Author Archives: Harold O'Grady

New Tax Titles at BLS

taBrooklyn Law School Library’s New Books List for October contains 10 print titles and 20 eBook titles. Among the print items are two on taxation both authored by BLS Professors. The first is Federal Taxation of Corporations and Corporate Transactions (KF6464.D43 2017) by Steven Dean and Bradley T. Borden. This first edition of Federal Taxation of Corporations and Corporate Transactions provides a comprehensive examination of tax principles with a unique practice-oriented approach to help students become practice ready with skills that they have developed in a setting that reflects practice in the real world. The casebook introduces students not only to transactional tax practice and the federal tax penalty regime, but also to the rules of professional ethics and the specific rules that govern professionals who practice tax law. It features an array of Deal Downloads that breathe life into complex material, presenting high-profile transactions involving Amazon, Apple, Ford and others.

LLCThe second title is Taxation and Business Planning for Partnerships and LLCs: 2017-2018: Client File: DD Pizza LLC (operating partnership) by Bradley T. Borden (Call Number KF6452.B673 2017). The materials in this Client File provide real-word problems, documents, and financials that direct the study of partnership taxation. They are an ideal accompaniment to partnership tax casebooks, especially the author’s own Taxation and Business Planning for Partnerships and LLCs. This first edition of the Client File includes memoranda and practice materials. It also includes recent developments that will not be in most casebooks. The Client File creates a practice setting that is ideal for studying issues that transactional tax attorneys’ clients face regularly.

The book is uniquely designed to help students become practice-ready with skills that they have developed in a setting that reflects actual practice. This new partnership tax casebook has several key features, including an accompanying client file created to help students learn the law in a practice-like setting. This comprehensive treatise-like casebook includes background information on non-tax topics, such as basic accounting and finance, concepts related to debt, and state-law entity transactions, as well as a general review of basic tax concepts that come up through the course of studying partnership taxation. The first edition of Taxation and Business Planning for Partnerships and LLCs also includes rules of conduct for attorneys and practice before the IRS.

The Chickenshit Club

chickenshitThe Brooklyn Law School Library has placed an order for The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Call No. KF9351.E37 2017) by Pulitzer Prize–winning journalist Jesse Eisinger. The book is a blistering account of corporate greed and impunity, and the reckless, often anemic response from the Department of Justice. The book asks why no bankers were put in prison after the financial crisis of 2008 and why CEOs seem to commit wrongdoing with impunity. The problem goes beyond banks deemed “Too Big to Fail” to almost every large corporation in America—to pharmaceutical companies and auto manufacturers and beyond. Eisinger starts his account with a story that gives the book its title. In the early 2000s, James Comey was the U.S. Attorney in charge of the most important local branch of the Department of Justice, the Southern District of New York, whose jurisdiction covers Wall Street. At Comey’s first meeting with the prosecutors on his team, he asked who among them had never lost a case. Many proudly raised their hands. “My friends and I have a name for you guys,” he said. “You are members of what we like to call the Chickenshit Club.” Comey was challenging them to be aggressive, to risk losing. A character-driven narrative, the book tells the story from inside the Department of Justice. The complex and richly reported story spans the last decade and a half of prosecutorial fiascos, corporate lobbying, trial losses, and culture shifts that have stripped the government of the will and ability to prosecute top corporate executives.

The book begins in the 1970s, when the government pioneered the notion that top corporate executives, not just seedy crooks, could commit heinous crimes and go to prison. The book travels to trading desks on Wall Street, to corporate boardrooms and the offices of prosecutors and F.B.I agents. These revealing looks provide context for the evolution of the Justice Department’s approach to pursuing corporate criminals through the early aughts and into the Justice Department of today. Exposing one of the most important scandals of our time, The Chickenshit Club provides a clear, detailed explanation as to how our Justice Department has come to avoid, bungle, and mismanage the fight to bring these alleged criminals to justice.

