Sunday, August 31, 2008

Happy Labor Day

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers according to the US Department of Labor’s History of Labor Day. The holiday originated in 1882 when the Central Labor Union of New York City sought to create "a day off for the working citizens". That year, the first Labor Day Parade took place in New York City on Tuesday, September 5, 1882. The Library of Congress American Memory web site has a brief entry about the First Labor Day parade in Union Square.

The DOL site states that the New York State Legislature was the first to introduce a state bill recognizing Labor Day, but the first to become law was passed by Oregon on February 21, 1887. Later that year, Colorado, Massachusetts, New Jersey and New York also enacted laws establishing the Labor Day holiday followed by Connecticut, Nebraska, and Pennsylvania by the end of the decade. By 1894, 23 other states had adopted the holiday in honor of workers. Finally, on June 28, 1894, President Grover Cleveland signed S. 730 into law declaring Labor Day, the first Monday in September of each year, as a national holiday.

Originally, Labor Day legislation did not require private employers to give their employees a day off from work, much less require them to give employees holiday pay. See N.Y. Laws of 1887, Ch. 289; 28 Stat. 96 (1894). Some businessmen voluntarily gave their employees a day off, but not most. As Samuel Gompers explained to a Labor Day crowd in San Francisco in 1911, “Labor day in America was not given to us any more than other things are given to us, on a silver platter. It was wrung from unwilling employers and legislatures. We just took it.”

Today with the diminishing strength of the American labor movement, Labor Day has come to mean merely a three-day weekend marking the end of summer and time to go back to school. This Labor Day, September 1, Workplace Fairness will launch the Take Back Labor Day blog project on the Today's Workplace blog. You can visit the blog and share your opinions about workplace fairness in the US. For a list of participants in the project on workplace issues, click here.

Thursday, August 28, 2008

Recommended Reading for First Year Law Students

Acing Your First Year of Law School: the Ten Steps to Success You Won’t Learn in Class by Shana Connell Noyes & Henry S. Noyes (Main – Call # KF283 .N69 1999)

How to Succeed in Law School, 2nd ed., by Gary A. Munneke (Main – Call # KF283 .M86 1994)

Law School Confidential: the Complete Law School Survival Guide: By Students, For Students by Robert H. Miller (Main – Call # KF283 .M55 2000)

The Law Student's Pocket Mentor: From Surviving to Thriving by Ann L. Iijima (Reserve – Call # KF283 .I35 2007)

Reading like a Lawyer: Time-Saving Strategies for Reading Law like an Expert by Ruth Ann McKinney (Main – Call # KF283 .M398 2005)

Slaying the Law School Dragon: How to Survive--and Thrive--in First-Year Law School, 2nd ed., by George Roth (Main – Call # KF283 .R68 1991)

Succeeding in Law School by Herbert N. Ramy (Reserve – Call # KF283 .R36 2006)

Wednesday, August 27, 2008

First-Year Tips: "How to Read a Legal Opinion"

Now that the Brooklyn Law School 1Ls have gone through orientation, this is a good time to suggest reading Professor Orin S. Kerr’s How to Read a Legal Opinion (available for downloading at SSRN's Legal Scholarship Network) published in the Autumn 2007 edition of the GREEN BAG, An Entertaining Journal of Law, Vol. 11, No. 1, p. 51. As stated in the abstract, this popular essay "is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them." SSRN is available on the Brooklyn Law School Library Database page. To download the full text of the article on SSRN, registration is required.

Friday, August 22, 2008

A Constitutional Presidency

On the eve of the national conventions of the two major political parties, C-Span aired a Massachusetts School of Law forum on Presidential Power in America: Article II of the Constitution. Panelists included Peter Irons, Professor of Political Science at the University of California, Jules Lobel, Professor of Law at the University of Pittsburgh and David Adler, Professor of Political Science at Idaho State University. The entire hour long panel discussion is worth viewing. Of particular interest at 24 minutes into the video is Professor Adler’s discussion of "A Constitutional Presidency" which runs for 12 minutes.

In his section of the panel discussion, Professor Adler says that the Bush administration has claimed powers for itself that the British people had refused to grant King George III at the time of the Revolutionary War. "No executive in the history of the Anglo-American world since the Civil War in England in the 17th century has laid claim to such broad power," he says. "George Bush has exceeded the claims of Oliver Cromwell who anointed himself Lord Protector of England." He goes on to say that Bush has "claimed the authority to suspend the Geneva Convention, to terminate treaties, to seize American citizens from the streets to detain them indefinitely without benefit of legal counseling, without benefit of judicial review. He has ordered a domestic surveillance program which violates the statutory law of the United States as well as the Fourth Amendment."

