Legislative History Help from LLSDC

Researchers at Brooklyn Law School can benefit from the very useful Legislative Source Book published by the Law Librarians' Society of Washington, D.C. (LLSDC) which recently added a webpage on Federal Equal Employment Opportunity Laws, Cases and Resources. The page links to Federal EEO laws, a number of related CRS reports, Federal agency resources, non-governmental resources, and US court opinions.

The Source Book has other links that will help researchers including a multi-part Federal Legislative History Research: A Practitioner's Guide to Compiling the Documents and Sifting for Legislative Intent. The guide explains what Federal legislative histories are and how they are used, discusses the Federal legislative process and legislative history documents, directs researchers on finding already compiled Federal legislative histories, explains the process of compiling a Federal legislative history in paper format and electronically and from older records. There is also a section on sifting for legislative intent language in a Federal legislative history as well as links to other Federal legislative history web sites. Another valuable resource in the LLSDC Source Book is Legislative Histories of Selected U.S. Laws on the Internet which organizes its material by Popular Name Listing, Public Law Number Listing, and Commercial Legislative Histories on the Internet (those of Westlaw, LexisNexis and HeinOnline).

The BLS Library has in its collection Reference Librarian Joseph Gerken’s book What Good is Legislative History? Justice Scalia in the Federal Courts of Appeals (Call #KF425 .G47 2007). Justice Scalia is an outspoken critic of legislative history. The book analyzes more than 250 Circuit Court decisions that refer to Justice Scalia's criticism of legislative history. It covers Scalia's preference for textualism rather than relying on material he considers unreliable for interpreting laws. It has chapters on the history of legislative history and the evolution of the Supreme Court's attitude toward its use.

To help researchers looking for New York legislative history materials, the BLS Library catalog links to an electronic resource from the New York State Library called Legislative Intent in New York State: Materials, Cases and Annotated Bibliography by Robert Allan Carter (KFN5074 .C37 2001). The link leads to a page that was last updated on June 22, 2009 and has a New York State Legislative History Research Tutorial.

BLS Databases: EBSCOhost

The Brooklyn Law School Library database page has an alphabetical listing of dozens of databases with which many library patrons are unfamiliar. Most are law related although some are multi-disciplinary. The full range of databases available through EBSCOhost (a search system made accessible to the BLS community by subscription through the library) provides full text searches and abstracts of magazines, newspapers and reference books in a variety of subject areas, updated on a daily basis.

Included in the range of EBSCO products are these databases briefly described by content.

• Academic Search Premier
"The world's largest scholarly, multi-disciplinary full textdatabase" includes indexing and abstracts for additional periodicals.

• Business Source Premier
  The industry's most popular business research database features the full text for more than 2,150 journals. Full text is provided back to 1886, and searchable cited references back to 1998.
• ERIC
  The world's largest source of education information, it contains more than 950,000 abstracts of documents and journal articles on education research and practice.
• Funk & Wagnalls New World Encyclopedia
  The multidisciplinary encyclopedia offers more than 25,000 articles on a wide variety of topics. This source provides full text for all articles.
• Health Source: Nursing/Academic Edition
  This database has full text articles from academic and/or professional sources and provides 600 scholarly full text journals, including more than 450 peer-reviewed journals focusing on many medical disciplines. Also featured are abstracts and indexing for more than 850 journals, covering nursing and allied health.
• MasterFILE Premier
  This database covers diverse topics including general information, business issues, health and multicultural materials. It includes an image collection with photos of people, places, natural science photos, historical photos, maps, and flags.
• MEDLINE
  The world's most comprehensive source of full text for medical journals, MEDLINE provides full text for more than 1,470 journals.
• Newspaper Source
  This source provides cover-to-cover full text for 185 national (U.S.) and international newspapers, including Christian Science Monitor, USA Today, The Washington Post, The Washington Times, The Times (London), Toronto Star, and others.
• The Philosophers Index
  This database provides indexing and abstracts of "scholarly research published in journals and books, including contributions to anthologies and book reviews. It contains research published since 1940 including nearly 570 journals from 43 countries with content representing a variety of languages".
• Professional Development Collection
  This collection includes full text for the Chronicle of Higher Education, Educational Leadership, Journal of Education, Journal of Higher Education, Theory Into Practice, and nearly 520 high quality education journals.
• Regional Business News
  The source provides full text for more than 80 regional US and Canadian business publications (including titles from Crain Communications).
• The Serials Directory
  This database contains nearly 212,000 U.S. and international titles, including newspapers; data from nearly 108,235 publishers worldwide, including e-mail and Internet addresses.