A more extensive book review by Thomas Fox can be found at JD Supra at this link. Fox also conducted an interview of Jesse Eisinger and Paul Pelletier, a key source for the book, at this link.

On Thursday, November 2, 2017, Cardozo School of Law will host a free event where the author will discuss his book. It will be held from 6:00 pm – 8:00 pm in the Third-Floor Lounge at 55 5th Avenue, New York, NY. Register at this link if you want to attend.

Constitution at 230 Years Old

The US Constitution was adopted 230 years ago, on September 17, 1787. Its words are as vital today as when the founders agrees that the Constitution would be sent to the Confederation Congress to start the ratification process with the states. It words are invoked daily in controversies over free speech, gun rights, religious expression, the separation of powers, states’ rights, due process of law and the exercise of individual liberties.

Yet, as we mark Constitution Day in accordance with 36 U.S.C. § 106 (2012) (this year, the day is observed on Monday, September 18th), Americans have an uncertain understanding of what the document says, per a recent poll by the Annenberg Public Policy Center of the University of Pennsylvania. The annual Annenberg Constitution Day Civics Survey finds that:

  • More than half of Americans (53 percent) incorrectly think it is accurate to say that immigrants who are here illegally do not have any rights under the U.S. Constitution;
  • More than a third of those surveyed (37 percent) can’t name any of the rights guaranteed under the First Amendment;
  • Only a quarter of Americans (26 percent) can name all three branches of government.

immigrant

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Why should this matter? it is difficult to safeguard constitutional rights without understanding what they are. The continued vitality of our democracy is dependent upon an informed citizenry. Understanding the history of the Constitution and its amendments will assist all of us in more fully appreciating these rights and responsibilities as they have evolved over time. Moreover, such understanding will ensure that these rights will continue to be exercised, valued, and cherished by future generations.

The founders wanted to make certain that the federal government was limited in powers  to those specifically enumerated in the constitution. How have we moved from these very clear and quite limited roles of the government? We see Presidents “passing laws” in a de facto fashion and refusing to enforce laws duly passed by Congress although sworn to do so. The Supreme Court has ruled on healthcare, education, abortion, and marriage. These powers are not enumerated the Constitution and are arguably reserved for the states. Why are we not concerned? The Founders, on this day, 230 years ago, signed a document making certain that our freedoms would not be taken away, but they did not anticipate that they might be given away. Happy Constitution Day. Celebrate it and protect it.

libertyFor more on the topic, see the Brooklyn Law School Library’s copy of The Blessings of Liberty: A Concise History of the Constitution of the United States by Michael Les Benedict (Call No. KF4541 .B443 2017). The text provides students with a history of American constitutional development in the context of political, economic, and social change. The author stresses the role that the American people have played over time in defining the powers of government and the rights of individuals and minorities. He covers important trends and events in US constitutional history, encompassing key Supreme Court and lower-court cases. The third edition is updated to include the election of 2000, the Tea Party and the rise of popular constitutionalism, and the rise of judicial supremacy as seen in cases such as Citizens United, the Affordable Care Act, and gay marriage.

Beyond “Thinking Like a Lawyer”

Beyond Legal ReasoningThe Brooklyn Law School Library New Books List for September is out with 32 print titles and 9 eBook titles. One of the items is Beyond Legal Reasoning: A Critique of Pure Lawyering (Call No. K212 .L57 2017) by Professor Jeffrey Lipshaw of Suffolk University Law School. In the book, the author addresses the concept of learning to “think like a lawyer,” one of the corners of legal education in the US and beyond. In his book, Professor Lipshaw provides a critique of the traditional views of “thinking like a lawyer” or “pure lawyering,” aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing examples from the intersection of real world law and business issues, the book argues the “pure lawyering” of traditional legal education is agnostic to either truth or moral value of outcomes. It offers a critique of pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.