Adler relates that the authors of the US Constitution wrote that the president "shall take care to faithfully execute the laws of the land" because "the king of England possessed a suspending power" to set aside laws with which he disagreed, "the very same kind of power that the Bush Administration has claimed." Former Attorney General Alberto Gonzalez, Adler notes, repeatedly referred to the President's "override" authority, "which effectively meant that the Bush Administration was claiming on behalf of President Bush a power that the English people themselves had rejected by the time of the framing of the Constitution."

Adler says the Framers sought an "Administrator in Chief" that would execute the will of Congress and the Framers understood that the President, as Commander-in-Chief "was subordinate to Congress." That very concept, Adler states, derived from the British, who conferred it on one of their battlefield commanders in a war on Scotland in 1639 and it "did not carry with it the power over war and peace" or "authority to conduct foreign policy or to formulate foreign policy." That the Commander-in-Chief was subordinate to the will of Congress was demonstrated in the Revolutionary War when George Washington, granted that title by Congress, "was ordered punctually to respond to instructions and directions by Congress and the dutiful Washington did that," according to Adler.

Adler relates how John Yoo, formerly of the Office of Legal Counsel, wrote in 2003 that the President could authorize the CIA or other intelligence agencies to resort to torture to extract information from suspects based on his authority. However, Adler points to the 1804 case in Little vs. Barreme, 6 U.S. 170, where the US Supreme Court affirmed that the President is duty-bound to obey statutory instructions issued by the Congress along with United States v. Smith, 27 Fed. Cas. 1192 (C.C.D.N.Y.1806) where Justice Paterson wrote that “[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids”. Adler also cites the reference in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) to the “equilibrium established by our constitutional system” as an argument against unchecked executive discretion.

"In these last eight years," Adler states, "we have seen presidential powers soar beyond the confines of the Constitution. We have understood that his presidency bears no resemblance to the Office created by the Framers... This is the time for us to demand a return to the constitutional presidency. If we don't, we will have only ourselves to blame as we go marching into the next war as we witness even greater claims of presidential power."

For more on the Constitution and the powers of the President, see The Constitution and the Termination of Treaties by David Adler, Call No. KF5055 .A94 1986 and Bush, the Detainees, and the Constitution: the Battle over Presidential Power in the War on Terror by Howard Ball, Call No. KF5060 .B35 2007 in the BLS library collection

Thursday, August 21, 2008

State Court Challenge to Atlantic Yards

An earlier post here reported the 2nd Circuit Court of Appeals’ ruling affirming the dismissal of the complaint which challenged the Atlantic Yards development project in downtown Brooklyn on the grounds that it violated the Public Use Clause of the Fifth Amendment. On June 23, the US Supreme Court refused to hear the case. Justice Alito was the only member of the Court who would have granted certiorari of the ruling’s affects on local property rights. According to an article in The Brooklyn Paper, local opposition to the Atlantic Yards project has now turned to the state courts focusing on the condemnation proceedings.

On August 1, 2008, those opponents filed a petition with the Appellate Division in New York seeking to prevent the condemnation of their property by the New York Empire State Development Corporation (ESDC). The Appellate Division has exclusive jurisdiction over the Eminent Domain Procedure Law. The nine property owners and tenants whose homes and businesses face condemnation to make way for the $4 billion project that includes the Barclays Center arena for the NBA’s Nets and 16 mixed-use buildings specify five claims in the petition:
1. the condemnation violates the public use clause in the New York State Constitution (the Second Circuit already held that it did not violate a similar provision in the federal constitution) asserting that the State’s claims of public benefit are a pretext to justify a private taking
2. the plaintiffs’ due process rights under the State Constitution were violated (here they allege that the public process was a sham and that this was a “back room deal” with former Governor Pataki, Mayor Bloomberg and Bruce Ratner, the developer of the Atlantic Yards project)
3. the Equal Protection clause of the State Constitution was violated (because they were singled out for unequal, adverse treatment, and because Ratner was selected to receive favorable treatment)
4. the State Constitutional requirement that the housing part of the project be restricted to persons of low income with a preference for persons who live or shall have lived in the area has not been met and
5. the condemnation violates the “public use, benefit or purpose” requirement contained in the State Eminent Domain Procedure Law
The main claim is that the condemnation is for luxury housing and violates Article 18, § 6 of the State Constitution regarding the low-income and current resident requirement. Article 18, § 6 states:
No loan, or subsidy shall be made by the state to aid any project unless such project is in conformity with a plan or undertaking for the clearance, replanning and reconstruction or rehabilitation of a sub-standard and unsanitary area or areas and for recreational and other facilities incidental or appurtenant thereto. The legislature may provide additional conditions to the making of such loans or subsidies consistent with the purposes of this article. The occupancy of any such project shall be restricted to persons of low income as defined by law and preference shall be given to persons who live or shall have lived in such area or areas.
Oral arguments are expected to take place in January 2009.

