Friday, June 26, 2009

Episode 043 - Conversation with Professor of Law David J. Reiss

Episode 043 - Conversation with Professor of Law David J. Reiss.mp3

In this pod cast, BLS Professor of Law David J. Reiss discusses his latest paper Ratings Failure: The Need for a Consumer Protection Agenda in Rating Agency Regulation. In the paper, Prof. Reiss describes how, as the credit crisis unfolded, rating agencies were properly identified as playing a central role in causing the crisis and misleading investors and that they took positions that were particularly bad for many homeowners.

His article first reviews the explosive growth of the subprime mortgage market. It then discusses the ways in which the leading rating agencies, Standard & Poor's, Moody's and Fitch, acted as government-approved gatekeepers to the financial markets and contributed to the rapid expansion of the subprime market. These three entities profited from the growth of that market and suppressed efforts by states to crack down on the predatory lending practices that had become endemic to it.

The article concludes that ongoing efforts to reform the regulation of the rating agencies fail to address their systemic bias against the public interest. As their regulators seek to tighten oversight of these important players in the financial markets, it is important to ensure that future regulation provides additional protection for consumers as well.

For more of Prof. Reiss' scholarship, see his Selected Works page.

Thursday, June 25, 2009

US Senate Apology for Slavery

From September 1862 to January 1863, Abraham Lincoln issued several draft documents that became the Emancipation Proclamation declaring free all slaves residing in the territory in rebellion against the federal government. According to the 1860 U.S. census, nearly four million slaves were held in a total population of just over 12 million in the 15 states in which slavery was legal. The Proclamation did not actually end the practice of slavery in America which had been in existence for more than two and a half centuries from 1607 to 1865. The end of slavery came several years later with the passage of the 13th Amendment to the Constitution on Dec. 18, 1865.

More than 146 years later, the US Senate recently passed by voice vote a resolution apologizing for slavery. The House passed a similar resolution last year. A key difference in the House and Senate versions relates to the issue of reparations. The Senate resolution contains a disclaimer that:
Nothing in this resolution (A) authorizes or supports any claim against the United States; or (B) serves as a settlement of any claim against the United States.
The House version has no such language. According to the WSJ Law Blog, The House is expected to revisit the issue next week in preparation for a joint congressional resolution. Whether the final resolution addresses the question of reparations is likely to be a topic of debate in and out of Congress.

The BLS Library has in its collection a number of items that address the topic of reparations including:

Reparations Pro & Con by Alfred L. Brophy (Call #KF4757 .B743 2006) with chapters titled: Reparations definitions -- Black (and other) reparations in history -- The modern Black reparations movement: why now, why, and what? -- Against reparations -- Evaluating reparations lawsuits -- Legislative reparations -- Reparations future, realistic reparations, and models of reparations

Uncivil Wars: the Controversy over Reparations for Slavery by David Horowitz (Call #E185.8 .H67 2002). This item has bibliographical references and chapters titled The fault line -- The controversy -- The ad -- The administrators (Berkeley) -- The students (Wisconsin) -- The professors (Brown) -- Traducing history -- Racism and free speech -- Reparations and the American idea

Wednesday, June 24, 2009

Nanotechnology, Law and Policy

On Thursday, June 25 from 6pm to 8pm, the New York City Bar Association is hosting an event entitled Do Good Things Really Come in Small Packages? Nanotechnology, Law and Policy: How our Legal System Handles Emerging Technologies. BLS Professor Edward Cheng is one of the program speakers along with Dan Abrahams of Columbia University's Science and Technology Ventures, Prof. Gregory Mandel of Temple University's Beasley School of Law and John Weiner, Associate Director for Policy in FDA's Office of Combination Products.

The subject of the event, nanotechnology, is the study of the control of matter on an atomic and molecular scale. Generally nanotechnology deals with structures of the size 100 nanometers or smaller, and involves developing materials or devices within that size. With much debate on the implications of nanotechnology and its potential for creating new materials and devices in medicine, electronics and energy production. Nanotechnology also raises many of the same issues as with any introduction of new technology, including concerns about toxicity, the environmental impact of nanomaterials, and their potential effects on global economics and other areas.

