Impact of Law School Scholarly Research

Brooklyn Law School’s scholarly journals show increasing strength ranking 7th in a recent analysis comparing the scholarly output in selected journals of all ABA-accredited law schools ranked below the 50th spot in the U.S. News & World Report 2013 Rankings. See Per Capita Productivity of Articles in Top Journals, 1993-2012: Law Schools outside the U.S. News Top 50. Brian Leiter’s Top 70 Law Faculties in Scholarly Impact, 2007-2011 published in July 2012 places Brooklyn Law School at number 41 of the top 70 law faculties with the highest scholarly impact.

Recent scholarship includes an article which Brooklyn Law School Professor Brad Borden and three BLS alumni, Ethan Blinder, Class of 2013, Joseph Binder, Class of 2013, and Louis Incatasciato, Class of 2012, co-authored.  Scheduled for publication in the forthcoming issue of volume 7 of the Brooklyn Journal of Corporate, Financial & Commercial Law, the article, A Model for Measuring the Expected Value of Assuming a Greater Share of a Tax Partnership's Liabilities, for which the abstract reads:

To a very large extent, tax law drives the choice property and business owners make regarding the entity they use for ownership and operation of their enterprises. At an ever-increasing rate, property and business owners choose to operate their enterprises with entities that are subject to partnership taxation (i.e., limited liability companies, limited partnerships, and limited liability partnerships). Once in the realm of partnership taxation, those same parties face numerous decisions that require them to balance tax, state-law, and other economic considerations. This Article presents a situation in which members of tax partnerships would have to balance those considerations to make an informed decision. The Article illustrates that the use of expected cost estimates can help a member of a tax partnership decide whether taking a current flow-through deduction from the tax partnership warrants the member assuming a larger share of the tax partnership’s liability. In presenting the model that can assist with such a decision, the Article opens the possibility of analyzing other vexing decisions that the confluence of partnership taxation and state law presents to members of tax partnerships. Although such decisions are often vexing, the Article illustrates that finding the proper tools to assist with the decision-making process enhances the value of forming an entity that qualifies for partnership taxation.

Faculty and Student Partners on Real Estate Finance Blog

Brooklyn Law School Professors Brad Borden and David Reiss have launched REFinblog, a cooperative effort between the two faculty members and Brooklyn Law School students. The new blog focuses on tracking the latest law and practice developments in the field of real estate finance with insight, analysis and commentary on the latest news and cases in the real estate finance arena, with an emphasis on securitization. Currently focused on litigation arising from the 2008 financial crisis, it offers information about "upstream" litigation (lawsuits against underwriters, promoters, and other market actors), "downstream" litigation (bankruptcy and foreclosure cases brought by and against homeowners) as well as other timely information about related tax and regulatory actions.

Professors Borden and Reiss serve as editors and main contributors to the blog. Their most recent post is title Borden and Reiss on Dearth of Prosecutions for Mortgage Misrepresentations where they cite their recently published article Cleaning up the Financial Crisis of 2008: Prosecutorial Discretion or Prosecutorial Abdication? See 92 BNA Criminal Law Reporter 765. They also work with students at Brooklyn Law School and other blog authors to provide timely commentary on some of the most important real estate finance issue of the day. Student contributors include Abigail Pugliese, Gloria Liu, Jeffrey Lederman, Joseph Kelly, Justin Rothman, Karl Dowden, Max Feder, Michael Liptrot, Rachel Sherman, Rafe Serouya, and Robert Huberman.

Having students contribute to a profession industry publication is an example of how Brooklyn Law School is equipping students with real-world lawyering and business skills that they can use in practice after graduation. Professor Reiss, an expert on mortgage markets, ratings agencies, and housing issues, said "Our student authors have really risen to the occasion. They have taken their legal training and have applied it to this difficult area of law and public policy. As law schools seek to reinvent themselves for the 21st Century, it is exciting to be part of an effort that is clearly Law School 2.0."

Professor Borden, an authority on taxation of real property transactions, said "Our target audience is professionals who want more in-depth information than they can find in The Wall Street Journal, The New York Times, and The Financial Times – those who want truly expert commentary, with links to the source documents." REFinblog provides a well-needed service, sorting daily for relevant new cases, regulations, articles, and reports about real estate finance.

NYPD Stop and Frisk on Trial

The New York Law Journal’s recent article Challenge to Stop-and-Frisk Policy Begins before Scheindlin reported on the March 18th start of the US District Court for the Southern District of New York trial in Floyd v. City of New York. Judge Shira Scheindlin is being asked to determine whether the New York City Police Department (NYPD) has a pattern or practice of unconstitutional stops directed from the top down. The complaint alleges that the more than five million stops conducted by the NYPD violate the 4th and 14th Amendment rights of those targeted. On May 16, 2012, Judge Scheindlin issued an Order granting Plaintiffs' Class Certification Motion in the lawsuit filed against the NYPD and the City of New York. A 2012 NYCLU report provided a detailed picture of the NYPD’s stop and frisk program, including insights on the program’s stark racial disparities and its ineffectiveness in recovering illegal firearms.

