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With the coming Holiday Season, the BLS Library Blog will be away until the New Year. Brooklyn Law School and the BLS Library will close on Saturday, December 24 and reopen on Tuesday, January 3. Looking back at the history of the celebration of the Christmas holidays in the US shows that in early America, work went on as usual on Christmas day. Puritan influence in parts of New England stemming from the time of Cromwell in England discouraged Christmas celebration. See Nigel Jamieson, Oliver Cromwell – The Grinch That Stole Christmas, 26 Statute L. Rev. 189 (2005) (full text available in WestlawNext at this link). Before the Civil War, the North and the South were divided on the issue of Christmas. Many northerners thought it was sinful to celebrate Jesus' birth or to put up a decorated tree. Most southerners, however, enjoyed the traditions of Christmas. Alabama was the first state to make it a legal holiday in 1836. Ohio did not legalize Christmas until 1857.
Christmas Day did not become a federal holiday until 1870 when President Ulysses S. Grant declared it a legal holiday. Rep. Burton Chauncey Cook (Ill.) introduced HR 2241 in the 41st Congress to make the day a holiday in the District of Columbia. After the Senate and the House agreed on the final wording, President Grant signed it into law on June 28, 1870. The act (a facsimile of which is available at the Library of Congress Century of Lawmaking for a New Nation website here) reads:
An Act making the first Day of January, the twenty-fifth Day of December, the fourth Day of July, and Thanksgiving Day, Holidays, within the District of Columbia. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following days, to wit: The first day of January, commonly called New Year's day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving, shall be holidays within the District of Columbia, and shall, for all purposes of presenting for payment or acceptance of the maturity and protest, and giving notice of the dishonor of bills of exchange, bank checks and promissory notes or other negotiable or commercial paper, be treated and considered as is the first day of the week, commonly called Sunday, and all notes, drafts, checks, or other commercial or negotiable paper falling due or maturing on either of said holidays shall be deemed as having matured on the day previous. APPROVED, June 28, 1870 by President Ulysses S. Grant
Earlier this month, the Department of Health and Human Services in a memorandum blocked a Food and Drug Administration recommendation to make Plan B available without a prescription to women under 17. The executive decision has drawn a response from a group of 15 US Senators who have sent a letter to HHS seeking the specific rationale and data that went into the decision. Now, US District Court for the Eastern District of New York Judge Edward R. Korman, Brooklyn Law School Class of 1966, has invited the Center for Reproductive Rights to file a motion to reopen its case, Tummino v. Hamburg, which accuses the FDA of failing to respond to a 2001 petition to remove age restrictions on Plan B and its generic form. The Center for Reproductive Rights press release states that “The FDA has essentially been holding women’s reproductive health hostage to political calculations.” The CRR, with the Association of Reproductive Health Professionals and National Latina Institute for Reproductive Health, brought suit challenging the FDA’s decision to restrict access to emergency contraception. In 2009, Korman issued an Order ruling in favor of the women’s groups and ordered the FDA to act within 30 days to extend over-the-counter access to 17-year-olds. Judge Korman rejected a request to hold the Food and Drug Administration in contempt of court over its policy on the emergency contraceptive Plan B but said he would consider reviewing the government's refusal to make it easier for girls and women to get the drug. The judge will hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription. He also instructed advocacy groups to file the appropriate legal motions, specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit. For more information, see the Bloomberg article on this story.
This week, the US Supreme Court heard oral arguments in Williams v. Illinois on whether a defendant’s rights were violated with the admission of expert testimony about the results of a DNA test where there was no opportunity to confront the actual analysts. Defendant’s attorney, in appealing a decision of the Illinois Supreme Court upholding the rape and kidnapping conviction, argued that without an analyst from the lab present to testify about the DNA results, the defendant’s rights were violated, especially since the lab tests themselves were not entered into evidence. The Illinois Supreme Court ruled that there was no violation of the defendant’s confrontation right because the findings of the lab report were being admitted only to explain the expert’s opinion about the results.
Since the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), Confrontation Clause jurisprudence has been an active area of case law. Earlier this year, the Supreme addressed the Confrontation Clause and lab tests in two cases: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. The Court ruled that the Confrontation Clause barred the testimony of a surrogate analyst about testimonial statements of the certifying analyst in the forensic report. But the Williams case differs from those cases because instead of introducing the report of the analyst who performed the DNA test, the state of Illinois called another analyst to discuss it. Without cross examination of the person who conducted the test, there remains a question whether the test was performed according to proper procedures. Having an expert who did not actually perform the test discuss the report asks the jury to assume the tests were performed correctly.
The briefs related to the Williams case are available at SCOTUSblog including an amicus brief of the District Attorney of New York County arguing against an “all technicians must testify” rule for New York’s more than 100,000 criminal cases each year as the associated “costs and logistical hurdles would make it all but impossible to prosecute them successfully.” It is natural for prosecutors to ask the courts to make their jobs easier using arguments of scarce resources. The administration of justice is costly but failing to enforce basic procedural rights is costlier. For more on this topic, see the ABA Journal article The Latest Test on the Confrontation Clause by Erwin Chemerinsky.
On the subject of expert evidence, the Brooklyn Law School Library has in its collection the second edition of The New Wigmore: A Treatise on Evidence: Expert Evidence by David H. Kaye, etc. (Call # KF8935 .W486 2011), one volume of a five volume authoritative series that presents the same quality of research, thought, and analysis as the original Wigmore and a present-day counterpart to the seminal evidence treatise.
