New Books List October 21, 2014

TocquevilleBrooklyn Law School Library latest New Books List has 70 items on a wide range of subjects. Of particular interest to legal scholars of administrative law is Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 by Georgetown Law School Professor of Law Daniel R. Ernst (Call #JK411 .E76 2014). The subject may seem dry but Prof. Ernst, in less than 150 pages, tells a lively and compelling story of how legal giants from the early 20th (lawyers, judges and legal scholars such as Ernst Freund, Felix Frankfurter, Charles Evans Hughes, and Roscoe Pound) used the rule of law to respond to the problems posed by the growth of bureaucracy. Their combined efforts laid the foundations of American administrative law in the critical years between 1900 and 1940 culminating in the 1946 Administrative Procedure Act which codified already-established best practices.

In the introduction, Ernst explains the title of his work recalling Alexis de Tocqueville’s visit to America in the 1830s and his observation that, while the United States had “centralized government”, it had little “centralized administration” or bureaucracies imposing their will on Americans. Tocqueville warned that if the United States ever became habituated to centralized administration “in that country a more insufferable despotism would prevail than any which now exists in the monarchical States of Europe, or indeed than any which could be found on this side of the confines of Asia.”

By 1940, America had acquired a great deal of centralized administration with administrators resolving disputes, collecting taxes, regulating industry, and distributing grants and loans. Proponents of the administrative state argued that the new agencies made individual freedom possible in an age of industrial concentration and national markets, in marked contrast to the dictatorships of Mussolini, Hitler, and Stalin. Ernst suggests that the primary reason for the success of the American administrative experiment was Americans’ belief that courts would deliver them from Tocqueville’s nightmare. This gave a legalistic cast to the administrative state by applying the “rule of law” and ensuring that common-law courts would continue to serve as the ideal against which administrative agencies were judged. Agencies in their “quasi-adjudication” roles were bound by concepts of due process, were required to maintain judicial aloofness from subordinates, and were to justify their actions in deciding individual cases in legalistic ways: holding hearings, compiling a record of testimony, including detailed findings of facts supporting their orders. Many of these procedural safeguards came about from fear that America’s administrators would take their lead from political bosses and “professional office-seekers” who like European bureaucrats had little training and expertise and served partisan purposes.

goodIn his concluding chapter, Ernst contrasts Elihu Vedder’s two murals in the Library of Congress, Corrupt Legislation and Good Administration: arresting depictions of the plight the creators of the American administrative state hoped to escape and the sound and just government they hoped to attain. In Good Administration, the central female figure is chastely robed and serene. The scales she holds are in equipoise and on her shield are emblems of a just government, the weight, scales, and rule. To her left, a young man drops a ballot into a voting urn. On the right, a young woman winnows wheat over another voting urn. Behind them is a thriving wheat field. In contrast, the central figure in Corrupt Legislation is a woman with a beautiful but depraved face. The path to her thrown is overgrown with wcorru[teeds, showing that people have abandoned a direct approach to Justice. In her left hand the woman holds a set of scales onto which a man is placing a sack of coins as his bribe. In the background is the man’s factory, smoke billowing from its stacks. Another factory to the woman’s right is still and in disrepair. A poorly clad girl, representing Labor, appeals to the woman for employment but is waved away.

If the early 20th Century father of the administrative state expected to avoid Tocqueville’s nightmare, they knew that administrators would not stay good on their own, and they designed the administrative state accordingly. The emergence of a procedural rule of law during the heyday administrative adjudication remains relevant as the various methods of holding administrators accountable tried out before 1940 are part of a repertoire that we still turn to today. Ernst’s history shows that we can have an administrative state without transgressing fundamental principles of American governance.