On the first day of trial, four young men testified about being wrongly stopped by police. Opponents of the stop and frisk practices say they have left NYC neighborhoods suspicious of police. A key figure in the lawsuit is Senator Eric Adams, D-Brooklyn, a former officer and co-founder of 100 Blacks in Law Enforcement. The article reports him asking Police Commissioner Raymond Kelly why the numbers of stop-and-frisks were so high for minority men to be told "because we want to instill in them" that they could be stopped at any time and they should "leave their guns at home."

On the second day of the trial, an eight-year veteran of the NYPD described a police officer's job that ranges beyond just making arrests to doing stop and frisks and writing summonses in service of quotas saying that his supervisors wanted numbers, he testified. "They only care about one thing--arrests, summonses and stop and frisks." The lawyer for the NYPD responded that the quota claims area "sideshow" and that the NYPD has performance standards, not quotas with the number of stops reflecting police responding to high areas of criminal activity saying "Simply put, crime drives where police officers go, not race."

The Brooklyn Law School Library has in its collection the 4th edition of Search and Seizure (Call # KF9630 .H35 2012) a two-volume set by John Wesley Hall, a practicing trial lawyer who offers expert insight on issues such as reasonable expectation of privacy, consent, and probable cause, as well as guidelines governing search and seizure in vehicles, professional offices, and airports. Chapter 15 covers Stop and Frisk.

Copyright and First Sale Doctrine

The US Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons that the first sale doctrine applies to copyrighted works, such as textbooks, made and sold abroad and re-sold online and in discount stores. In a 6-3 opinion, Justice Stephen Breyer reversed a judgment entered in the Southern District of New York in favor of the publisher against the plaintiff graduate student which the Second Circuit Court of Appeals affirmed in John Wiley & Sons, Inc. v. Kirtsaeng, 654 F. 3d 210 (2011). The student had subsidized the cost of his education by using eBay to resell copies of the publisher’s copyrighted books that his relatives first bought abroad at cut-rate prices. Citing the brief of the American Library Association, Justice Breyer wrote that to rule otherwise would create financial chaos, citing public libraries as an example and asking are “libraries to obtain permission to distribute these millions of books? How can they find, say, the copyright owner of a foreign book, perhaps written decades ago? . . . . Are the libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad?”

The decision discusses 17 U. S. C. §106(3) and the limitations set out in §§107 through 122, including §109(a)’s “first sale” doctrine which dates back over a century. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339 (1908) which dealt with the sale of a copyrighted novel. The doctrine, which limits copyright holders to profits only from the original sale thereby allowing a person to sell the copyrighted work in the United States without punishment and without having to compensate the original copyright holder, ensures a distribution chain of retail items, library lending, gift giving and rentals for a range of intellectual property. The ruling is the first time the Court ruled on whether that first sale doctrine applies to material both manufactured and first purchased outside the United States. Breyer said it does: “The upshot is that copyright-related consequences, along with language, context, and interpretative canons, argue strongly against a geographical interpretation.”

The Brooklyn Law School Library has a number of items in its collection on copyright and the first sale doctrine. See the third edition of Examples & Explanations: Copyright (Call # KF2995 .M35 2012) by Stephen M. McJohn which is on reserve at the circulation desk. Chapter 12 deals with the First Sale (including the Distribution Right and Importation). The remaining content is: An overview of copyright -- Works of authorship -- Originality -- Fixation -- Ideas are not subject to copyright -- More excluded subject matter : functional aspects, infringing material, government works -- Initial ownership of copyright -- Formalities : copyright notice, registration, and deposit -- Duration of copyright – Copyright transactions -- The Section 106 exclusive rights -- First sale -- Some other limits on the exclusive rights -- Fair use -- Moral rights in works of visual art -- Protections for technological measures and copyright management information -- Jurisdiction, standing, and the elements of an infringement action -- Contributory infringement and vicarious liability -- Remedies -- State law theories and federal preemption.

50th Anniversary Landmark Ruling

On March 18, 1963, Supreme Court Justice Hugo L. Black, writing for a unanimous Court, ruled in Gideon v. Wainwright that the states must provide an attorney to an indigent criminal defendant who cannot afford one. Before Gideon, the Court had held that such a requirement applied only to the federal government. With the fiftieth anniversary of that landmark decision, the NY Times reports in an article Rightto Lawyer Can Be Empty Promise for Poor that many legal officials say that the promise inherent in the Gideon ruling remains unfulfilled because so many legal needs still go unmet.

