Author Archives: Harold O'Grady

Cheating “Everyone Does It”

CheatingThe Brooklyn Law School Library New Books List for December 1, 2017 has 49 print titles and 28 e-book titles. Subjects range from criminal justice and judicial error; same-sex marriage; writing skills of US Presidents; history of New York, NY; impeachment of US Presidents; prisons and privatization; and mourning customs, to name a few. Cheating: Ethics and Law in Everyday Life by Stanford Law School Professor Deborah L. Rhode, is one e-book worth reading as it deals with law and ethics and cheating. Cheating, a phenomenon so entrenched in everyday American life, costs close to a trillion dollars annually. Why it remains a serious problem is that it is often excused by the statement that “Everyone does it”. The more that individuals believe that cheating is widespread, the easier it is to justify. If Americans are cheating more, they appear to be worrying about it less. Rhode, rejects the “everybody does it” rationale and sees the ubiquity in deceit as uncomfortably close to a universal human truth. She offers the only recent comprehensive account of cheating in everyday life and the strategies necessary to address it. Because cheating is highly situational, Rhode drills down on its most common forms in sports, organizations, taxes, academia, copyright infringement, marriage, and insurance and mortgages.

The book reviews needed strategies to address the pervasiveness of cheating. Efforts need to begin early, with education by parents, teachers, and other role models who can display and reinforce moral behaviors. Organizations need to create ethical cultures, in which informal norms, formal policies, and reward structures all promote integrity. People need more moral triggers to remind them of their own values. Also important are more effective enforcement structures, including additional resources and stiffer sanctions. Rhode, the founding president of the International Association of Legal Ethics, former president of the Association of American Law Schools, and former founding director of Stanford’s Center on Ethics, notes that cheating has evolved with time. Technology has transformed some forms of cheating with filesharing, downloading of music on the internet, or plagiarism, lifting stuff off the internet, whole sites on the internet that enable people to just cut and paste their term papers and have somebody else even write their paper on plagiarism. She states in an interview with Tavis Smiley that over half of taxpayers admit to cheating sometimes on their forms. 80% of high school students will admit that they’ve cheated in class. The pervasiveness and the persistence of it is what should give us pause because there’s a price tag to it.

New York as Sanctuary City

SanctuaryEarlier this year, the NYC Council passed legislation, Introduction 1568-2017, a bill to prohibit City agencies from partnering with the U.S. Department of Homeland Security to enforce federal immigration laws. The bill would prohibit the use of City resources, property, and information obtained on behalf of the City in furtherance of federal immigration enforcement. It would also require any requests for assistance by federal immigration enforcement agencies to be documented and later compiled into an anonymized report sent quarterly to the Council. It passed by a vote of 41-4 so now city employees are banned from spending any time on duty or using city property to assist in enforcing immigration laws. The move makes legally binding a policy the city has already followed of bowing out of assisting the feds in finding undocumented immigrants for deportation. Another bill, Introduction 1558-2017 bars the Department of Probation from handing over undocumented immigrants in response to requests from the feds. It expands rules that previously applied to the NYPD and city jails, which say officials cannot honor detainers from the feds unless the person they seek has been convicted of any of 170 serious crimes. “We will not waste city resources to help immigration authorities destroy our families,” said Council Speaker Melissa Mark-Viverito.

The defiant step followed President Trump’s threat to strip sanctuary cities of federal funds, saying they were letting potentially dangerous illegal immigrants go free instead of helping the feds. Earlier, the Justice Department gave New York and three other cities a “last chance” warning that the feds believe they are violating laws requiring cooperation, saying it would nix a $4.3 million grant without proof of compliance. The city has only reinforced its policy. “We’re taking a serious stance and saying that New York is a sanctuary city. We are not going to held federal authorities find immigrants in this city that are no threat to the resident of New York City,” said Councilman Rafael Espinal (D-Brooklyn), one of the sponsors.