Monday, August 18, 2008

Ten Tips for Incoming 1Ls on How to Succeed in Law School

In the "The Paper Chase", the TV series that ran from 1978 to 1986, the fictional curmudgeon and Contracts Professor Charles W. Kingsfield, Jr. famously said “You come in here with a skull full of mush and you leave thinking like a lawyer.” Law school does in fact change the way you read, the way you think, and the way you analyze; it's designed to remake you into something much different than you were before. Here are some things to do to ease the grueling journey:

1. Get advice from successful upper class members.

One key to success is to learn from students who are already successful in the areas where you want to excel. All law students want to make good grades, since they, more than anything else, are rewarded upon graduation. Seek out students who are at the top of their class and find what worked for them, how they managed their time, and how they prepared for their finals. Find students who’ve had professors you are taking to learn what to expect and what the professor expects of you. If you want to learn litigation skills, look for a mentor on the national mock trial or moot court team. If you want to become an editor of a law review or a law journal or want to improve your writing skills, find someone who’s already on a journal to learn about what it’s like and get tips on effective time management.

2. How you do on the final is more important than how you answer a question in class.

Most 1Ls are terrified of the Socratic Method and it’s easy to be caught up in reading for class to make sure you can answer the question when a professor calls on you. But knowing the details of every case won’t get you the best grades. Instead, step back and see the big picture. Don’t panic if you get an answer wrong in class. Make sure you understand why you missed it. Focus on preparing for the final exam because that’s what really counts.

3. Don’t reinvent the wheel.

Every year, 1Ls start their outlines from scratch. Creating your own outlines is useful, especially when you first start studying the law. But the time you have is limited. Make the best use of your time by using existing outlines as a starting point, which you can then edit and make your own. Of course, don’t rely solely on someone else’s outline. Make sure you agree with their conclusions and summary of the law. When in doubt, ask a professor.

4. Get to know your professors.

Law schools pride themselves on low student to professor ratios so that professors have the opportunity to get to know their students. But, it’s up to you to take advantage of this opportunity. Take the time to meet with professors with questions during the semester, rather than waiting till the end of the semester. Some students never set foot in a professor’s office and do very well on their exams. Just because they haven’t been in the professor’s office doesn’t mean they haven’t spent the semester getting to know the professor. Seek out prior exams or model exams that the professor has made available, so you know what to expect on test day. The Registrar maintains Exams on File which you can access with your BLS username and password.

5. Get to know your law librarians.

Law librarians are a great resource. They know how to use online resources like Westlaw and Lexis, as well as print resources better than probably anyone else in the law school. They are also there to help you find what you are looking for. Law librarians are familiar with many databases and resources often overlooked by experienced researchers or lawyers. They can also help you form good searches, give you search tips and point to the best starting point for your topic.

6. Find time for yourself.

Law school will be the most challenging undertaking in your life. So maintain a healthy lifestyle with regular sleep patterns and exercise. It may be hard to fit these into your busy schedule but they're more crucial to a balanced life for 1Ls.

7. Use technology wisely.

The smaller the laptop, the better. You law school books too big and heavy to lug a 17 inch laptop around every day. Back up your work or email yourself documents that you are working on at the end of each day. On the weekends, back your laptop up to external drives or to a thumb drive.

8. Master the law school exam.

Your entire grade for a law school class is often based on a single final exam. Master the law school exam process: read the paperback Getting to Maybe: How to Excel on Law School Exams (Call No. KF283 .F47 1999)and see Law school exams consist of a long fact pattern followed by a series of questions. There are often no right or wrong answers. You're graded on spotting issues and analyzing potential outcomes. The prediction isn’t what you are graded on; it's the analysis of the facts and law that leads to your prediction that's graded. If you don’t correctly spot the issue, you lose the opportunity to get points for either the analysis. A very simple way to think of a law school answer is set forth by the IRAC Method: Issue, Rule of Law, Analysis, and Conclusion.

9. Join a study group.

Going over the material with another person or a small group of people will help you hash out concepts, and ensure a thorough overview of the subject. Study groups sessions should be secondary to extensive individual study, so as a group you can focus on practice questions, clarifying issues, and making sure you have hit all the main concepts.