The NYSBA event focuses on whether special regulation of nanotechnology is warranted. As nanotechnology revolutionizes fields as diverse as health care, clean energy and the environment, the question arises as to how law and policy can shape the way the public might benefit from advances in this new technology and whether our legal system may need to guard against risks to public health and safety posed by such scientific advances.

This 10 minute video shows how researchers are manipulating particles at the atomic level, ushering in potential cures for cancer, clothes that don't stain, and solar panels as thick as a sheet of paper.

Tuesday, June 23, 2009

Happy Gay Pride Day!

The NYT's Caucus blog has an article entitled Obama Invites Gay Rights Advocates to White House. The White House cocktail party is set to take place on Monday, June 29, one day after the 40th anniversary of the Stonewall Rebellion, the 1969 Greenwich Village demonstrations that gave birth to the modern gay rights movement. The event is likely an effort to defuse mounting anger among LGBT organizations over the Obama Administration’s failure to honor its commitment to reverse discriminatory federal laws like Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA).

As the NY Times article states, “Whether Mr. Obama will address the complaints at Monday’s reception is unclear. One person who received the invitation said the White House was billing the event as a celebration, akin to the festive affairs the administration holds on St. Patrick’s Day or Cinco de Mayo.”

To date, DADT still remains the law despite a campaign promise to reverse it and the President has failed to block the dismissal of gays and lesbians facing courts martial for disclosing their sexual orientation. Moreover, the DOJ earlier this month filed a brief in support of its motion to dismiss the complaint in Smelt v. United States, the first gay marriage case filed in federal court challenging DOMA. The language in the brief included this argument at pages 27-28:

Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

As the NY Times article states, “Whether Mr. Obama will address the complaints at Monday’s reception is unclear. One person who received the invitation said the White House was billing the event as a celebration, akin to the festive affairs the administration holds on St. Patrick’s Day or Cinco de Mayo.”

Sunday, June 21, 2009

Has the RIAA Gone Too Far?

In previous posts here and here and here, the BLS Library Blog has tracked news about the Recording Industry Association of America (RIAA). In what appears to be its latest victory, the RIAA convinced a jury in a Minnesota federal court to enter a verdict against Jammie Thomas-Rasset, a 32-year-old Minnesota woman, for illegally downloading music from the Internet. The jury fined her $80,000 each for 24 songs for a total of $1.9 million. The case was tried earlier in 2007, when a different jury assessed Thomas-Rasset a $220,000 penalty ($9,100 per song). The defendant filed an appeal and won a retrial, which resulted in this week's conclusion.

The blogosphere is abuzz with outrage beginning within seconds after the verdict was announced. "I think $2 million for downloading 24 songs strikes almost everyone as being a little disproportionate," says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation in an article entitled Record Labels' $1.9 Million Win in Thomas Retrial Constitutional?. "According to people who were in the courtroom, almost everyone inside uttered an audible gasp when that verdict came in."

The size of the fine was guided by U.S. copyright law, which provides for a penalty of anywhere from $750 to $150,000 per violation. It was up to the jury, however, to decide where to land within that spectrum. The problem, von Lohmann says, is that there are no meaningful guidelines on how that decision should be reached. "The copyright law entitles people to essentially pull a number out of a hat, all the way up to $150,000 per song," he says. "If the copyright law were more reasonable--if, say, you had to make some sort of reasonable guess as to what the actual harm was--then I think juries would come in with more reasonable results."

The Supreme Court has previously indicated that "grossly excessive" punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the "degree of reprehensibility" of the defendant's actions, along with how the penalty compares to similar ones issued in the past. It seems, then, there may be a clash between two ideals: The parameters of the copyright law and the protection provided by the Constitution. What's more, as the Electronic Frontier Foundation points out, recent Supreme Court rulings suggest a jury should determine damages based only on what's justified for the single defendant--not for the broader purpose of "sending a message" to the general public.