UnlawfulAnother new item in the BLS Library collection takes a different view of the subject. Is Administrative Law Unlawful? by Columbia Law School Professor of Law Philip Hamburger (Call # K3400 .H253 2014) has more than 635 pages which suggests only an affirmative response is correct for the question in the title. In his review of the book, Harvard Law School’s Adrian Vermeule says otherwise seeing praise of this book “as a sign of the times, a portent of the dimming of the legal mind, that this book is described in some quarters as ‘brilliant’ and ‘path-breaking.’ It isn’t; and the only sensible response to Hamburger’s question, as far as I can see, is ‘no.’ He calls the book a “dark vision of lawless and unchecked power” in which the author “wants us to see that American administrative law is ‘unlawful’ root-and-branch, indeed that it is tyrannous — that we have recreated, in another guise, the world of executive ‘prerogative’ that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law. . . . There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.”

Problems with CALI

caliThe Center for Computer-Assisted Legal Instruction (CALI) has informed BLS Library that they have been having issues with the stability of instances in the CALI web cluster that have taken offline for extended periods over the last few days.
If you try the CALI website and it is down or slow please wait an hour or so and try again.
They hope to have this problem rectified soon and are sorry for the inconvenience.

Bluebooking & Research Review Sessions for First Years

180px-The_Bluebook_18th_ed_CoverThe Library will hold two “Bluebooking with Success” sessions for first year students.  The presenter will be Professor Janet Sinder, Library Director.  Students may attend either session; no sign-up is necessary.   The dates, times & room numbers are:

Thursday, October 30, 2014, 4pm – 5pm, Room 501.

Monday, November 3, 2014, 5pm – 6pm, Room 601.



ContentImage-6275-95126-shutterstock_108141146The Library will also offer two “Research Question & Answer” Sessions for 1Ls prior to their research quiz.  Students may attend either session; no sign-up necessary.  Dates, times, rooms below:

Tuesday, October 28, 2014, 4pm – 5pm, Room 401.

Tuesday, November 4, 2014, 5pm – 6pm, Room 401.





7 Habits of Highly Effective New Lawyers

Right now, you are focused on being a highly effective law student so you can land a good job after you graduate.  Have you ever stopped to think, though, about what characteristics and qualities will help you to succeed after you accept your first legal position?  A recent Law360 article considers just this question and, after interviewing senior lawyers at a number of New York City law firms, offers the following list of 7 characteristics of highly effective newer lawyers:

1.  They Get and Stay Organized.  Effective associates ask assigning attorneys upfront about deadlines and create a running “to do” list showing tasks and due dates.  According to the article, this helps associates keep their focus when they might otherwise become distracted by more exciting, but less time sensitive, matters.

2.  They Respond Immediately.  Effective associates never wait to respond to a partner or a senior associate according to the attorneys interviewed for the article.  These associates make sure to acknowledge each task they are assigned (by a return phone call or email) even if they are unable to complete the task right away.  These associates also always provide realistic deadlines for when they will complete the work, so assigning attorneys can plan accordingly.

3.  They Research Even the Tiniest Details.  For the new litigating attorney, this may mean becoming familiar with the layout and AV capabilities of a courtroom prior to an appearance. Newer corporate lawyers may need to do online research about opposing counsel to help develop strategies that are likely to move the ball along in a marathon negotiating session.

4.  They Act Like They Already Have the Job They Want.  This one is simple, according the article; in order to act like you already have the job you want, try to step into the shoes of the attorney giving you the assignment.  Try to anticipate all of the things that need to be done to move a case or deal forward and formulate a plan to accomplish those objectives.  Also, if you can get a sense of your supervising attorney’s writing style, work habits, and billing practices, you can tailor your own work product to make it consistent with that style.

5.  They Anticipate.  According to the article, the best new associates are prepared to answer the questions a partner or client will raise even before they are asked.  In order to do this, associates must be thoroughly familiar with the facts and law of the issue they are working on. Also, advises the article, never tell a senior attorney about a problem without also offering possible solutions to solve that problem.