This book offers a way of getting beyond merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book is of interest to scholars of legal education, legal language, and reasoning as well as professors who teach both doctrine and thinking and writing skills to 1Ls and for anyone interested in seeking a perspective on “thinking like a lawyer” beyond the litigation field. Law students considering a career in transactional law are well advised to read it right away. Law students should read the book after the 1L year. Lawyers and academics should read it at any time, and judges right away.

Free access to the book is available here.

Brooklyn Law School Employment

According to The National Jurist, Most Improved Employment Rates reports that Brooklyn Law School showed an increase in employment rates from 2011 to 2016 with an 18.1% improvement, ranking 14 out of the 50 law schools in the report. As the legal market continues to rebound and moves closer to pre-recession levels, law schools big and small are bolstering employer outreach efforts and reconsidering their curricula to strengthen graduate employability. Looking at this year’s employment statistics to find the most improved employment rates, The National Jurist took into consideration all forms of post-graduation employment. The employment rates were weighted, giving the most heft to full-time jobs that require bar passage. Other jobs, such as J.D.-advantage jobs and positions in other professions, received less weight.

To identify the law schools that have improved their employment rates the most, The National Jurist compared adjusted employment rates for the Class of 2011 with rates for the Class of 2016. To determine the adjusted employment rate, The National Jurist assigned differing weights to various employment statuses. Full time, long term jobs that require bar passage are the only positions that were given full weight. See the results in the chart below:

NYC Congregation Owns Touro Synagogue

TouroA recent article in the NY Times, New York Congregation Owns Oldest Synagogue in the U.S., 180 Miles Away, Court Rules, reports that a federal appeals court has ruled that Shearith Israel in New York actually owns the Touro Synagogue building in Newport. Shearith Israel, founded in Manhattan in 1654, is the oldest congregation. Touro Synagogue, in Newport, R.I., built in 1763, is the oldest synagogue building. Justice David H. Souter, the retired associate justice of the Supreme Court, wrote the opinion in Congregation Jeshuat Israel v. Congregation Shearith Israel for the First Circuit Court of Appeals in Boston. In it, he overturned a district-court ruling that the congregation that has worshiped for more than 130 years in the Touro Synagogue building, Jeshuat Israel, had control over the building and its objects. Now, what may be the country’s most historic synagogue building is officially owned by a group 180 miles away.

Shearith Israel was founded in the Colonial period by 23 Spanish and Portuguese Jews in what is now Lower Manhattan. Since 1897, the Orthodox congregation has met in a Tiffany-designed neo-Classical building on 70th Street and Central Park West. When Newport’s Jews faced persecution during the American Revolution, they fled the town and the synagogue building, many for New York. Without a congregation in Newport, Shearith Israel took control of the synagogue. Shearith Israel was historically Sephardic, while Jeshuat Israel was mostly Ashkenazi. Justice Souter reversed the trial judge order that sided with Jeshuat Israel. See earlier BLS Library blog post here. The three-judge panel of the 1st U.S. Circuit Court of Appeals relied on contract law and looked at the 1903 agreement and other contracts as it would in any other civil law case. Justice Souter put it delicately: “These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court’s plenary enquiry into centuries of the parties’ conduct by examining their internal documentation that had been generated without resort to the formalities of the civil law.”

Touro Synagogue holds an important place in the history of the nation’s commitment to religious liberty. In 1790, George Washington visited Touro and sent a letter to the congregation pledging America’s commitment to religious liberty. See the letter from Moses Seixas to President George Washington and the response from President Washington, both well worth the reading. Seixas was a first generation Jewish-American whose parents migrated from Lisbon, Portugal, to Newport. Seixas rose to prominence as warden of Newport’s Touro Synagogue of Congregation Jeshuat Israel.