December 10th marks Human Rights Day 2011, an annual celebration that began in December 1950, when the General Assembly declared a resolution inviting member states to celebrate the day as they saw fit. Sponsored by the United Nations Office of the High Commissioner for Human Rights, Human Rights Day incorporates events, media, and stories about the impact of human rights around the world. The day is when we remember the creation 63 years ago of the Universal Declaration of Human Rights. Some of the rights embodied in the Declaration include the right to be free of torture, the right equal protection before the law, the right to marriage, and the right to education. This year, focuses on women's rights and opportunities.
This year, following a year of protest in countries from Tunisia to Cairo to the Occupy movement, the theme of 2011 recognized the significance of social media and technology in assisting human rights defenders in new ways. Today, the UN High Commissioner for Human Rights hosted a global conversation on human rights through social media. Earlier this week, US Secretary of State Hillary Clinton offered Remarks in Recognition of International Human Rights Day addressing the Human Rights of LBGT persons globally. Today’s focus of the US Library of Congress 2011 Human Rights Day Celebration was Women’s Rights and Opportunities.
Brooklyn Law School Library has an extensive collection of material both in print and online dealing with different aspects of human rights. See, for example, Women's Human Rights and Culture: From Deadlock to Dialogue by Rikki Holtmaat and Jonneke Naber (Call # K644 .H65 2011). The summary of this books states that “in all parts of the world, the implementation of women's human rights is seriously being hindered by gender stereotypes, religion, custom or tradition, in short by 'culture'. Culture is increasingly being used as an excuse to commit serious violations of these rights. It is also brought forward as the reason why governments refuse to implement them, arguing that their culture forces them to accept limited interpretations of international obligations in this area, or to reject such obligations altogether. This book provides women's human rights advocates with dissuasive arguments and effective strategies to avoid a deadlock between on the one hand upholding the principle of universality of human rights, and on the other hand the right to preserve and express one's culture.”
The Second Circuit Court of Appeals in U.S. v. Dugan, 2011 WL 6015752, upheld the conviction of two men for obstructing the entrances to a Planned Parenthood clinic, interfering with clinic staff and patients, in violation of the Freedom of Access to Clinic Entrances (FACE) Act. The defendants were charged with a Class B misdemeanor under 18 U.S.C. §248(a) which makes it a crime to engage in nonviolent physical obstruction of a reproductive health facility. First time offenders are eligible for a prison sentence of up to six months and a $10,000 fine. The statute which dates from 1994 is the subject of an ALR annotation, Validity, Construction, and Application of Freedom of Access to Clinic Entrances Act (FACE), 134 A.L.R. Fed. 507, (available in Westlaw).
The conviction followed a one-day bench trial held last year in the US District Court for the Southern District where Judge Robert W. Sweet found both men guilty and ordered them to serve four-month prison sentences. Defendants appealed arguing they were entitled to a jury trial. The per curiam opinion stated that “The right to a jury trial is guaranteed by Article III, § 2 and the Sixth Amendment of the U.S. Constitution. However, the Supreme Court has long held that this right only applies to prosecutions of “serious,” and not “petty,” offenses.” For more detail, see the NY Law Journal article on the decision. 
The Brooklyn Law School Library collection has The Law of Juries by Nancy Gertner and Judith Mizner with chapters: Right to a jury trial; Compositional challenges; The law of voir dire; Peremptory challenges; Venue; Jury nullification; Dealing with jury conduct/misconduct; The structure of the jury; Issues arising from jury deliberations.
Brooklyn Law School students interested in summer internships should know that the Center for Court Innovation is accepting applications for its Summer 2012 Law School Internship Program. This is an unpaid internship, which will run for eight weeks to ten weeks, commencing in late May or early June and concluding in August. Founded as a public/private partnership between the New York State Unified Court System and the Fund for the City of New York, the Center for Court Innovation is a non-profit think tank that helps courts and criminal justice agencies aid victims, reduce crime and improve public trust in justice. The Center combines action and reflection to spark problem-solving innovation locally and nationally. In New York, the Center functions as the court system’s independent research and development arm, creating demonstration projects that test new ideas, such as community courts, drug courts, reentry courts, domestic violence courts, mental health courts, and juvenile justice initiatives.
Interested applicants should submit a letter of interest, a resume, the names and telephone numbers of two professional references, and a writing sample (limit 5-7 pages) in one document (a PDF is recommended) to legalinternships@courtinnovation.org no later than December 23. Indicate in the reference line one or two of the following areas of interest: drug courts, mental health courts, juvenile justice policy, education advocacy, program evaluation, community courts, community violence prevention.
Law students often write lengthy papers and exams answers believing more is better. But readers, including both law professors and judges, take brevity seriously. See for example the case of Mylward v. Weldon, 21 ER 136 (1596), where the Chancery Court of England punished an aspiring lawyer and ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it needed. He ordered the pleader be taken to the Fleet prison and that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days. The complete text is available in a facsimile at this link. This tale of the bareheaded lawyer gives legal writers a vivid image of what not to do. The Second Circuit, citing the case in Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (2d Cir. 1995), stated that the plaintiff's brief "stirs nostalgia for the rigors of the common law."
The Brooklyn Law School Library has in its reserve collection Thinking Like A Writer: A Lawyer's Guide To Effective Writing And Editing by Stephen V. Armstrong and Timothy P. Terrell (Call #KF250 .A76 2009) which consists of six parts including Chapter 10 - Words: Precision and Brevity. The book has exercises, examples, and writing do's and don'ts, and gives step-by-step instruction on the specialized techniques to draft clear and persuasive legal documents.
