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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.

New Loan Rules and Circulation Procedures

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Recently, the Library changed its circulation rules for students and staff, and instituted a new recall procedure.  Students and staff are now able to charge out regularly circulating materials for the entire semester.  Items will be due at the end of the current semester.  Items will no longer have a 30 day due date. 

To accommodate another patron’s need for information, the library has instituted a new procedure for recalling items on loan.  If a title is checked out, another patron can ask that the title be recalled.  The library will email the user who has the title and explain that it is recalled.  Recalled items must be returned to the library within 14 days of the notice.  The recall notice will include the new due date.  Items not returned by the new due date will be considered overdue, and fines will be assessed.  When the book is returned, the library will notify the requesting patron by email and hold the book for 10 days.   Circulating materials not requested by another borrower may be renewed for another semester.  Requests to recall or renew a checked-out item can be made in person, at the circulation desk, or by emailing or calling the circulation desk ((718)780-7973; circdesk@brooklaw.edu). 

*These new rules and procedures do not apply to material on reserve in the library.

**The photograph, which appears in this post, is courtesy of Providence Public Library’s Flickr Stream.

New Gender Jurisprudence Website

The Gender Jurisprudence and International Criminal Law Project is a collaborative project between the War Crimes Research Office (WCRO) and the Women and International Law Program (WILP) at American University Washington College of Law. Launched with support from the Open Society Institute’s International Women’s Program, the project aims to raise awareness of and encourage research and debate about the jurisprudence emerging from international and hybrid tribunals regarding sexual and gender-based violence committed during times of conflict, mass violence, or repression and to facilitate the investigation and prosecution of these crimes under international law.
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The centerpiece of the website is the Gender Jurisprudence Collections (GJC), a powerful database containing more than 26,000 documents, including judgments, decisions, and orders issued by international/ized criminal courts and tribunals, and made easily searchable for issues relating to sexual and gender-based violence. Unlike online searches that can generate hundreds of irrelevant decisions, the GJC includes close to 1,700 documents that have been identified as containing gender issues and coded for key concepts, eliminating researchers’ need to sift through extraneous documents.

In addition to the GJC, the Project includes concise digests of select decisions and court documents highlighting key facts, allegations, and legal analyses dealing with sexual and gender-based violence, allowing researchers to quickly home in on content that is most significant.

The site also includes commentaries on select issues or cases critical to understanding developments in this area of the law by academics, practitioners, judges, prosecutors, and legal scholars with particular expertise in the investigation and prosecution of sexual and gender-based violence.

In addition, the site’s blog offers a dynamic space for the international law community to engage in honest, insightful, and grounded discussions of ideas, programs, data, laws, and policies about current feminist debates within the field of international criminal law.

Spring Break Library Hours

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The Library will be open the following hours during spring recess:

Saturday & Sunday, March 23 – 24:   9:00am – 10:00pm

Monday – Thursday, March 25 – 28:  9:00am – 12:00am

Friday – Sunday, March 29 – 31:          9:00am – 10:00pm

Enjoy your break!

Congressional Research Service (CRS) Reports

The Congressional Research Service (CRS) works exclusively for the Congress, providing policy and legal analysis to committees and members of both the House and Senate. As a legislative branch agency within the Library of Congress, CRS is a valued and respected resource on Capitol Hill.

CRS experts assist at every stage of the legislative process — from the early considerations that precede bill drafting, through committee hearings and floor debate, to the oversight of enacted laws and various agency activities. crs

CRS approaches complex topics from a variety of perspectives and examines all sides of an issue. Staff members analyze current policies and present the impact of proposed policy alternatives to Congressional members.

CRS Reports is a product of this research process. These reports provide detailed analysis on a wide variety of significant legal, scientific, public policy, and foreign policy issues.

Below are a few of the latest CRS Reports obtained by Brooklyn Law School Library.

Integration of Drones into Domestic Airspace:Selected Legal Issues

The 2013 Cybersecurity Executive Order:Overview and Considerations for Congress

Same-Sex Marriage and the Supreme Court:United States v. Windsor and Hollingsworth v. Perry.

March is Women’s History Month: Titles on Women & the Law

March is Women’s History Month.  The Library takes this opportunity every year to celebrate “Women and the Law” with books the Library owns on the topic highlighted in the first floor display case.  Some of the titles displayed there this year are:

Baer, Judith A.,  Women in American Law: the Struggle Toward Equality from the New Deal to the Present.

Blakely, Susan Smith, Best Friends at the Bar: the New Balance for Today’s Woman Lawyer.

Brown, Anne Murphy, Legally Mom: Real Women’s Stories of Balancing Motherhood & Law Practice.

Craig, Judi, Women Attorneys Speak Out! How Practicing Law is Different for Women than for Men.

Epstein, Phyllis Horn, Women-at-Law: Lessons Learned Along the Pathways to Success.

Fletman, Abbe F., The Woman Advocate.

Kuersten, Ashlyn K., Women and the Law: Leaders, Cases, and Documents.

Lockwood, Karen M., The Road to Independence: 101 Women’s Journeys to Starting their Own Law Firms.

