at Avery Fisher Hall in Lincoln Center. Best known as the leading attorney overseeing settlement payouts in the wake of massive disasters, Feinberg has repeatedly been named by the National Law Journal as one of the “100 Most Influential Lawyers in America." He served as the Special Master of the Federal September 11th Victim Compensation Fund of 2001, in which he handled the monumental responsibility of evaluating claims and determining appropriate compensation to the victims’ families. In 2009, Treasury Secretary Timothy Geithner named him as Wall Street’s “pay czar” to calculate compensation for the executives of failing financial institutions that had received taxpayer bailout money. In 2010, he was appointed as the independent administrator of a $20 billion fund set up to compensate victims of the BP oil spill in the Gulf of Mexico. Most recently, Pennsylvania State University asked him to assist in resolving  claims concerning the child sex-abuse victims of former assistant football coach Jerry Sandusky.

The BLS Library has in its collection several items written by Feinberg including What Is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11 (Call #KF1328 .F45 2005). At 190 pages, the book is not necessarily for lawyers as it describes the reactions of the victims' families to the 9/11 tragedy. In the preface, Feinberg explains that the book “is not a diary of my experiences in relating to the 9/11 families, although personal stories are interspersed throughout the text. Instead, this book focuses on how my administration of the 9/11 Fund changed me, the public policy implications of the story, and, perhaps most important, the lessons that the families can teach us about life, death, and coping with grief.” The book has enormous emotional weight. In the end, he concludes that he was changed both professionally and personally. His career path has changed dramatically as a result of his role in the Fund. He has apparently “radically downsized” his law firm, and devotes more time to “educating the next generation of lawyers” as opposed to mediating disputes between Fortune 500 companies. When he does mediate, he says he now chooses cases that are more “interesting and meaningful,” such as those involving sexual abuse accusations in the Roman Catholic Church, or racial discrimination class action suits. He says he now picks and chooses cases “in a desire to do some good for both the litigants and the broader society in which I live.”

Rape is Rape

New York Assemblywoman Aravella Simotas of Queens has introduced Assembly Bill 3339, a new version of her Rape is Rape bill. In the last legislative session, she introduced a similar bill following the trial of former police officer Michael Pena, who was charged with sexually assaulting a young teacher by gunpoint in 2011. New York Penal Law 130 makes “sexual intercourse,” defined in its ordinary meaning as “any penetration, however slight,” an element of rape in the first, second, and third degree. At trial, Pena's lawyer denied that there was rape because there was no intercourse. Pena admitted attacking the woman and threatening to shoot her if she fought back. With the jury deadlocked over whether Pena's assault constituted rape, the judge declared a mistrial.

Simotas’ bill would define rape as criminal sexual conduct, rather than sexual intercourse, to ensure that offenders face the full consequences of their actions. The proposed legislation re-defines the crimes of Rape in the First, Second and Third Degrees to include oral sexual conduct, anal sexual conduct, and aggravated sexual contact in addition to sexual intercourse as an element of these rape charges. New York State Senator Catharine Young, a co-sponsor of Senate Bill 2240, said “We want to ensure that our state has the most effective and comprehensive statute in the country to prosecute violent sexual assault crimes against women. We will work with the Assembly, prosecutors and victims advocacy groups to come up with a positive solution.”

Andrew Willis, Chief Executive Officer of the Stop Abuse Campaign, a non-profit cause dedicated to supporting survivors of abuse, also spoke in favor of the bill. He said “I was raped when I was a 10 year old boy, but in New York anal rape isn’t rape it’s only a sexual assault. Working together we’re going to change that by passing the Rape is Rape bill.” An online petition is available for supporters to sign. As of Wednesday afternoon, there were more than 2,800 signatures recorded in support of the bill.

The Brooklyn Law School Library has in its collection Practical Aspects of Rape Investigation: A Multidisciplinary Approach (Call # HV8079.R35 P7 2009) by Robert R. Hazelwood and Ann Wolbert Burgess. The 592 page book cites U.S. Justice Department statistics that indicate that only 26 % of all rapes or attempted rapes are reported to law enforcement officials, and only slightly more than half of these result in the arrest of a suspect. Part of the problem lies in the public’s lack of faith in the criminal justice system’s ability to effectively deal with rape, victims, and the offenders.

Life Without Parole

Brooklyn Law School Professor I. Bennett Capers recently posted Defending Life on SSRN. It appears as Chapter 5 in Charles J Ogletree and Austin Sarat’s book Life Without Parole: America's New Death Penalty? The BLS Library has the book in its Main Collection (KF9750 .L54 2012). The abstract of Defending Life reads:

This chapter interrogates what it means to defend LWOP as an alternative to death. In demanding the abolition of the death penalty — as cruel and unusual, as violative of equal protection, as immoral, and as an inefficient deterrent — have abolitionists unwittingly erected another evil, another type of death, LWOP? One of the most visible flaws in the imposition of the death penalty has been its linkages, historically and now, to race. What does it mean that LWOP, by contrast, is largely invisible, rendering race largely invisible? What does it mean to defend LWOP, that other death, in a society where the resources to defend are miniscule compared to the resources to defend actual death? Finally, what does it mean to us as citizens to live in these new cities, newly configured, sanitized, and purged — again, often along racial lines, and almost always along class lines — via the tool of LWOP?

The State's Affirmative Duties to Promote “Just” Property Allocation

Brooklyn Law School Professor Christopher Serkin recently posted on SSRN an article entitled Affirmative Constitutional Commitments: the State's Obligations to Property Owners. The article is scheduled for publication later this year in William & Mary Law School’s Brigham-Kanner Property Rights Conference Journal. The abstract for the article reads:

This Essay argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.