Episode 089: Conversation with Prof. Andrew Napolitano

Episode 089: Conversation with Prof. Andrew Napolitano.mp3

This podcast features an interview with Brooklyn Law School Visiting Professor of Law  Andrew Napolitano who teaches courses on Constitutional Interpretation and Individual Rights and First Amendment Law. Professor Napolitano discusses his role in the upcoming Evening with United States Supreme Court Justice Antonin Scalia scheduled for Friday, March 21, 2014 from 5:30 pm to 7:00 pm at the Brooklyn Academy of Music’s Howard Gilman Opera House.

In the conversation, Judge Napolitano discusses the format of the upcoming event where he will question Justice Scalia on issues of human freedom and the U.S. Constitution. Following that will be questions from the audience on a range of topics that Justice Scalia has covered both in his judicial opinions and dissents as well as the books that he has authored. Books in the collection of the BLS Library include:

Constitutional ChaosJudge Napolitano talks about two of his books that are in the BLS Library collection. The earliest is Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Call # HV9950 .N34 2004) written after he left the New Jersey Superior Court where he served as a trial judge from 1987 to 1995. The book speaks from his experiences and investigation about how government agencies will often arrest without warrant, spy without legal authority, imprison without charge, and kill without cause.

The other title is The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land (Call # KF5050 .N37 2006). The book explains how the federal government has manipulated the Constitution to take power from the states and the people. He closes the interview by discussing The Second Constitutional Convention: How the American People Can Take Back Their Government by Richard E. Labunski (Call #KF4555.L33 2000) which looks at Article V of the U.S. Constitution that authorizes the American people to call for a new constitutional convention.

Private Judges and Secret Rulings

A recent NY Times op-ed Renting Judges for Secret Rulings by Prof. Judith Resnick of Yale Law School raises the question whether wealthy litigants should be able to rent state judges and courthouses to decide cases in private and keep the results secret. While the use of alternate dispute resolution in the form of arbitration and mediation is nothing new dating back to the Federal Arbitration Act of 1925, it is the attempt by the Delaware courts to legitimize in-court secrecy that makes the article and the case that it follows one of interest to the legal community.

The article follows the case of Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013) that the US Supreme Court may decide. In 2009, Delaware amended its code to grant the Court of Chancery “the power to arbitrate business disputes” permitting companies to resolve disputes through closed-door arbitration presided over by a sitting judge. The Third Circuit found the amendment unconstitutional, even though such proceedings are not identical to civil trials, and even though arbitration has historically been private, since Delaware’s government-sponsored arbitration differs fundamentally from other arbitration, in that they are in front of judges in courthouses, result in binding orders of Chancery Court, and allow only limited right of appeal. Finding that court proceedings have historically been open to the public and the judiciary as part of a democratic society, the District Court and the Third Circuit sought to ensure accountability and allow the public to maintain faith in Delaware judicial system. The ruling stated that the drawbacks of openness are slight as court rules provide for confidential filing of documents, and there are remedies to protect trade secrets or other proprietary information. Confidentiality is not the sole advantage of Delaware’s arbitration proceeding over regular Chancery Court proceedings.

The case is pending before the US Supreme Court as Strine v. Delaware Coalition For Open Government, Inc., Docket No. 13-869. Briefs are available at SCOTUSblog which states the issue before the Court as:  Whether Press-Enterprise Corp. v. Superior Court of California‘s “experience and logic” test requires invalidation on First Amendment grounds of a Delaware statute authorizing state judges to act as arbitrators in business disputes — when the parties voluntarily select arbitration — because the arbitration proceedings are not open to the public.

The issue is not a new one and was the subject of a 2006 law review article. See Laurie Kratsky Dore, Public Courts Versus Private Justice: It’s Time To Let Some Sun Shine in on Alternative Dispute Resolution, 81 Chicago-Kent Law Review 463 (Spring 2006) available to the Brooklyn Law School community through the BLS Library subscription to HeinOnline.

Congress.gov Replaces Thomas.gov

For almost 20 years, Thomas has been the official source for federal legislative information.  Now, users trying to access Thomas will be directed to Congress.gov.

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As of now, Congress.gov is a beta site and will remain a beta site until the shifting of all data sets from Thomas is complete.  The full transition is expected at the end of 2014, and at this time Thomas will be permanently retired.

Congress.gov replaces Thomas with a system that includes platform mobility, comprehensive information retrieval and user-friendly presentation. It currently includes all data sets available on Thomas except nominations, treaties and communications.  As mentioned above, all data sets will be included by the end of this year.

If you are interested in learning how to navigate the new platform, online training is available.  Sign up here.

Kolber on Neurolaw

Brooklyn Law School Professor Adam Kolber has posted on SSRN his latest article Will There Be a Neurolaw Revolution? The article is scheduled for publication in 89 Indiana Law Journal later this year. Here is the abstract:

The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.

