Episode 067 – Conversation with Prof. David Reiss.mp3

In this podcast, Brooklyn Law School Professor David Reiss discusses two of his most recent white papers, Fannie Mae, Freddie Mac, and the Future of Federal Housing Policy and Fannie Mae and Freddie Mac: Implications for Credit Unions. Prof. Reiss, who concentrates on real estate finance and community development, examines how the two companies should exit their conservatorship and conceptualizes the reform of the two companies and the manner in which the residential mortgage market is structured. He explores implications that will reach throughout the global financial markets that are of key importance to the future of American housing finance policy. For more of his writings, see the list at this link.

Although rarely cited in contemporary case law, the Declaration of Independence has a role in how courts review legislation. A recent article Representative Self-Government and the Declaration of Independence by Alexander Tsesis analyses how the courts can use those famous words when ruling on the constitutionality of statutes. One such example is Citizens United v. Federal Election Commission, where the US Supreme Court prevented Congress from differentiating between corporations’ and citizens’ campaign expenditures. The article uses the Declaration’s phrase about inalienable rights of the people, particularly freedom of political expression, to analyze the Court’s equating of corporations and natural people for First Amendment purposes in Citizens United v. Federal Election Commission. It goes on to conclude that “by granting corporations equal First Amendment protections on campaign speech, the Court attenuated the people’s unique place in electoral politics.”

HBO is airing through late July the documentary Hot Coffee about the tort “reform” industry that used the famous 1994 case of Stella Liebeck v. McDonald’s Restaurants, P.T.S., Inc. and McDonald’s International, Inc. as a synonym for court abuse. The plaintiff sued McDonald’s for damages resulting from being scalded by hot coffee served at a temperature of 180–190 °F resulting in third-degree burns. The story may be familiar as it became symbolic for frivolous claims. But there is more to the story as the documentary shows the publicity campaign that influenced public opinion to view the case as a symbol of frivolous claims. The trailer is here.

The BLS Library has in its collection Products Liability and Basic Tort Law by Martin Alan Kotler (Call # KF1296 .K68 2005) which discusses the effort to carve out separate spheres for tort and contract law and the (largely political) impetus for tort and products liability reform in the courts, state legislatures and Congress. Gerald L. Shargel, a Practitioner-in-Residence at Brooklyn Law School, recently wrote in a Daily Beast article titled Scalding Takedown on Tort Reform saying that the film maker Susan Saladoff shows that the aim of the “reformers” is to shield large corporations and medical professionals from being held accountable.

The Sixth Circuit Court of Appeals ruled in Thomas More Law Center v. Obama that the government can require a minimum amount of insurance for Americans. It is the first ruling by a federal appeals court on the constitutionality of the individual mandate for insurance coverage. The lead plaintiff, based in Ann Arbor, MI, argued that the “Patient Protection and Affordable Care Act” was unconstitutional and that Congress overstepped its powers when it imposed a penalty for failing to comply with the mandate. The individual plaintiffs contended that if they do not purchase health insurance and are forced to pay a tax, it would go into the general fund where it could be used to fund abortions. They object to being forced to contribute to the funding of abortions.



The District Court for the Eastern District of Michigan at 720 F. Supp. 2d 882 (2010) dismissed the claim that the minimum coverage provision is unconstitutional. The 2-1 ruling by the Circuit Court, written by Judge Boyce F. Martin, appointed by former President Jimmy Carter, and joined by Judge James L. Graham, appointed by former President Ronald Reagan, affirmed the lower court saying “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance.” The ruling went on to say:

No matter how you slice the relevant market — as obtaining health care, as paying for health care, as insuring for health care — all of these activities affect interstate commerce, in a substantial way. Start with obtaining medical care. Few people escape the need to obtain health care at some point in their lives, and most need it regularly… Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate Congress.