Policing the Black Man

PolicingThe Brooklyn Law School Library’s August New Books List (24 print titles and 12 eBook titles) has among its titles an interesting one, Policing the Black Man: Arrest, Prosecution, and Imprisonment, (Call No. HV9950 .P64 2017). Edited by Angela J. Davis, professor of law at American University’s Washington College of Law, an expert in criminal law and procedure with a specific focus on prosecutorial power and racism in the criminal justice system, it is 352 pages. The book explores the many ways the criminal justice system impacts the lives of African American boys and men at every stage of the criminal process, from arrest through sentencing.  Essays range from an explication of the historical roots of racism in the criminal justice system to an examination of modern-day police killings of unarmed black men. The contributors discuss and explain racial profiling, the power and discretion of police and prosecutors, the role of implicit bias, the racial impact of police and prosecutorial decisions, the disproportionate imprisonment of black men, the collateral consequences of mass incarceration, and the Supreme Court’s failure to provide meaningful remedies for the injustices in the criminal justice system. This book is an enlightening must-read for anyone interested in the critical issues of race and justice in America.

The collection of eleven essays is from a variety of scholars and writers. Providing useful context, the editor points out that black males have never fared well when confronted by police and prosecutors across the U.S. For a couple of centuries, in fact, black men could rarely convince white authorities of the breadth and depth of the injustices. In recent decades, new technology, including smartphones and body cameras, combined with the sounding board of social media have removed doubt about the credibility of many victims. In the introduction, Davis invokes the names of numerous dead black males, placing special emphasis on the killing of Trayvon Martin five years ago by George Zimmerman. While soliciting the essays, Davis offered an expanded definition of the word “policing,” showing how much of the foundation of policing black males rests on racial profiling by law enforcement. In her powerful essay, law professor Renée McDonald Hutchins explains what the law does and does not say about racial profiling, how police agency policies are drafted in light of the law, and how the on-the-street practices of racial profiling sometimes violate both the letter and spirit of laws and policies. While many of the essays focus on the police, Davis focuses on her specialty, prosecutors, and how their untrammeled authority is a major part of the problems within the criminal justice system. While the essays lean toward narrating the problems rather than proposing comprehensive solutions, the final essay links multigenerational poverty of black males with violence and an absurd level of incarceration. Other contributors include Bryan Stevenson. His chapter, A Presumption of Guilt: The Legacy of America’s History of Racial Injustice, tells of an experience in Atlanta when a white police officer pulled a gun on him and threatened to “blow my head off.” He says “What threatened to kill me on the streets of Atlanta when I was a young attorney wasn’t just a misguided police officer with a gun, it was the force of America’s history of racial injustice and the presumption of guilt it created.”

Sexual Orientation and Title VII

There has been considerable commentary on the Justice Department’s filing of an amicus brief saying that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.” The DOJ filed the brief in the case of Donald Zarda, who filed suit against his former employer Altitude Express in a case that questions whether sexual orientation is included in Title VII’s protections. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Zarda was a skydiving instructor who said he was fired after disclosing his sexual orientation to a customer. He died in a skydiving accident before the case went to trial, and executors of his estate have continued the lawsuit on his behalf. The DOJ’s brief states “the sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts”. It concludes “Title VII does not prohibit discrimination because of sexual orientation.”