There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.

Copyright Law and Hyperlinks

The Court of Justice of the European Union (CJEU), Europe’s highest court, ruled that website owners can hyperlink to “freely accessible” copyrighted material without seeking rights holders’ permission. The decision in Svensson and Others v Retriever Sverige AB arises out of a case from Sweden’s Court of Appeal that is of interest to Internet users as it deals with the mechanism holding the web together. The dispute involved Retriever Sverige AB, an Internet-based subscription service that indexes links to articles found elsewhere online for free. It posted links to articles published on a newspaper’s website. The articles were written by Swedish journalists. Retriever took the position that it did not have to compensate the journalists for linking to their articles and that embedding the links within its site did not constitute to copyright infringement. The journalists, on the other hand, felt that Retriever, by linking to their articles, had “communicated” their works to the public without permission. The journalists took their case to the Stockholm District Court where they lost their case in 2010 and decided to take the case to appeal. From there the Svea Court of Appeal sought advice from the EU Court.

The CJEU wrote: “In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public. The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them. Therefore, since there is no new public, the authorization of the copyright holders is not required for a communication to the public such as that in the main proceedings.”

The ruling makes clear that while publishing a link to freely available content does not amount to infringement, there are circumstances where that would not be the case. “Where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public,” the Court wrote. The decision is good news for those who want to embed a YouTube video in a blog or Facebook page, and bad news for those who feel that embedding should result in the payment of a licensing fee.

Peer to PeerThe Brooklyn Law School Library has in its collection Peer-to-Peer File Sharing and Secondary Liability in Copyright Law by Alain Strowel (Call #K1420.5 .P44 2009). Chapter 3, titled Secondary Liability for Copyright Infringement with Regard to Hyperlinks,  states:

“Without hyperlinks, the World Wide Web would not be so compelling. Hyperlinks are, in a way, the threads with which the Web is spun. Instead of users getting tangled in information overload, they find what they are looking for by following links for further reference. Without these links, and without the search engines based on hyperlinking, the information posted online would lose much of its value as it would not be easy to find.

Despite their clear utility, hyperlinks can raise legal liability issues in certain circumstances.”

Data Privacy Legal Hackathon

Data Privacy Legal HackathonThis coming weekend, on February 8 and 9, Brooklyn Law School’s Brooklyn Law Incubator & Policy (“BLIP”) Clinic along with other groups, is organizing a Data Privacy Legal Hackathon. The event will take place in three locations: Dumbo (Brooklyn), London, and San Francisco. Participants will compete in a weekend-long hackathon to create tools that solve common legal problems in the field of data privacy.

A current list of the projects as they develop is available on the Hacker League Project Page.

Speakers and judges include:

New York: BLS Professor of Law Susan Herman and BLIP Founder Professor Jonathan Askin as well as several BLS alumni, Hon. Ann Aiken (District of OR), David Wainberg (AppNexus), Wilfried De Wever (HiiL), Doc Searls (VRM Harvard Berkman Center), K. Krasnow Waterman (MIT), Amyt Eckstein (Moses & Singer), Jason Tenenbaum (Rashbaum Associates), Dona Fraser (ESRB), Solon Barocas (Doctoral Candidate, NYU), Sol Irvine (Yuson & Irvine), Heather Federman (Online Trust Alliance)

London:  Dr. Ian Brown (Oxford Internet Institute), Dr. Ian Walden (Queen Mary University), John Cummings (Innovation Partners), Stefan Magdalinski (Mydex)

San Francisco: K. Krasnow Waterman (MIT), Brian Behlendorf (Mozilla Board), Michelle Dennedy, author of The Privacy Engineer’s Manifesto” (McAfee), John Buckman (EFF) There is still space left at all the locations for participants who want to volunteer. Sign up at the hacker league website to add your skills and join a project.

For more details on the event, see the post Data + Law =  Data Privacy Legal Hackathon at the site Brooklyn Tech Triangle.

Black History Month

blackhistoryTo commemorate and celebrate the contributions to our nation made by people of African descent, American historian Carter G. Woodson established Black History Week. The first celebration occurred on Feb. 12, 1926. For many years, the second week of February was set aside for this celebration to coincide with the birthdays of abolitionist/editor Frederick Douglass and Abraham Lincoln.

In 1976, as part of the nation’s bicentennial, the week was expanded into Black History Month.  Every year, U.S. presidents issue annual proclamations proclaiming February as National African-American History Month.  President Obama issued his proclamation on Friday February 1st, and in it said “During National African American History Month, we honor the men and women at the heart of this journey – from engineers of the Underground Railroad to educators who answered a free people’s call for a free mind, from patriots who proved that valor knows no color to demonstrators who gathered on the battlefields of justice and marched our Nation toward a brighter day.”