As for what steps the defendant Thomas-Rasset will take next, she could move to settle the case; she could ask the judge to reduce the penalty; or she could file an appeal based on the constitutional concerns. Unlike those found guilty of copyright infringement in the past when the law prevented a copyright infringeement defendant from discharging an award in bankruptcy court, Thomas-Rasset can use the bankruptcy courts to avoid having to pay the full cost. Last year, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court. For more, see CNET's article Bankruptcy Could Protect Jammie Thomas.

Saturday, June 20, 2009

CALI Conference for Law School Computing

Brooklyn Law School was well represented at the 19th Annual Conference for Law School Computing sponsored by CALI at the University of Colorado Law School, Boulder CO. BLS Library Director Victoria Szymczak and three of the BLS reference librarians, together with three of the IT professional staff, were in attendance at the conference. The sessions were designed to help librarians, IT professionals and law faculty better serve their objective of providing quality legal education using the latest technology tools. For the first time this year, all the sessions are webcast live. With the use of the open source web meeting software Dimdim, each session had a live video feed and chat room.

The conference ran from Thursday, June 18, through Saturday, June 20. The links for all the conference session webcasts are available on the conference program website. Some sessions which may be of particular interest to readers of this blog include:

Tuesday, June 16, 2009

Map of Disputes Between WTO Members

The Library of Congress Law Library has posted on its blog an entry about the World Trade Organization with a hyperlinked map of disputes between its members. The site has hyperlinks that allow users to access the dispute documents filed by the contending parties with the WTO. There are other links that show a chronological listing of dispute cases, another link to tables that show the disputes by country and by subject.

There is an additonal link that shows the adopted panel reports under the General Agreement on Tariffs and Trade (GATT) disputes that pre-date the WTO. The site also links to Stanford University’s GATT Digital Library that gives access to documents and information about GATT from 1947-1994. Particularly useful is the resource page with bibliographies, research guides, and web sites of interest to GATT Digital Library users and researchers.

The graphical feature showing the map of disputes is a useful tool for readers who respond to visual learning. Choosing to see the participation of the United States, for example, in the WTO dispute process shows that it has been a complainant in 73 cases and a respondent in 106 cases.

Monday, June 15, 2009

Judge Permits Torture Suit

A NY Times article, Judge Allows Civil Lawsuit Over Claims of Torture, reports that Judge Jeffrey S. White, of the US District Court for the Northern District of California, has issued a 42 page opinion permitting a law suit on torture. The judge denied a motion to dismiss Jose Padilla's lawsuit against former Justice Department lawyer John C. Yoo who wrote memos on interrogation, detention and presidential powers for the department's Office of Legal Counsel from 2001 to 2003. The ruling states that the convicted terrorist can sue the Bush administration lawyer for drafting the legal theories that led to his alleged torture. The order is the first instance where a Bush administration lawyer has been held potentially liable for the abuse of detainees.

Padilla, a 38 year old Brooklyn born convert to Islam, is serving a 17-year sentence on terrorism charges who has claimed that he was tortured while being held nearly four years as a suspect.

Links to the Complaint was filed in the Northern District of California in January 2008 (Docket No. 08-cv-00035) are available on PACER and the Justia Federal Documents website. Judge White’s Order-Granting-in-part-and-Denying-in-Part-Defendents-Motion-to-Dismiss is available on the Scribd a website where more than 60 million people each month share original writings and documents.

Saturday, June 13, 2009

LibGuides: the Future of Research Guides?

This year, the BLS Library subscribed to LibGuides, a platform for creating research guides from Springshare. The Library now has a growing list of research guides that students and faculty can use in their research. BLS LibGuides are available at The list of LibGuides include an Administrative Law Research Guide, a Treaty Research Guide, a New York Civil Practice: Selected Resources, a LibGuide on Researching Statutes and one for New Jersey Legal Resources. The platform is another example of web 2.0. Students and faculty are encouraged to create a LibGuide account and post their own research guides for the benefit of other library patrons.