The question is, of course, not that simple and has been the subject of commentary for some time. See, for example, Sex and Sexual Orientation: Title VII after Macy v. Holder by Cody Perkins, 65 Administrative Law Review 427 (Spring 2013). This article examines the EEOC’s treatment of sexual orientation as somewhat convoluted. While there is binding precedent from the Commission that “Title VII’s prohibition of discrimination based on sex does not include sexual preference or sexual orientation”, it cites two decisions issued through the Office of Federal Operations indicating that discrimination based on sexual orientation is discrimination based on sex for Title VII purposes under a Hopkins sex stereotyping theory. See Veretto v. Donahoe, where the Office of Federal Operations found that discrimination against a man for marrying another man was a valid sex stereotyping claim, because it was discrimination based on the stereotype that “marrying a woman is an essential part of being a man,” and Castello v. Donahoe, where the Office of Federal Operations found that discrimination against a woman for being attracted to other women was a valid sex stereotyping claim under Title VII, because it was discrimination based on the stereotype that women should only be attracted to and have relationships with men. These decisions, while not binding on federal agencies, indicate that the EEOC intends to allow claims based on sexual orientation under a sex stereotyping theory under Title VII. While there may be no binding precedent from the EEOC stating that sexual orientation is covered under Tide VII, there is binding precedent regarding transgender people. In Macy v. Holder, the plaintiff, a police detective from Phoenix who was still presenting as a man had applied for and been given assurances that she would be hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). After going through steps in the hiring process and being told repeatedly that she would be hired, Ms. Macy disclosed to ATF that she was in the process of transitioning from male to female and was informed that the position she had applied for was no longer available due to budget constraints. Upon further investigation, Ms. Macy learned that the position had in fact been offered to someone else and filed a formal Equal Employment Opportunity complaint with ATF, alleging discrimination in hiring based on sex. When the agency failed to identify her claim as sex discrimination, instead creating a separate claim of “discrimination based on gender identity,” Ms. Macy appealed her case to the EEOC. In a reversal of its previous position, the full Commission held that “discrimination based on gender identity, change of sex, and/or transgender status” is discrimination “because of sex” under Title VII. In making this determination, the EEOC utilized two important theories: a traditional “sex stereotyping” theory and a new “per se because of sex” theory, both based on the Supreme Court’s decision in Hopkins.

hivelyMore recently, In April 2017, the en banc Seventh Circuit Court of Appeals overruled its own precedent and became the first Circuit to hold that discrimination on the basis of sexual orientation can constitute unlawful sex discrimination under Title VII. See Hively v. Ivy Tech. Cmty. College of Indiana, II, 853 F.3d 339, 351 (7th Cir. 2017) (overruling Hively v. Ivy Tech. Cmty. College of Indiana, I 830 F.3d 698, 709 (7th Cir. July 28, 2016).). All other Circuits that have addressed the issue have held sexual orientation is not protected under Title VII. The EEOC previously adopted the Controversiesposition in 2015 now taken by the Seventh Circuit. The Supreme Court and the Circuit Courts have held that Title VII protects employees who are discriminated against because they do not conform to the stereotype for their gender and this often may overlap with sexual orientation. For more on the subject, see Brooklyn Law School Library’s copy of Controversies in Equal Protection Cases in America: Race, Gender and Sexual Orientation (Controversies in American Constitutional Law) by Anne Richardson Oakes (Call No. KF4755 .C664 2015).

Tips for Bar Exam Stress

An interesting article, The Lawyer, the Addict, in last weekend’s New York Times was written by the ex-wife of a lawyer who died of an overdose. In investigating her husband’s drug use and death, the author found a legal profession with high rates of substance abuse. The article contained good news for law students showing that before they start law school, law students are healthier than the general population, both physically and mentally. Andy Benjamin, a psychologist and lawyer who teaches law and psychology at the University of Washington, says that “They drink less than other young people, use less substances, have less depression and are less hostile.” In addition, he said, law students generally start school with their sense of self and their values intact.

But, in his research, he said, he has found that the formal structure of law school starts to change that. Unfortunately, there is a culture of drinking in the profession that starts in law school. Addicted law students become addicted lawyers. Depressed law students turn into depressed lawyers, unless you get help. Rather than hew to their internal self, students begin to focus on external values, he said, like status, comparative worth and competition. This is where stress over taking the bar exam comes into play.