EBSCOhost has created these tutorials to help make searching the databases easier:

• Basic Search
  A concise guide to the most popular EBSCOhost features. (3.4 minutes)
• Advanced Search
  Learn about Advanced Search features, from limiters and expanders, the ability to save searches, set up Search and Journal Alerts, search Publications and browse Indexes, to how to manage search results in your personalized My EBSCOhost folder. (4 minutes)
• Create Search and Journal Alerts
  Search and Journal Alerts save valuable research time, and can be set up to provide automatic notification to any email address(es) you specify, whenever new results become available. (3 minutes)

Animal Rights in the News

Earlier this month, NY State Supreme Court Justice Marilyn Shafer upheld Local Law 26 for the year 2000 which mandates the existence of full-service animal shelters in all five New York City boroughs. In January 2009, the nonprofit group Stray from the Heart sued the City, alleging that its failure to set up animal shelters in the Bronx and Queens resulted in the “needless suffering and death of homeless cats and dogs.” The complaint charged: “Homeless dogs have been dying in unconscionable numbers because the Department of Health and Mental Hygiene has not provided the shelter space required by statute.” Judge Shafer's Order gave the City 60 days to come up with a plan to implement the law.

The blog of the Committee on Animals and the Law of the New York State Bar Association says that Judge Shafer found that the City violated the Animal Shelters and Sterilization Act, NYC CODE § 17-801 and ordered New York City to submit a plan to open animal shelters in all five boroughs and keep those shelters open 24 hours a day, seven days per week to receive and permit the adoption of dogs and cats. Pursuant to the Act, the City was required, but failed to ensure that a full-service animal shelter was maintained in all five boroughs on a 24 hours a day, 7 days a week basis. The City of New York plans to appeal the court’s decision.

The New York State Bar Association's Committee on Animals and the Law, last month, awarded its second-place award to Andra Waniek (Brooklyn Law School Class of 2009). Her paper, "Protecting Woman's Best Friend from Family Violence: Proposal for a Model Statute Including Animals in Protective Orders", addressed legislation concerning inclusion of animals in protective orders. Waniek proposed a federal statute authorizing the inclusion of animals in protective orders that combines and modifies components of several proposed and enacted state statutes and adds a new provision to account for the housing of animals during their owners' stay at domestic violence shelters. Waniek , who was an Articles Editor at the Brooklyn Law Review during the 2008-2009 academic year, received $500 for her essay.

On the subject of animal rights, the BLS Library has added to its collection a number of interesting items. See Animals as Persons: Essays on the Abolition of Animal Exploitation by Gary L. Francione (Call # K3620 .F73 2008) the chapters of which include: Introduction: the abolition of animal use versus the regulation of animal treatment -- Animals: property or persons? -- Reflections on Animals, property, and the law and Rain without thunder -- The use of nonhuman animals in biomedical research: necessity and justification -- Ecofeminism and animal rights: a review of Beyond animal rights: a feminist caring ethic for the treatment of animals.

See also Drawing the Line: Science and the Case for Animal Rights by Steven M. Wise (Call # HV4708 .W566 2003).

First Monday in October

On October 5, the first Monday in October 2009, the US Supreme Court is scheduled to begin its new term. To mark the occasion, the first of the Library Wednesday Workshop Lunch & Learn sessions at Brooklyn Law School, “The New Term of the U.S. Supreme Court and How to Research the Court”, will take place on Wednesday, September 30.

The ABA web site has a Preview of the Court cases for the upcoming 2009-2010 term with not only an alphabetical listing of the nearly 50 cases that the Court will review but also an argument date menu and links to the Question Presented in each case along with the Merit Briefs and Amicus Briefs. The Questions Presented in the cases scheduled for argument in October run a wide range of issues that when decided will significantly change the practice of criminal law, immigration law, copyright law, labor law, attorney-client privilege and practice regarding attorney’s fees.

One case worth watching is Alvarez v. Smith, a challenge to Illinois' Drug Asset Forfeiture Procedure Act (DAFPA). The issue in Alvarez concerns the seizure of the petitioners’ property by police who suspected that the property had been involved in a drug crime. Three of the petitioners had their cars seized, three had cash taken. None were served with a warrant or charged with the crime. Under DAFPA, the State can delay for up to six months before an aggrieved property owner can obtain a preliminary hearing on warrantless seizures of less than $20,000.

Civil asset forfeiture is one of most potent weapons used by law enforcement in the war on drugs. It allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, providing a strong incentive to seize as much property as often as possible.

At the federal level, in order to "provide a more just and uniform procedure for Federal civil forfeitures", Congress in 2000 passed the Civil Asset Forfeiture Reform Act (CAFRA) which changed the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay, and provided for compensation for attorney's fees for defendants who won in court. CAFRA reforms applied only to federal law, not to the states. llinois' DAFPA law allows the state to use hearsay evidence and sets the state's evidentiary burden at probable cause. Property owners who want to use the "innocent owner" defense are not permitted to use hearsay, and are held to a "preponderance of the evidence" standard. They are also required to post a bond on the seized property in order to get a hearing.

