Episode 055 - Conversation with BLS Professor Jonathan Askin

Episode 055 - Conversation with BLS Professor Jonathan Askin.mp3

This podcast features Brooklyn Law School Associate Professor Jonathan Askin who talks about the legal work performed by the Brooklyn Law Incubator and Policy Clinic (BLIP) which Professor Askin began in 2008. In this conversation, he discusses the recent news that the Entertainment Consumers Association (ECA) has drafted BLIP as a contributor to its amicus brief to be submitted to the Supreme Court in the case of Schwarzenegger v EMA. Students from the Clinic will work with ECA and the law firm of Hughes Hubbard & Reed LLP on the brief for the case which the Supreme Court will consider in the fall term.

Professor Askin was recently quoted as saying “It is important to ensure that the rights of both the producers and consumers of video games are guaranteed in this modern day challenge to the First Amendment. We relish this opportunity to help create the best legal understanding at the intersection of law and emerging technology.” In the podcast, he also talks about other types of matters where the Clinic has helped new entrepreneurs.

Libraries at Risk

An article entitled Libraries Reach FY2011—Some Relieved, All Wary in American Libraries, the online magazine of the American Library Association News, reports on recent funding activity for New York area public libraries. To summarize:

• The New York Public Library staff members averted a catastrophic $37-million budget cut. The NYPL web page says that 130,000 people wrote letters and made phone calls toprotest. The library also received $144,000 in online donations. All of this will allow the library to stay open at least five days a week.
• Queens Library's web page gave public thanks to elected officials and supporters alike for restoring $17 million to the budget, thus “making libraries a priority, for ensuring every one of our libraries remains open an average of five days a week.” This means that its 62 libraries will remain open and that it can maintain an average service schedule of five days a week.
• Brooklyn Public Library still maintains its Keep Your Library OPEN web site in order to avert closure of 16 libraries, severely limited weekend hours, layoffs of hundreds of library staff members and cuts in library materials, free programs and free public computer sessions. Brooklyn Public also had funding restored as noted on its webpage thanking supporters.
• The New Jersey Library Association praised the budget agreement between Gov. Chris Christie and the legislature restoring $4.299 million restored for library programs.

Researchers at Brooklyn Law School look to many of the print and electronic resources available at the BLS Library. They also look beyond the law library to public libraries for non-legal materials. To imagine life without public libraries, read Jonathan Stock's article Chambers of the Sea: Who Needs Law Libraries? It's All Free on the Internet in the July 2010 issue of AALL Spectrum. Stock wrote the article as an allegory after his efforts to help save many of the court law libraries in Connecticut from possible oblivion.

Debt Collection Litigation

The Federal Trade Commission’s recent report, Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration, saying that many consumers face debt collection lawsuits for unpaid bills even though there is scant proof against them, calls for tougher state and federal laws to protect the public. The report also called for safeguards to ensure that consumers do not first learn they have been sued only after a judgment has been recorded against them. The proposed reforms include requiring collection lawsuits to provide crucial information about the alleged debt, including a breakdown of the total amount owed by principle, interest and fees.

In the current economic downturn, consumer debt collection cases have flooded civil court dockets around the country, according to a NY Times article Automated Debt-Collection Lawsuits Engulf Courts. The article cites the Woodbury, NY law firm of Cohen & Slamowitz as filing some 80,000 lawsuits a year. The firm filed 59,708 cases in 2005, 83,665 in 2006, 87,877 in 2007 and 80,873 in 2008. One of the partners, David A. Cohen is a member of Brooklyn Law School’s Class of 1979. The firm’s 14 lawyers averaged more than 5,700 cases per lawyer because of computer software to help prepare its cases. With debtors selling their uncollectible debt to debt buyers at discounted rates and debt buyers facing non-payment from debtors, the increase in filings is straining the court system. The article states that “Collection law firms are able to handle such large volumes of cases because computer software automates much of their work. Typically, a debt buyer sends a law firm an electronic database that contains various data about consumers, including name, home address, the outstanding balance, the date of default and whether interest is still accruing on the account.”

The article tells of a civil court hearing in Brooklyn in which BLS alum Judge Noach Dear (Class of 1992) demanded documents from Cohen & Slamowitz to support its claim that the defendant owed $3,797.27 in credit card debt. When the firm’s lawyer responded that the only documentation was the Social Security number, date of birth and address, Judge Dear dismissed the case and issued an order requiring, among other things, that Cohen & Slamowitz provide further proof of a debt if a defendant challenged the firm’s claim.