bar examBy now, students taking bar exams have done the hard work studying. Now it is time to perform. At this point, it is going to be difficult to memorize much more, so now is the time to focus on practice tests and the art of taking the test, the actual process, and your pace. Spend your time wisely – not cramming in more random facts you probably won’t recall anyway. Don’t forget to breathe! Take the time to meditate, so you can clear your head which will allow your thoughts to become better organized. This will serve you well in the week leading up to the bar exam. Start each morning meditating, allowing your brain to be calmed and soothed. Not only will this help in the week before the bar, studies show that people who meditate make better complex decisions. Just what you need to answer the complex bar exam questions!  So, when you take the exam, and you read that question that seems to be a trusts and estates question, or wait, is it a dissolution question? Stop, breathe, and think!  Allow yourself just a minute to breathe in deep, clear your mind, and breathe out. Re-read the question, and do what you are well trained to do at this point – apply the law! Do this anytime you hit a panic-point during the exam.

zenOn the day before the exam, relax. It is not the time to hit the other bar. Relax and do something enjoyable. Check out from the Brooklyn Law Library collection the e-book titled The Zen of Passing the Bar Exam by Chad Noreuil, the best supplemental bar exam mindset book written. See a movie, eat a good meal, and understand that a few more hours of study are not going to change much. You are as ready as you are right here, right now. And finally, if you don’t pass the exam, remember that it is not the end of your world. Lots have taken, lots have not passed, and lots have re-taken. They have become amazing lawyers and judges and had fantastic careers. Your test score will not matter forever. The great news is that you can take it again. If the stress is overwhelming and you feel you are at the end of your rope, call the Lawyer Assistance Program in your state. They are trained to meet with you and will try to help you through the rough patch. If more professional help is needed, they will guide you. If during your exam preparation you find yourself becoming overwhelmed, take a minute (HALT) and think about whether you are also experiencing hunger, anger, loneliness, or tiredness. If so, you have permission to attend to your self-care and try to remediate the negative feelings. Taking a break, accepting your feelings and needs, and attending to self-care will likely make you more productive overall.

July New Books List and Impeachment

Brooklyn Law School Library’s New Books List for July 1, 2017 has 59 print titles and 30 eBook titles. Many of the titles deal with racial discrimination in the criminal justice administration and elsewhere, for example, He Calls Me By Lightning: The Life of Caliph Washington and the forgotten Saga of Jim Crow, Southern Justice, and the Death Penalty by S Jonathan Bass (Call No. E185.93. A3 B37 2017); Caught: The Prison State and the Lockdown of American Politics by Marie Gottschalk (Call No. HV9471. G667 2016); Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World by Andrew T. Fede (E-Book); Killing the Black Body: Race, Reproduction, and the Meaning of Liberty by Dorothy Roberts (Call No. HV6533.L8 M37 2017); and Unequal: How America’s Courts Undermine Discrimination Law by Sandra F. Sperino and Suja A. Thomas (Call No. KF4755 .S965 2017).

ImpeachmentMore controversial is The Case for Impeachment by Allan J. Lichtman (Call No. KF5076.T78 L53 2017). Lichtman made headlines when he predicted that Donald J. Trump would defeat the heavily favored Democrat, Hillary Clinton, to win the presidential election. His latest book lays out the reasons Congress could remove Trump from the Oval Office: his ties to Russia before and after the election, the complicated financial conflicts of interest at home and abroad, and his abuse of executive authority. The book offers a fascinating look at presidential impeachments throughout American history, including the often-overlooked story of Andrew Johnson’s impeachment, details about Richard Nixon’s resignation, and Bill Clinton’s hearings. Lichtman shows how Trump exhibits many of the flaws (and more) that have doomed past presidents. As the Nixon Administration dismissed the reporting of Bob Woodward and Carl Bernstein as “character assassination” and “a vicious abuse of the journalistic process,” Trump has attacked the “dishonest media,” claiming, “the press should be ashamed of themselves.” Historians, legal scholars, and politicians alike agree: we are in politically uncharted waters—the durability of our institutions is being undermined and the public’s confidence in them is eroding, threatening American democracy itself. Most citizens—politics aside—want to know where the country is headed. Lichtman argues, with clarity and power, that for Donald Trump’s presidency, smoke has become fire.