The 14th Amendment's Due Process clause says that a State may not "deprive any person of life, liberty, or property, without due process of law." How the US Supreme Court will apply the 14th Amendment to Illinois’ DAFPA provision is uncertain. A post written on the noted law blog, the Volokh Conspiracy, stated "The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence."

On the subject of forfeiture, the BLS Library recently added to its collection Asset Forfeiture: Practice and Procedure in State and Federal Courts by Dee R. Edgeworth (Call #KF9747 .E34 2008) with chapters Forfeiture terminology – Property subject to forfeiture – Seizure of property for civil forfeiture – Initiation of civil forfeiture proceedings – Civil pre-trial motions – Civil discovery – Civil trial proceedings – Criminal forfeiture proceedings – Parallel proceedings –Disposition of forfeited property – Real property forfeitures – Constitutional protections – Ethical considerations.

President Leonel Fernández Addresses BLS

In New York to attend the UN General Assembly, Dominican Republic President Leonel Fernández spoke at Brooklyn Law School to discuss constitutional reform measures he is introducing in his country. Library Director Victoria Szymczak hosted President Fernandez and his wife, First Lady Margarita Cedeño de Fernández in the Moot Court Room where Dean Joan G. Wexler introduced the President to speak about how he is preparing the Caribbean nation to meet the challenges of the 21st century. Dean Wexler told the assembled guests about Fernández’ being born in Santo Domingo and having moved to the US to spend his childhood in Washington Heights. The Dean went on to explain that Fernández started his Law Studies in the Universidad Autonoma de Santo Domingo where he graduated at the top of his class and that he became active in the Dominican Liberation Party in 1973. She also spoke about his first presidential term from 1996 to 2000 after which he was unable to run for a second term, as the constitution did not allow it. After a change in the constitution, Fernández was sworn in for a second term in 2004 and was re-elected to another term in 2008.

President Fernández spoke about the independence movement in Latin America, which took place about 200 years ago in 1809 when most Latin American countries became free from Spanish rule. He noted that the DR declared its independence from Haiti in 1844. Citing a novel titled The Feast of the Goat by Peruvian writer Mario Vargas Llosa about dictator Rafael Trujillo, Fernández spoke about the military dictatorship from the 1930s until Trujillo’s assassination in 1961. He also spoke about the 1963 democratically elected government of Juan Bosch which ended with the 1965 US invasion which President Lyndon B. Johnson justified based on fears that the DR was turning into "a second Cuba”. Except for the period of authoritarian rule under Joaquin Balaguer until 1978, he said, the DR has moved toward representative democracy.

Fernández’ address about the DR’s new constitution, which has been ongoing for the past several months, stressed his view that it was a continuation of a liberal social democratic tradition that has been growing since the end of the dictatorships. He stated that the process included public consultation and that its content came from the bottom up rather than from the top down. In the Q&A after the President’s remarks, BLS students questioned key provisions of the new constitution, notably Article 30 of the constitution which would introduce the inviolability of life from “conception to death” and thus outlaw a woman's choice of abortion even in cases of rape, incest or a threat to her life. Fernández stated that this clause was the result of the country’s large Roman Catholic population. Another questioner raised the issue of the new constitution’s impact on Haitians living in the DR and their ability to become Dominican citizens. Fernández said that the widely-held view that Dominicans exploit Haitian workers was unjustified as Haitians emigrate to the DR for a better life and are likely to have lower standards of living than native Dominicans just as Dominicans who emigrate to New York have compared to native New Yorkers. Fernández remarked that it appeared that BLS students were well informed on the the issues that he addressed.

Three Strikes and the Internet is Out

A Jurist posting last week reports that the French National Assembly (the lower house) approved a new version of a controversial three strikes Internet piracy law on downloading copyrighted material. The law would grant discretion to a judge to suspend a user's Internet services for up to one year. The determination to suspend access would be made on an infringer's third violation, after previously receiving two warnings. In addition to internet disconnection, the law imposes fines of hundreds of thousands of euros and even jail for repeat offenders. Consumers could be sanctioned for negligence for any illegal downloading unauthorized users conduct through their Internet accounts.

France is not alone in seeking to disconnect file-sharers. Last month, an agency of the UK government, introduced proposals “for adding suspension of accounts into the list of measures that could be imposed” for those who persistently share copyrighted material online. IMPALA, the Independent Music Companies Association, in a Memorandum to its members counts Ireland, Norway, Spain, New Zealand, Japan and possibly the US as countries where internet service providers have or will cooperate in a three-strike disconnection system to combat online piracy.