6.  They’re Always Looking for Connections.  Effective associates are continually on the lookout for new mentors, staff, and other associates that can help them succeed in their careers.  One way to cultivate this network and to achieve a higher profile at the firm, according to the interviewed attorneys, is to actually visit senior attorneys in their office with questions rather than sending an email or leaving a voicemail.  Just be sure to limit the duration of your visit; senior attorneys are happy to mentor junior associates but you must respect the great demands they have on their time.

7.  They Act as if They Work Alone.  Always act as if your work is going directly to a client or a judge and that there is nobody to catch your mistakes.  Even if a senior associate finds the mistakes in your work before it lands in the hands of a judge or client, you have damaged your reputation when you cannot be trusted to verify the accuracy of your own work product.

Want to read the whole article?  Find it at Law360 on Lexis Advance: 7 Habits Of Highly Effective Associates

Supreme Court Website Gets A Makeover


This past Monday, the Supreme Court Website displayed a new and improved look.

According to their press release, the reorganized menu and new, horizontal format make navigating the site easier and more efficient. Some of the most frequently requested information will now be available directly on the site’s homepage, including the transcripts and audio for the most recent oral arguments, and information for planning a visit to the Court. Website users will notice enhanced images and graphics, improved search features and updated access on mobile devices.

The Supreme Court Website, , was launched on April 17, 2000, to make Court information available via the Internet to the Bar, the public, and the news media.

Reiss on Government Sponsored Enterprises

Brooklyn Law School Professor of Law David Reiss recently posted The GSE Guarantee Fee as a Policy Tool on SSRN. The abstract reads:

Setting Fannie Mae and Freddie Mac’s guarantee fee rates can have a large impact on the housing market. Setting the rate too low can negatively impact the financial health of Fannie and Freddie. It can also have a positive impact on housing prices because it reduces the overall cost of credit. On the other hand, setting the rate too high can generate excess revenues for the two companies. This would impact Congress’ plans for them as well as possible outcomes for the investor lawsuits arising from the GSE’s conservatorships. And it would also have dampening effect on housing prices, as it would increase the cost of mortgages. While the Federal Housing Finance Agency should consider the broad policy impacts when determining the guarantee fee rate, its main goal should be to set the rate at a level that properly accounts for the guarantee risk borne by the two companies.

BLS Library Research Fair: September 30, 2014

The 3rd annual Library Research Fair will be held on Tuesday, September 30, 2014.  The fair will be held in the Student Lounge from 12Noon to 3:00pm.  Representatives from the following companies will be here to demonstrate their databases:

  • Bloomberg Law
  • CALI (Center for Computer-Assisted Legal Instruction)
  • Fastcase
  • Lexis
  • ProQuest
  • Westlaw
  • Wolters Kluwer

In addition, the Library will have a table to demonstrate our new One Search database.

Come and learn how these databases will help you with your legal research.  There will be handouts, light refreshments, prizes and raffles for a Kindle Fire and $50.00 gift cards.

So, save the date:  Tuesday, September 30th, 12Noon to 3:00pm, Student Lounge.

See you there!

Effron on Future of Forum Non Conveniens

Brooklyn Law School Professor of Law Robin Effron has posted on SSRN Atlantic Marine and the Future of Forum Non Conveniens. In December of 2013, the US Supreme Court issued a unanimous decision upholding a general contractor’s ability to require its subcontractors to litigate disputes in the state or federal court of its choosing. The article is schedule for publication later this year in the Hastings Law Journal. Here is the abstract:

This essay explores the impact of the Supreme Court’s unanimous opinion in Atlantic Marine Construction Co., Inc. v. U.S. District Court on forum non conveniens doctrine. Although Atlantic Marine concerned a § 1404(a) transfer within the federal system, and therefore does not directly address forum selection clauses pointing to foreign forums, the case will undoubtedly have an impact on how courts treat forum selection clauses that point to a foreign forum. In this essay, I will argue that the Atlantic Marine opinion relies on a strict coupling of § 1404(a) and forum non conveniens for its holding. As a result, lower courts will be more likely to conflate these two doctrines that had been slowly but surely developing on parallel tracks. This essay explains why merging or conflating § 1404(a) and forum non conveniens doctrine is problematic, both as a general matter and as applied to the specific context of forum selection clauses. It also demonstrates that the Court’s blunder is symptomatic of problems inherent in the current § 1404(a) and forum non conveniens standards, as well as doctrinal difficulties in federal enforcement of forum selection clauses.