The Library has many biographies of renowned African Americans in its collection.  Below is a selected list.

Black revolutionary : William Patterson and the globalization of the African American freedom struggle

Thurgood Marshall : race, rights, and the struggle for a more perfect union

Becoming King : Martin Luther King, Jr. and the making of a national leader

Stepping up : the story of Curt Flood and his fight for baseball players’ rights

Rebels in law : voices in history of Black women lawyers

Clarence Thomas : a biography

Journey to justice

Black Americans in Congress, 1870-2007

 

 

 

 

 

 

Practice Ready Law Students

The Brooklyn Law School Library’s January New Books List is now available thanks to Cataloging Librarian Jeff Gabel. The 73 titles on the list cover a wide range of subjects including female circumcision; the invisible web; western films; the Bible and law; the death penalty; hedge funds; and taxation. Two of the titles deal with the role of law schools in preparing students for the practice of law.

Teaching Law PracticeThe first of these, Teaching Law Practice: Preparing the Next Generation of Lawyers edited by Charles Cercone (Call # KF279.T43 2013), argues that law schools have a peculiar responsibility and opportunity to help accelerate the change in the packaging, pricing, and delivery of affordable legal products and services to corporate and individual clients in sustainable law firm models. Schools with practice preparation as their mission can help the profession study and improve the ways in which lawyers identify clients and their needs, and then find effective and efficient ways to serve them. The book collects some of the practice-preparation efforts of the faculty at Thomas M. Cooley Law School. The essays in the book demonstrate how faculty can prepare graduates to practice law and meet new challenges that all lawyers must face.

The Marble and the SculptorThe second book, The Marble and the Sculptor: From Law School to Law Practice by Keith Robert Lee (Call # KF297 .L444 2013), provides an understanding of what is expected of new attorneys and a framework for becoming a successful—both as a lawyer and in life. With advice on everything from choosing classes that matter in law school to the importance of writing well, attracting clients, and avoiding five basic mistakes in your first job at a law firm, the book can help young lawyers regardless of law school or area of practice.

Earlier this month, BLS Library’s Kathy Darvil, Access Services/Reference Librarian and Adjunct Assistant Professor of Law Reference participated in the Law Library Association of Greater New York’s 75th Anniversary Education Conference. The panel, called Collaborating to Produce Practice Ready Graduates, consisted of Prof. Darvil, Susan McKenna, Elaine Egan, Linda-Jean Schneider, and Yasmin Harker. Prof. Darvil’s presentation Preparing Practice Ready Graduates: Specialized Legal Research Courses is available at this link.

Seminar Paper Workshop

training_iconOn Thursday February 6, Professor Elizabeth Fajans and Librarian Kathy Darvil will host a workshop on how to effectively research and write your seminar paper.  The workshop is from 4-5:30 and is located in Room 602.  Topics covered included sources for selecting your topic, sources for researching your topic, and how to effectively organize and write your paper.

If you are unable to attend the workshop, there is no need to fear.  Kathy Darvil created an online research guide to support the seminar.  The guide is available at guides.brooklaw.edu/seminarpaper.  From the guide’s landing page, you will be able to access a recording of this year’s presentation, Professor Fajan’s slideshow on how to write your seminar paper, and Kathy Darvil’s online presentation on how to research your seminar paper.  Also listed and described on the guide are all the resources (as well as several others) that were discussed in the workshop.  If you should need further help selecting or researching your topic, please stop by the reference desk for assistance.

Bloomberg Law Enhancements to BCite

Bloomberg Law has made significant enhancements to their citator, BCite, available on BloombergLaw.com:

“The enhanced Bloomberg Law Citator (BCite) makes it easier to navigate the content related to a case and to find related documents across all of Bloomberg Law. BCite now features separate tabs for the Direct History, Case Analysis, and Table of Authorities and provides expanded filtering options designed specifically for related tasks. For instance, the Direct History tab includes filter options for History, Court, and Date, while the Case Analysis and Table of Authorities tabs add filters for Analysis, Case Status, Citation Frequency, Court, and Judge. The new Citing Documents tab provides the ability to find documents citing to your court opinion across many content sets, including court materials, administrative and regulatory documents, legislative content, and secondary sources, like books, treatises, and BNA analysis.”

BCITE

Users can now easily see all documents, including secondary sources, that cite to a particular case, and filter or search within those citing documents. Remember that BloombergLaw.com is free for all BLS students with no academic use restriction. Your passwords will be active until the end of the calendar year in which you graduate.

For questions on how to access or use BloombergLaw.com, see a Reference Librarian, or contact our BLS Bloomberg Relationship Manager, Erica Horton (ehorton@bna.com).