Meanwhile the attempts of the Trump administration to crack down on sanctuary cities has met new obstacles as US District Court Judge William Orrick issued a permanent injunction blocking an executive order seeking to strip so-called sanctuary cities of federal funding. The ruling is a major setback to the administration’s attempts to clamp down on cities, counties and states that seek to protect undocumented immigrants from deportation by federal authorities. The ruling is the latest instance in which a federal judge has stood in the way of the president’s effort to implement his policies on immigration, joining rulings that have blocked different portions of the travel ban. Monday’s ruling, which followed lawsuits from two California counties, nullifies the January executive order on the matter, barring the administration from setting new conditions on spending approved by Congress. In the judge’s words “The Executive Order threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on which the Counties rely. The threat is unconstitutionally coercive.”

Episode 101 – Conversation with Prof. Heidi Brown

Episode 101 – Conversation with Prof. Heidi Brown.mp3

Brooklyn Law School Library’s New Books List for November 1, 2017 has 40 print titles and 36 eBook titles. Subjects cover a wide range including Alexander Hamilton, administrative agencies, bar examinations, Christian lawyers, deportation, Donald Trump, Sharia law, technology and the law, and more.

brownOne title stands out: The Introverted Lawyer: A Seven Step Journey Toward Authentically Empowered Advocacy (Call No. KF300.B75 2017) by Heidi K. Brown, Associate Professor of Law and Director of the Legal Writing Program at Brooklyn Law School. The book explains the differences among introversion, shyness, and social anxiety and how each manifest in the legal context. It describes how the extrovert bias in law school and practice detrimentally can impact quiet individuals, fueling enhanced anxiety in a vocation already fraught with mental health issues. It also explores how quiet law students and lawyers offer greatly needed proficiency to the legal profession and presents a seven-step process to help introverted, shy, and socially anxious individuals amplify their authentic lawyer voices, capitalize on their natural strengths, and diminish unwarranted stress.

Professor Brown joins us today in a conversation that describes her journey as an attorney who did not fit the mold of the domineering litigator. She discusses her own introversion and her struggles with shyness and social anxiety. In addition to offering specific techniques for embracing the power of introversion, the episode begins with a frank discussion about depression and goes on to show how even extroverted lawyers can benefit from her tips to the introvert.

Let My People Dance

After years of efforts to repeal New York City’s outdated Cabaret Law, the City Council is on the verge of repeal. The New York Times reports today that After 91 Years, New York Will Let Its People Boogie. The “no dancing” law is set to be struck down with a new bill tomorrow according to a report. Councilman Rafael Espinal told the newspaper that he has the 26 votes needed to pass a repeal through City Council, as well as Mayor Bill de Blasio’s approval. In 1926, while liquor was bootlegged and Jazz was shaking things up in Harlem, New York City instituted the Cabaret Law that required establishments serving food or drink to obtain a separate license before permitting any dancing or live music on their premises. This law successfully sought to police and restrict the interracial mixing happening in dance clubs uptown. Almost 100 years later, though times and racial attitudes have changed, the Cabaret Law is not only still in effect and enforced, but contemporary zoning regulations effectively make dancing illegal in large parts of the city.

Drafted by Brooklyn Council Member Rafael Espinal (D-37), first elected to the New York State Assembly at the age of 26 and currently in his first term as a council member, the bill will address a pernicious, racially motivated law that has followed “fringe” musical scenes in the city for nearly a century.

gigsThe Brooklyn Law School Library has in its collection Gigs: Jazz and the Cabaret Laws in New York City (Call No. PN2277.N5 C51 2005) by Paul Chevigny, an attorney and former civil rights activist, who recounts his efforts to repeal New York’s Cabaret Law. The book is also available as an e-book. Gigs provides a fascinating account of a unique victory for musicians against repressive entertainment licensing laws. It provides a much-needed study of the social, political, cultural and legal conditions surrounding a change in law and public attitudes toward vernacular music in New York City.

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.