Putting together a research guide with LibGuides is easy as it relies on Microsoft Word which is familiar to most library patrons. An individual guide consists of multiple boxes of content, such as text or database links, a catalog search box, RSS feeds, embedded videos and more. These boxes of content can be shared across different guides. This feature allows users to import content into other research guides. While creating content on the LibGuides platform requires some time investment , the updating of those guides is faster than traditional formats like paper or regular HTML guides. The biggest benefit is that LibGuides are easily shared with other researchers.

As for the correct pronunciation of “LibGuides”, Springshare, in its LibGuides F.A.Q, states that the product is pronounced “Lib” as in “liberation”.

Wednesday, June 10, 2009

Judicial Elections and Disqualification

This week, the US Supreme Court issued a major decision in Caperton v. Massey, setting a new standard for ruling on motions for the recusal or disqualification of a judge from a pending case, particularly when a judge may have benefited from campaign contributions from one of the parties. The facts in the case, according to a Wall Street Journal article titled Justices Set New Standard for Recusals, read like a John Grisham novel. The parties were the plaintiff, Hugh Caperton and his small, independent Harman Mining Co. and the defendant, Massey Energy, the country’s fourth largest coal company, and its CEO, Don Blankenship. At trial before a West Virginia jury, Massey lost a $50 million verdict in a fraud lawsuit brought by Caperton which Massey then appealed to the West Virginia Supreme Court. As the case moved through the appeals process, Blankenship contributed $3 million to Charleston lawyer Brent Benjamin’s election campaign against the incumbent Supreme Court Judge Warren McGraw. This amounted to 60 percent of Benjamin campaign contributions. Benjamin won the election. Three years later, when Massey’s appeal reached the West Virginia Supreme Court, Benjamin cast a crucial vote overturning the $50 million verdict. After repeated denials of motions that Judge Benjamin recuse himself, the case came to the Supreme Court where for the first time it set a standard for disqualifications arising from the money that judges receive in their campaigns for election to the bench. In a fact-driven decision, the Justice Kennedy, writing for the majority, reasoned that, as an objective matter, the Due Process Clause requires recusal by a judge where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutional.” The dissent by Chief Justice Roberts lamented that the majority "the standard the majority articulates—"probability of bias"—fails to provide clear, workable guidance for future cases".

Aside from the question of how judicial bias is measured, Caperton spotlights the larger question of whether choosing judges by popular vote is sound policy. In recent times, judicial elections have become high profile, big money political events much different from the quiet, low key affairs of earlier times. Choosing judges by popular vote on its face seems like an exercise in democracy but in practice judicial elections call out for reforms to rein in out-of-control judicial campaigns and to prevent litigants from buying judges through campaign contributions to cast votes in their favor. Imagine filling the current US Supreme Court vacancy by judicial election rather than appointment and Senate confirmation.

The BLS Library has in its collection some worthwhile material on the subject of disqualification of judges including an electronic resource entitled Fair Courts: Setting Recusal Standards by James Sample, et al., Call #KF8861 .S26 2008 (INTERNET) published by the Brennan Center for Justice at New York University School of Law, the legal team that represented the plaintiff in Caperton v.Massey. See also Judicial Disqualification: Recusal and Disqualification of Judges by Richard E. Flamm (Call # KF8861 .F53 2007).

Monday, June 8, 2009

Copyright Infringement and Zotero

For those who may have missed it, last fall George Mason University’s Zotero project prompted allegations of copyright infringement. Thomson Reuters, makers of the commercial reference management application EndNote , brought the lawsuit in a Virginia state court accusing GMU of violating itssite license to the EndNote software. Open source advocates are cheering the dismissal of the suit as a major victory. For more detailed information, see the Ars Technica article entitled "EndNote maker's lawsuit over open-source Zotero dismissed".

For those unfamiliar with Zotero, a free, easy-to-use Firefox extension designed to help researchers collect, manage, and cite research sources, a video explaining how Zotero works is here.