The Brooklyn Law School Library has in its collection several items on the subject of debt collection including Collection Actions: Defending Consumers and Their Assets by Jonathan Sheldon (Call #KF1024 .S54 2008). The item record has a link to the online version of the consumer law manuals companion website. The National Consumer Law Center site has a large number of forms in PDF format including Statutes/Regulations, Federal Agency Interpretations and Pleadings.

Bastille Day 2010

On the eve of Bastille Day and the 220th anniversary of la Fête de la Fédération, the 557-seat French National Assembly adopted a bill prohibiting the concealment of the face in public. The bill does not single out Muslims, but it is seen as a way to combat religious extremism. The proposal would fine women the equivalent of $185 for wearing the veil in public or make them do community service. Those who oppress women and make them wear the veil could face a fine of up to $38,000 or up to one year in prison - double if the woman is a minor.

While the vote was nearly unanimous (335 to 1), the proposal has opposition as 241 members abstained, mostly the opposition Socialist, Communist and Green parties, who oppose women wearing the full veil, but do not see legislation as a solution. Last year, some members of parliament called for a commission to investigate whether the veil undermined French values. The bill moves to the French Senate where it is expected to have no opposition when it hold its vote in September. Once signed by President Nicolas Sarkozy, the ban would take effect next spring. Last year, Sarkozy said that the burka was "not welcome" in France and that it was "not a sign of religion but a sign of subservience." The comments provoked a public reaction that showed widespread support for a ban on both the burka, an enveloping outer garment, and the niqab, or face covering. Muslim groups, however, complained that such a ban would stigmatize all members of their religion.

The bill, available at the French National Assembly website, reads in part:

No person may, in public, wear clothing designed to conceal his face.
Public space is made up of public roads and places open to the public or engaged in a public service.
The prohibition does not apply if the conduct is required or permitted by law or regulation, whether it is justified by reasons of health or professional reasons , or if it is part of sporting activities , festivals or artistic or traditional.
The failure of anyone to impose one or more other persons to conceal their faces by threat, violence, coercion, abuse of authority or abuse of power, because of their sex, is punishable by imprisonment for one year and €30,000 fine. Where the act is committed against a minor, the penalty is increased to two years imprisonment and a €60,000 fine.

The ban has strong public support but critics, according to an Al Arabiya report, say the law exploits a non-problem (only about 1,900 women among France's five to six million Muslims wear a veil) in a bid to pander to anti-immigration voters and to distract attention from France's economic woes. With questions on the ban's constitutionality, the ruling Union for a Popular Movement party has agreed to send the eventual final version of the legislation to the Constitutional Council watchdog. A further challenge could occur from the European Court of Human Rights in Strasbourg, France. Amnesty International has said the law "violates rights to freedom of expression and religion."

The French National Assembly vote could set a precedent for other European countries. Earlier this year, the Belgian lower house voted 136-0 to approve a bill that would ban the burqa and other full face veils in public. Britain and Spain are considering similar legislation as is the European Parliament. See the report in Jurist for other jurisdictions currently debating legislation to ban the burqa. Support for such a ban is far higher in Europe than in the US, where 28% of the public would approve it, according to a Pew Global Attitudes Project poll, compared with 82% in France and 62% in Britain. A Europe-wide trend reacting to the growing Islamic presence resulted in the Swiss electorate voting to outlaw minarets last year.

Computer Fraud and Abuse Act

The US Attorney in Newark, NJ has charged the operators of Wiseguy Tickets Inc., a ticket reselling service, with one count of conspiracy, numerous counts of wire fraud (18 U.S.C. §1343), additional counts of obtaining information from a protected computer and other counts of accessing a protected computer with intent to defraud in violation of the Computer Fraud and Abuse Act of 1986 (18 U.S.C. §1030). In the indictment, the government claims the defendants purchased tickets from Ticketmaster by automated means, violating Ticketmaster's terms of service and therefore the Computer Fraud and Abuse Act (CFAA).The defendants, who were able to beat computer security with the use of CAPTCHA bots, bought and scalped 1.5 million seats for events such as Bruce Springsteen concerts.