10. Don’t underestimate the value of after-class review or overestimate the value of reading for class.

After-class review is as important, if not more important than reading for class. Reviewing after class ensures that you completely understand the material. It should be the third time you are covering the material, the first being when you read before class, and the second being when you went over it in class. After-class review also allows you the opportunity to take any questions you still have on a topic to your professor for clarification. After class review sessions are also the perfect time to review and make notes to your outline.

Good luck to all 1Ls as you start class here at BLS.

Saturday, August 16, 2008

Freebase Parallax: a New Way to Search the Web

With the growth of information on the web, Google and Wikepedia searches, once viewed as novel and sophisticated, now seem fairly simplistic as they search only one query at a time. Work on the Semantic Web has been underway for some time to navigate the growing amount of data on the web in ways that are more usable through more intelligible interfaces. So move over Google and Wikipedia; here comes Freebase Parallax! Using the slogan “Don't just search for one thing! Explore a whole set of related things together!”, it is a new way to search the web.

A recent article on ZDNet entitled The Future of the Web describes how Parallax, a novel browsing interface, can make contextual connections with machine readable data for richer search result sets which in turn can display visual representations of the search results. Describing how the semantic web works is not easy. Fortunately, David Huynh, who designed Parallax, has made a video that is a useful, clear demonstration of the enormous promise and power of the future of knowledge sharing. Parallax is truly an amazing product that allows for complex web searching more simply and in far fewer steps than Google and Wikipedia. Check out this video by David Huynh posted on Vimeo at

Freebase Parallax: A new way to browse and explore data from David Huynh on Vimeo.

Try the Parallax search interface here, using “Foreign donations to 2008 US Political Candidates “as a search query. At this point the interface is still slow. But ultimately this kind of searching will have a major impact on the future of searches in large enterprises.

Friday, August 15, 2008

2d Circuit Dismisses 9/11 Lawsuit Against Saudi Arabia

Yesterday, in a 67 page opinion, the U.S. Court of Appeals for the Second Circuit issued its ruling In re Terrorist Attacks on September 11, 2001 affirming the 2006 ruling by the late U.S. District Judge Richard Casey, In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y. 2005), which dismissed a lawsuit brought by survivors of the 9/11 attacks against the nation of Saudi Arabia and four of its princes. The Second Circuit ruled that the defendants were protected from prosecution under the Foreign Sovereign Immunities Act (FSIA). The plaintiffs accused the princes of donating money to anti-American charities, which then funneled the funds to al-Qaeda. Judge Jacobs summarized the holding, as follows:
We conclude that the FSIA protects the appellees - most obviously, the Kingdom iself. First, we hold that the FSIA applies to individual officials of foreign governments in their official capacities, and therefore to the Four Princes. Second, we affirm the district court’s conclusion that the [Saudi High Commission for Relief to Bosnia and Herzegovina] is an “agency or instrumentality” of the Kingdom, to which the FSIA likewise applies.

Further, we conclude that none of the FSIA’s exceptions applies. The plaintiffs’ claims do not come within the statutory exception for state-sponsored terrorist acts, 28 U.S.C. § 1605A (“Terrorism Exception”), because the Kingdom has not been designated a state sponsor of terrorism by the United States. As to the exception for personal injury or death caused by a foreign sovereign’s tortious act, id. § 1605 (a)(5) (“Torts Exception”), we decline to characterize plaintiffs’ claims - expressly predicated on a state-sponsored terrorist act - as sounding in tort. Nor do the plaintiffs’ claims come within the statutory exception for a foreign sovereign’s commercial activity, id. § 1605(a)(2) (“Commercial Activities Exception”), because the defendants’ specific alleged conduct - supporting Muslim charities that promote and underwrite terrorism - is not conduct in trade, traffic or commerce.

Accordingly, we agree with the district court that it lacked subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. We likewise affirm the district court’s dismissal of the claims against the Four Princes (in their personal capacities) and Mohamed for want of personal jurisdiction, and the denial of the plaintiffs’ motions for jurisdictional discovery.
For a legislative history of the Foreign Sovereign Immunities Act, see
Foreign Sovereign Immunities Act of 1976 with Amendments: a Legislative History of Pub. L. No. 94-583 compiled by William H. Manz, Call Number. KF1309.5 F67.