Salkin, Patricia E., Pioneering Women Lawyers: From Kate Stoneman to the Present.

Sherman, Lisa G., Sisters-in-Law: An Uncensored Guide for Women Practicing Law in the Real World.

Slotkin, Jacquelyn Hersh, It’s Harder in Heels: Essays by Women Lawyers Achieving Work-Life Balance.

Snyder, Theda C., Women Rainmakers’ Best Marketing Tips.

If you would like to look at any of the titles on display, please inquire at the first floor reference desk.

Practicum: Online Forum for Legal Writing

Brooklyn Law School has launched a new version of Practicum, the online companion to the school’s four existing scholarly journals. Practicum embraces the Internet to publish timely pieces in an accessible forum at a time when people increasingly retrieve their information from blogs, online news outlets, and legal databases where traditional print law journals are increasingly becoming a thing of the past. Unlike most scholarly publications, Practicum offers an outlet for practitioners to reflect on news, issues, and developments in the law and legal theory, including those developments featured in our paper volumes. Practicum provides an opportunity for practicing attorneys as well as law students to engage in meaningful, fast-paced discourse on the most cutting edge topics in their fields. The new version of Practicum has three featured posts: How Colleges and Universities Can Turn Green Without Some of the Typical Pitfalls by Richard J. Sobelsohn, BLS Class of 1998; Why Fair Pay is About More than Fairness by Hanna Bergqvist Jackson, an LL.M. student BLS Class of 2013; and Regulating the Practice of Charging Loan Interest as a Case Expense by Alexander Goldman, BLS Class of 2014.

Ethics and Impaired Lawyers

The Brooklyn Bar Association, established in 1872, hosts programs to promote professional competence among attorneys and increased respect for the legal system. On Thursday, March 21, 6:00-8:00pm, it will hold a Free Ethics Opportunity with the Lawyers Helping Lawyers Committee. The program, called Don’t Shoot the Messenger: A Tattler’s Tale Ethical Considerations and Impaired Lawyers,, which will be held at 123 Remsen Street in Brooklyn Heights and is free to Brooklyn Bar Association and Brooklyn Women’s Bar Association members who pre-register and to Brooklyn Law School Students and Faculty who do not need to pre-register. 

Presenters include the Hon. Sallie Krauss and the Hon. Robin S. Garson, co-chairs of the BBA Lawyers Helping Lawyers Committee; Eileen Travis, MSW – Director, NYCBA Lawyers Assistance Program; Deborah A. Scalise, Esq., former Deputy Chief Counsel, Disciplinary Committee of the Appellate Division 1st Department; Gregory T. Cerchione, Esq., Chair, BBA Grievance Committee and member of Committees on Character & Fitness of the Appellate Division 2nd Department; James J. Keefe, Esq.; and Kathleen Waterman, Esq.

The Course Description reads: Learn to recognize the signs that indicate a law partner or attorney in your office is impaired by alcohol or drug abuse. Our panel of experts will discuss the ethical and practical steps necessary to protect clients and the law firm, including the use of the Model Policy for firms trying to keep a troubled lawyer employed. Find out about confidential resources available to help save the impaired attorney’s life, what it takes to defend against disciplinary charges associated with the impaired behavior, including an overview of the applicable Rules of Professional Conduct and the Appellate Divisions’ Diversion Rules, and what might put your own license at risk.

The road to impairment can begin long before a lawyer gets a license. The alarming rate of alcohol and drug abuse by law students attempting to mask anxiety or depression prompts us to include a discussion of the hurdles that Bar applicants must negotiate when they have exhibited behavior that calls into question their fitness to practice law.

Symposium on Bias in Decision Making

The Brooklyn Law School Legal Writing Program, the Center for the Study of Law, Language and Cognition and the Journal of Law and Policy are sponsoring a Symposium on The Impact of Cognitive Bias on Persuasion and Writing Strategies on Friday, March 1, 9:00 am – 1:00 pm at the Subotnick Center, 250 Joralemon Street, Brooklyn, NY. After opening remarks by BLS Professor Lawrence Solan, there will be two panels: Implications for Advocacy moderated by BLS Professor Marilyn Walter and Implications for Persuasion moderated by BLS Professor Elizabeth Fajans. View the full agenda here. Please RSVP online by Wednesday, February 27.

The Symposium will address research into the psychology of decision-making that has demonstrated that when people are called upon to process complex and ambiguous information, they rely on mental shortcuts to ease the cognitive burden of these tasks. Such heuristics and biases, as they are called, sometimes lead to faulty judgments because they are naturalistic and intuitive (involving, for example, “gut instincts” and personal experience), and prone to error more than are analytical judgments based on careful consideration and logical processing of the information presented.

The legal profession has explored the role of cognitive bias in many domains, ranging from their contributions to jury-based and judiciary decision-making to their influence on negotiation. This symposium refocuses the discussion by looking at the function and role of cognitive bias in legal writing and explores both the persuasive power and the related ethical challenges of cognitive bias in this realm, with an emphasis on improving legal writing and legal writing strategy.