They have now asked US District Court Judge Katherine S. Hayden to dismiss the charges which they claim turn lawful activity into crimes. Prosecutors claim that after buying tickets on a first-come, first-saved basis through Ticketmaster, Live Nation Entertainment Inc., Telecharge and other vendors, the defendants resold them making more than $28.9 million in profit from 2005 to 2008. In their Memorandum of Law in support of the Motion to Dismiss, lawyers for defendants called the indictment “a naked effort to punish legal conduct under federal law -- the resale of tickets for events -- by using the Computer Fraud and Abuse Act (‘CFAA’), a statute that has nothing to do with so-called ‘ticket scalping’”.

The Electronic Frontier Foundation (EFF) has filed an amicus brief in the case arguing that the prosecution in this case expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service that websites decide to impose on users. "Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges," said EFF Civil Liberties Director Jennifer Granick. "That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails."

Bloomberg reporter David Voreacos has more information on the case in his article ‘Wiseguys’ Ask U.S. Judge to Dismiss Scalping Charges. PC Mag.com's article Four Indicted in CAPTCHA Hacks of Ticket Sites, from earlier this year, gives more details on Wiseguy Tickets.

Justice Delayed

Ninety days have elapsed since Justice John Paul Stevens submitted his letter of resignation to the President on April 9, 2010. Thirty days later, on May 10, the President nominated Elena Kagan to fill the vacancy. An additional sixty days have passed and the seat remains vacant. How long does it take to fill a Supreme Court vacancy? A recent Congressional Research Service report, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, examines the nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action). It concluded that the process has generally taken almost twice as long for nominees after 1980 than for nominees in the previous 80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981 through 2009 (when the most recent Supreme Court appointment was completed), the process took a median of 111.5 days.

A Wall Street Journal article, Supreme Court Nomination Timelines, which has a timeline of the confirmation process for the current court, says that Justice Clarence Thomas had the longest process from nomination to confirmation at 107 days, but his nomination was slowed by the harassment allegations of Anita Hill. John Paul Stevens had the swiftest process at just 19 days from his nomination to Senate confirmation.

Since 1980 Presidents have moved more quickly in announcing nominees after learning of vacancies (a median of 18 days compared with 34 days before 1980). But the Senate portion of the process (i.e., from the nomination announcement to final Senate action) now appears to take much longer than before (a median of 80.5 days from 1981 through 2009, compared with 17 days from 1900 through 1980). Most notably, the amount of time between the nomination announcement and first Judiciary Committee hearing has more than quadrupled--from a median of 12.5 days (1900-1980) to 50.5 days (1981-2009). The confirmation of Supreme Court Justice Sonia Sotomayor in 2009 illustrated the lengthier overall time frame for recent Supreme Court appointments. Forty-eight days elapsed between President Barack Obama's announcement of Sotomayor's selection and the start of Judiciary Committee hearings on the nomination. The entire interval from the time at which the President apparently first learned of the vacancy until final Senate consideration lasted 97 days.

Now that the Senate Judiciary Committee has held its hearings on the Kagan nomination, it is expected to vote in favor of her nomination when the Senate returns from its recess on July 12. When the Committee forwards the nomination to the Senate for an eventual confirmation vote, perhaps by August 6, the last day before the Senate takes its month-long August recess break, the process for the Kagan nomination will have lasted close to 120 days.

For further reading on the history of the appointment process for the Supreme Court, the Brooklyn Law School Library has in its collection Justices, Presidents, and Senators: a History of the U.S. Supreme Court Appointments from Washington to Bush II by Henry J. Abraham (Call #KF8742 .A72 2008), a history of the 110 members of the Court. Justice Sotomayor is the 111th Justice on the Court. If confirmed, Elena Kagan will be the 112th Justice.

Bar Exam Study Aids

With three weeks before the July bar exam, patrons at the Brooklyn Law School library can review additional study resources in the collection. , A subject search for “Bar examinations—United States—Study guides” in the online catalog will retrieve some helpful resources for bar exam study on reserve at the circulation desk such as the 2009 edition of The Bar Exam in a Nutshell by Suzanne Darrow-Kleinhaus (Call # KF303 .D37 2009). Also on reserve is Pass the Bar by Denise Riebe and Michael Hunter Schwartz (Call # KF303 .R54 2006).


The library's main collection has Scoring High on Bar Exam Essays by Mary Campbell Gallagher (Call # KF303 .G35 2006). There is also a 50 minute streaming video produced in 2008 that is accessible from the BLS Library catalog called Pass the Bar: We Did, You Can Too!


Past exams are available for free on bar exam websites, such as New York’s page of Past Exam Questions. Visit the National Conference of Bar Examiners lists the Boards of Law Examiners site for all of the states for those taking bar exams outside New York.