Saturday, August 9, 2008

Episode 031 - Conversation with BLS Professor Susan N. Herman

Episode 031 - Conversation with BLS Professor Susan N. Herman.mp3

In this conversation, Professor Susan N. Herman discusses her participation in the Tenth Annual Supreme Court Review held on Aug. 5, 2008 and sponsored by the Practicing Law Institute (PLI) in New York, NY. The Co-Chair(s) of the program were:

Erwin Chemerinsky, Founding Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
Martin A. Schwartz, Professor of Law, Touro Law Center
Speakers participating in the program along with Susan N. Herman, Centennial Professor of Law, Brooklyn Law School were:
Preeta D. Bansal, Skadden, Arps, Slate, Maegher & Flom LLP
Derrick A. Bell, Jr., Visiting Professor of Law, New York University School of Law
Joan Biskupic, Supreme Court Correspondent & Author, USA Today
Leon Friedman, Joseph Kushner Distinguished Professor of Civil Liberties Law, Hofstra University School of Law
Burt Neuborne, Inez Milholland Professor of Civil Liberties, Legal Director, Brennan Center of Justice, New York University School of Law
Jeffrey Toobin, Staff Writer, The New Yorker, Senior Analyst, CNN
Prof. Herman discusses both the highlights of the recently concluded Supreme Court term and cases expected to be addressed in the upcoming term along with the impact of the presidential election on the future of the Court. She also recommends reading books on the Supreme Court authored by two of the panel members: The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin, Call No. KF8748 .T66 2007 and Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic, Call No. KF8745.O25 B57 2005.

Friday, August 8, 2008

Corporate, Securities Law Are Hottest Practice Areas, U.S. Survey Shows

An article by Charles Toutant in this week’s New Jersey Law Journal reports the findings of a national poll that the pressure of regulatory compliance on corporations is leading to corporate and securities law offering the most job opportunities for lawyers in the coming decade. Litigation is a close second in the survey which was released on July 29 and conducted by staffing agency Robert Half Legal. The survey posed this question to practicing lawyers “Which one of the following legal practice areas, in your opinion, will offer the greatest number of job opportunities over the next 10 years?” Their responses were:

Corporate and securities 24%
Litigation 21%
Intellectual property 16%
International law 16%
Environmental 12%
Commercial real estate 5%

The article cites the increasingly global nature of capital markets as creating more business opportunities here, and therefore more work for U.S. lawyers. Quoting Dina Cappuccio of Advocate Legal Search and Consulting in Newark, several law firms have put in requests for corporate and securities lawyers. “'In terms of keeping corporate law hot, I think one of the reasons is there's a lot of foreign money coming in.”

Wednesday, August 6, 2008

Border Crossings, Laptops and the Constitution

A Washington Post article by Ellen Nakashima, Travelers’ Laptops May Be Detained At Border, reported on newly announced powers of the Transportation Safety Administration (TSA) to search and seize electronic devices such as laptops, cell phones and Ipods at border crossings into the US:
Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including US citizens — are reasonable and necessary to prevent terrorism... The policies cover 'any device capable of storing information in digital or analog form,' including hard drives, flash drives, cell phones, iPods, pagers, beepers,
and video and audio tapes. They also cover 'all papers and other written documentation,' including books, pamphlets, and 'written materials commonly referred to as pocket trash...

Key documents related to this newly announced power include:

United States Constitution Bill of Rights, Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The DHS official policy on laptop confiscation which says: “officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.”

The policy stems from searches reported by DHS to have uncovered "violent jihadist materials" as well as images related to child pornography. The child porn case involved Michael Arnold who was stopped at Los Angeles International Airport where Customs and Border Protection (CBP) agents searched his laptop after he returned to the country from the Philippines in July of 2005. The agents found images they said were child pornography. At the trial of the criminal action filed against Arnold, the defendant moved for the suppression of the images and the search. The government argued it had reasonable suspicion that a crime had been committed and that even if they had no suspicion at all, the search was allowed because it took place at a border point of entry.

The District Court for the Central District of California ruled in favor of the defendant in U.S. v. Arnold, 454 F.Supp.2d 999 (C.D.Cal.,2006) finding that the CBP officer who conducted the search did not have a reasonable suspicion. The court entered an order suppressing the evidence obtained in the search of Arnold's laptop. That decision was reversed by the 9th Circuit Court of Appeals in U.S. v. Arnold, 523 F.3d 941 (9th Cir. 2008) stating "Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicion-less border searches of travelers' luggage that the Supreme Court and we have allowed…" and that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border".

The US Senate Committee on the Judiciary Subcommittee on the Constitution held hearings on “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” on Wednesday, June 25, 2008 with Senator Feingold presiding as Chairman.

Travelers who want to minimize exposure of their personal information are advised to clean up their laptops and other devices before leaving the country, including email and client data, old love letters and photos, as well as the browser's cookies, cache and browsing history. Turning off laptop computers before going through customs is a good idea.