On the international level, the Office of the US Trade Representative (USTR) and 37 other countries are negotiating the Anti-Counterfeiting Trade Agreement (ACTA), a new worldwide trade agreement that aims to reduce counterfeiting and copyright infringement. Despite Freedom of Information Act requests and a lawsuit from the Electronic Frontier Foundation, details about ACTA remain scant. The American Association of Law Libraries (AALL), along with others, has expressed concern about the “Internet provisions” of ACTA. In a July 14, 2009 letter, AALL wrote “Based on negotiating documents that have become public – but not made available by the U.S. government – we have good reason to believe that the ACTA negotiations could harm a significant portion of the economy as well as consumer interests.” An earlier September 18, 2008 memo from AALL expressed concerns that ACTA provisions may have significant implications for U.S. law including the “best practices” idea of encouraging government-led discussions on a “graduated response” three strikes approach to termination of repeat infringers.

There have been five rounds of negotiation on ACTA, most recently in France in December. A press statement from the fifth round in Morocco announced “that the next round will be hosted by the Republic of Korea in November 2009. With regard to the progress of negotiations, participants confirmed their intention to conclude the agreement as soon as possible in 2010.”

On the subject of copyright infringement, the Law Librarian Blog links to RiP! A Remix Manifesto, Brett Gaylor's 90 minute documentary that explores "issues of copyright in the information age, mashing up the media landscape of the 20th century and shattering the wall between users and producers." The video is worth watching for those interested in the legal grey area of remixing existing works and the concept of copyleft as opposed to copyright. It will also appeal to those who like to listen to some outrageous music.

Corporate Personhood

This week’s commentary on questioning by Justice Sonia Sotomayor in oral argument in the Citizens United v. FEC case concerns corporate personhood, one of the basic foundations of modern corporate law. See Jess Bravin’s article, Sotomayor Issues Challenge to a Century of Corporate Law. On page 33 of the oral argument transcript of the case (well worth reading in full), Justice Sotomayor questioned Floyd Abrams, Esq., counsel for Senator Mitch McConnell, as amicus curiae, in support of the Appellant Citizens United, on the issue of stare decisis:

And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

Page 4 of the transcript has an interesting exchange between Theodore B. Olson, Esq., counsel for the Appellant and Justice Ruth Ginsburg:

Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual? A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?

Stephen Bainbridge, Professor of Law at UCLA, in a posting at ProfessorBainbridge.com examines at greater length the idea of corporate personhood. The utility of this legal fiction, he points out, helps provide legal protection for shareholders engaged in a common venture where their contract rights are protected by allowing the corporation to sue and be sued in its own name and to own and deal in property in its own name.

Contractual rights afforded to corporations are arguably different than rights of free speech under the First Amendment. Laws prohibiting corporations specifically from directly contributing to political parties and election committees have been in place since the Tillman Act of 1907 (Pub. L. 59-36, 34 Stat. 864), the first law specifically addressing campaign funding on the federal level. That legislation, codified at 2 U.S. Code § 441b makes it "unlawful for any national bank, or any corporation…to make a contribution or expenditure in connection" with a federal election. Currently 24 states, including New York, have some restrictions or bans on corporate spending in elections. NY Elec. Law § 14-116 prohibits contributions or expenditures by corporations in excess of $5,000 although there is an exception for corporations organized "for political purposes only".

For more arguments of the issue of the range of rights afforded to corporations, see the video with transcript of Trevor Potter of the Campaign Legal Center and former chairman of the FEC, and Floyd Abrams, from Bill Moyer’s Journal. On the broader issue of corporate personhood, the Law Librarian Blog posted Friday Fun: Colbert on Citizens United v. FEC that has a video from the Colbert Report asking whether the issue is one of political speech or corporations buying elections.

The Brooklyn Law School Library’s collection has Unequal Protection: The Rise of Corporate Dominance and the Theft f Human Rights by Thom Hartmann (Call # HD3616.U46 H37 2002) which addresses the concept of corporate personhood from its origins in the US Supreme Court case, Santa Clara County v. Southern Pac. R. Co.(1886).

That case is often cited for the principle that the term person as used in the Equal Protection Clause of the Fourteenth Amendment applies to corporations as well as to natural persons. One of the points in the briefs in Santa Clara was that “Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” Before oral argument, Chief Justice Morrison R. Waite announced "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

The court reporter, J.C. Bancroft Davis, entered a summary of the Court’s findings in the syllabus and case history above the opinion stating “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.” This language was not in the opinion itself. The opinion was reported in three separate reporters: the United States Reports, (118 U.S. 394), the Supreme Court Reporter (6 S. Ct. 1132) and the U.S. Supreme Court Reports Lawyers’ Edition (30 Law. Ed. 118). Only the US Reports edition contains Davis’ summary.