Constitution Day

Wednesday, September 17 is Constitution Day and Citizenship Day according to 36 U.S.C. 106 which states its purpose “to commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens.” The history of Constitution Day goes back to 1952 when Congress passed a joint resolution (66 Stat. 9) that designated September 17 as Citizenship Day. In 1956, another joint resolution (70 Stat. 932) established September 17 through 23 as Constitution Week. Public Law 105-225 revised and codified laws related to “Patriotic and National Observances” as Title 36 of the United States Code in 1998. In 2005, Congress passed Public Law 108-447 that added “Constitution Day” to the law and mandated ” the civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and of the State and locality in which they reside.”

To mark the event at Brooklyn Law School, Constitutional Law Professors Bill Araiza, Joel Gora, Susan Herman, and Andrew Napolitano will conduct a discussion on the most significant Supreme Court cases of the last term. These include the Hobby Lobby case and cases about campaign finance, affirmative action, and cell phone searches. The professors will also address issues likely to come before the Court in the near future, including the status of cases about the right to marriage equality. Students are encouraged to attend and participate in a Q & A with the faculty members.

On Saturday, September 13 at 12:00 pm noon, BLS Professor Susan Herman who serves as ACLU president will appear on the long-running television show Open Mind on PBS Channel THIRTEEN/WNET to consider the 2014 Supreme Court decisions and their impact on individual liberty. She explores the Hobby Lobby case, among others, as well as how to balance privacy and national security concerns. The show will also air on CUNY TV at 9:30 am & 8:30 pm Sundays and 8:00 am & 2:00/8:00 pm Mondays.

ObsoleteThe BLS Library Law Library has an extensive collection of books on the Constitution, its history and interpretation. To locate books on the history of the Constitution, use the SARA catalog to conduct a subject search using the phrase: United States — Constitutional history. Some recent acquisitions in the BLS Library collection include Is the American Constitution Obsolete? by Thomas J. Main (Call #KF4550 .M255 2013), a comprehensive one-volume debate on the pros and cons of our basic law and how it deals with questions such as judicial review, political gridlock, direct election of the president and the future of the electoral college. It is ideal reading for courses that cover the Constitution.

CitizenAnother recent acquisition to the BLS Library collection on the subject is A Citizen’s Guide to the Constitution and the Supreme Court: Constitutional Conflict in American Politics by Morgan Marietta (Call #KF4550.Z9 M275 2014). The author provides an overview of the perspectives from the leading schools of constitutional interpretation–textualism, common law constitutionalism, originalism, and living constitutionalism. He discusses the points of conflict and competing schools of thought in the context of several landmark cases and ends with advice to readers on how to interpret constitutional issues ourselves.


LexisAdvance Has a New Look

As of today, LexisAdvance has a new look. According to Lexis, the new LexisAdvance offers a sleek, sophisticated new design, enhanced navigation and integration, as well as anywhere, any-device access.

Take a look here HERE to read more about the new LexisAdvance enhancements. You can also register for webinars on this page which are designed to help you to navigate the new Lexis interface.

Click HERE to watch video tutorials on using the new LexisAdvance, including an overview of new features and a series of “show me how” videos which demonstrate advanced skills such as working with folders, browsing sources, and Shepardizing.

If you need help using the new LexisAdvance, please see a reference librarian, we are happy to help!