The Brooklyn Law School Library recently acquired the DVD version of Gideon’sTrumpet (KF9646 .G53 2000) for its audio-visual collection. Starring Henry Fonda as Clarence Earl Gideon and José Ferrer as Abe Fortas who argued the case before the Supreme Court, the film tells the true story of Gideon’s fight to be appointed counsel at the expense of the state that led to the Supreme Court's decision extending this right to all criminal defendants. The film was based on Anthony Lewis’ book by Gideon'sTrumpet: How One Man, a Poor Prisoner, Took His Case to the Supreme Court - andChanged the Law of the United States (Call # KF9646 .L428) which is part of the BLS Library Main Collection.

Civil Procedure on the Multistate Bar Exam

Starting in 2015, Civil Procedure will be added to the Multistate Bar Exam. The National Conference of Bar Examiners (NCBE) has added it as a subject to the multi-state portion of the bar exam, the first change in more than 40 years. The number of core legal subjects is now seven including the current six subjects: Contracts, Criminal Law and Procedure, Constitutional Law, Evidence, Real Property and Torts. Athough new to the MBE portion of the bar exam, applicants for the New York State bar have always had to contend with New York Civil Procedure as a subject matter.

“This is a very positive development. Procedure is something that is fundamental to everything a lawyer does.” Brooklyn Law School Professor James Park said. The NCBE has hinted for some time that civil procedure would be included in the MBE. The announcement came in late February with a memo to law school deans announcing the February 2015 implementation date. The memo urged the deans to inform faculty and staff who teach civil procedure of the change. Brooklyn Law School Dean Nick Allard said “We will likely add more civil procedure courses.”  BLS Professors Alan M. Trammell, James Park, Jayne Ressler, Elizabeth Schneider, Maryellen Fullerton, Michael Mushlin, Robin Effron, and Roger Michalski currently teach the Civil Procedure course that is designed to introduce beginning law students to the elements and procedures of the civil justice system. The course covers the litigation process from commencement of a case through appeals. Major topics include jurisdiction, remedies, pleading, discovery, class actions, and pretrial and trial procedures.

The BLS Library has an extensive collection of items on the subject of civil procedure including the 3d edition of Principles of Civil Procedure (Call # KF8840.C54 2012) by Kevin M. Clermont. It focuses on the material covered in a typical law school course on civil procedure and breaks down the subject of civil procedure along the standard lines: a brief orientation and a lengthier overview of the stages of litigation, followed by a close inspection of the major procedural problems (governing law, authority to adjudicate, former adjudication, and complex litigation), and then some reflections in conclusion. It discusses specific problems and illustrations, with the aid of generously sprinkled diagrams and special text boxes. Special attention was given to fitting the civil procedure course's main points together to form the big picture, with each topic ending in a section on the big idea the student is supposed to take from the topic.

Corporate Crime Remedies

Early in the 113th Congress, Senator Elizabeth Warren of Massachusetts questioned top U.S. banking and market regulators at a February 14, 2013 Senate Banking Committee hearing titled "Wall Street Reform: Oversight of Financial Stability and Consumer and Investor Protections" (see video webcast at the 01.52.30 mark) why they have not prosecuted a single bank since the financial crisis. Warren asked why ordinary people often faced prosecution while banks do not stating that "There are district attorneys and U.S. attorneys who are out there every day squeezing ordinary citizens on sometimes very thin grounds. And taking them to trial in order to make an example, as they put it. I'm really concerned that too big to fail has become too big for trial. That just seems wrong to me."

At a March 6, 2013 Senate Judiciary Committee hearing titled “Oversight of the U.S. Department of Justice”, Attorney General Eric Holder conceded that the economic impact of a conviction could be so significant that cases are difficult to pursue. “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them,” Mr. Holder told lawmakers. Prosecutors, he said, must confront the problem that “if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy. And I think that is a function of the fact that some of these institutions have become too large.”

Brooklyn Law School Associate Professor Miriam Baer has written in Insuring Corporate Crime, published at 83 Indiana Law Journal 1035 (2008), that we get rid of corporate criminal liability and replace it with an insurance system. Under the proposal, insurance companies would “examine corporate compliance programs, estimate the risk that a corporation’s employees would commit crimes, and then charge companies for insuring those risks.” The abstract for the article reads:

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability - particularly the manner in which it is currently applied by the federal government - creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover the entity's civil penalties associated with its employees' criminal conduct. Entities that successfully procured insurance would no longer be subject to entity-wide criminal liability. Part I begins with a discussion of corporate criminal liability and the costs that accrue from the manner in which it has been implemented by the Department of Justice. Part II examines several proposals to reform corporate criminal liability and explains why they are inadequate. Part III lays out the proposal for an insurance system in lieu of entity-based criminal liability and explains, in rough form, how corporate entities might contract for insurance, how claims might be filed and how damages might be measured. Part III also addresses a number of arguments that others might raise against the proposal.