In choosing how to regulate this group, Congress also did not exceed its power. The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisit income to pay now rather than later for health care…Call this mandate what you will — an affront to individual autonomy or an imperative of national health care — it meets the requirement of regulating activities that substantially affect interstate commerce…

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No — for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. All three methods of paying for medical care (private insurance, public insurance and self-insurance) meet this modest requirement. And if Congress may prescribe rules for some of these methods of payments, as plaintiffs seem to agree, it is difficult to see why these words prohibit it from doing the same for all three….

Second, the promise offered by the action/inaction dichotomy — of establishing a principled and categorical limit on the commerce power — seems unlikely to deliver in practice. Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists.

An appeal of the ruling to the full circuit court to review the case is likely as is review before the US Supreme Court.



The BLS Library has in its collection Patient Protection and Affordable Care Act by CCH (Call #KF6276.6201 .A2 2010b) which has the full text of the Act. Earlier this year, Brooklyn Law School debate “Is ‘Obamacare’ Unconstitutional?” featured Professor Nelson Tebbe, an expert in constitutional law, and Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

Two recent cases, one from NY Supreme Court in Broome County, and one from the US Court of Appeals for the Third Circuit, have allowed defamation lawsuits brought by plaintiffs who claim to have been falsely alleged to be gay. In Yonaty v Mincolla, an unreported case from Broome County Supreme Court, Judge Phillip R. Rumsey, citing Stern v Cosby, 645 F. Supp. 2d 258 (SDNY 2009) ruled that, in the absence of a definitive ruling by the Court of Appeals, New York law still regards a “false imputation of homosexuality” as being defamatory per se. That case involved a defendant who knew the plaintiff’s girlfriend and heard that the plaintiff was gay or bisexual and was “actively engaging in homosexual conduct”. Being concerned that the plaintiff’s conduct “posed a danger” to the girlfriend, the defendant met with a third woman and asked her to tell the girlfriend’s mother, who could then warn her daughter who on hearing the rumor later terminated her relationship with the plaintiff.

The Third Circuit case, Murphy v. Millennium Radio Group LLC, 2011 WL 2315128 (3rd Cir. 2011), dealt primarily with claims for copyright infringement and a violation of the Digital Millennium Copyright Act (“DMCA”) but also had a claim that the defendants had derogatorily and falsely inferred that the plaintiff, a heterosexual married father of three children, was a homosexual. The case arose out of the use of a photograph of two radio shock jocks that the plainitff had taken for New Jersey Monthly magazine, which named the pair as the state’s top shock jocks for a “Best of 2006” issue. For more, see the Law.com article Shock Jocks’ Homosexual Inferences Not Defamatory, Judge Rules which begins by saying “In today’s society, at least in New Jersey, homosexuality has lost its stigma, so a false statement that someone is gay isn’t slanderous, a federal judge in Trenton said Wednesday in dismissing a suit against two radio shock jocks.” The 3rd Circuit has now reversed the dismissal saying that the judge read the DCMA too narrowly and failed to allow discovery on the defamation claim. See Copyright, Defamation Suit Against N.J. 101.5 Is Reinstated on Appeal.

For more on the issue of whether calling someone gay is defamatory, see Rachel M. Wrightson (Brooklyn Law School Class of 2003), Gray Cloud Obscures the Rainbow: Why Homosexuality as Defamation Contradicts New Jersey Public Policy to Combat Homophobia and Promote Equal Protection, 10 J.L. & Pol’y 635, 640-41 (2002).

HeinOnline has a new database in its collection, the History of International Law Collection. Researchers at the Brooklyn Law School Library can use it to find historic books and articles on subjects such as the Law of the Sea, War and Peace, the Nuremberg Trials, International Arbitration or the Hague Conferences and Conventions, For more information, see HeinOnline’s brochure and list of titles.

New York City Bar and New York Law Journal hosts its annual welcoming reception in honor of summer associates, their mentors and colleagues. Guests can mingle with other summer associates and attorneys, enjoy drinks and hors d’oeuvres, and have the chance to win great door prizes. Guest must be 21+.

Thursday, June 23, 2011 6-8 pm

This event is free, register online or by calling (212) 382-6665.

For group registrations, please email your contact information and list of attendees to membershipservices@nycbar.org.