Author Archives: Harold O'Grady

May New Book List: Fact and Fiction

The Brooklyn Law School Library May 1, 2017, New Book List is now online and has 52 print titles and 31 eBook titles. The subject areas consist of law, history and even fiction.   Subjects are Executive orders — United States – Corporate governance — United States; Judicial power — United States; Solo law practice — United States; War crime trials — History — 20th century; Sexual rights — United States — History; Scalia, Antonin; Trial practice — United States. Like law school libraries throughout the country, the BLS Library has scholarly material subjects for legal researchers in its collection and on the New Book List.

Consider these new acquisitions:

Calling the Shots: The President, Executive Orders, and Public Policy (Call No. KF5053. G58 2017) by Daniel P. Gitterman, Professor of Public Policy at University of North Carolina in Chapel Hill. This 288-page book explains how modern presidents have used the power as purchaser to require federal contractors to pay a minimum wage and to prohibit contracting with federal contractors that knowingly employ unauthorized alien workers. This book is very timely as that author believes that the current administration will likely use a mix of executive orders and memorandums. Unlike executive orders, memorandums aren’t thoroughly recorded by the government. He says that “Memorandums go below the radar much more and are harder for, I think, the news media and the public to track”

Dear Chairman: Boardroom Battles and the Rise of Shareholder Activism (Call No. HD2744. G73 2015) by Jeff Gramm, Adjunct Associate Professor of Finance and Economics at Columbia Business School. In 291 pages, the book gives a rich history of shareholder activism that has been described as “a grand story” and an “illuminating read” by the Wall Street Journal, “a revelation” by the Financial Times, and “an excellent read” by Andrew Ross Sorkin at the New York Times. Last month, the author presented a Book Talk sponsored by the Center for the Study of Business Law & Regulation at Brooklyn Law School. For details, see this link.

The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Call No. KF8745.S33 D67 2017) by David M. Dorsen, a Washington lawyer with Sedgwick, LLP. In 377 pages, the book by a close friend of Scalia describes the subject as a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammeled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions.

Fiction is also on the New Book List. See, for example, The Advocate’s Daughter: A Thriller (Call No. PS3606.R4228 A67 2016) by Anthony J. Franze who tells a story of family, power, loss, and revenge set within the insular world of  Washington, D.C. The story focuses on Sean Serrat, a Supreme Court lawyer on the short list to be nominated to the U.S. Supreme Court. His daughter, Abby, a talented and dedicated law student, goes missing and her lifeless body is found in the library of the Supreme Court. Her boyfriend, Malik Montgomery, a law clerk at the high court, is immediately arrested. The media frenzy leads to allegations that Malik’s arrest was racially motivated, sparking a national controversy. While the Serrat family works through their grief, Sean begins to suspect the authorities arrested the wrong person. Delving into the mysteries of his daughter’s last days, Sean stumbles over secrets within his own family as well as the lies of some of the most powerful people in the country. People will stop at nothing to ensure that Sean never exposes the truth.

 

History and Future of NAFTA

The history of the North American Free Trade Agreement (NAFTA) began in 1980 when candidate Ronald Reagan proposed a North American common market in his presidential campaign. The first move in creating NAFTA came when President Reagan made good on his campaign pledge and declared a North American common market as a future goal. During the early 1980s, with Mexico remaining aloof, Canada and the US signed a series of agreements that culminated in the Canada-US Free Trade Agreement in 1988. At this crucial juncture, Mexico signaled its willingness to join the negotiations and NAFTA talks began. On August 12, 1992, before the summer GOP convention, President George H.W. Bush initialed the deal. After losing the general election to William J. Clinton, Bush formally signed the treaty on December 17, 1992, saying during his Remarks on Signing the North American Free Trade Agreement “I’ve been privileged as Vice President and President over the past 12 years to be here on quite a few occasions, and I am so thrilled that this, the final one, is to sign the NAFTA agreement.”

As negotiated, the agreement was signed by the US, Canada, and Mexico, aiming to eliminate trade barriers among the three nations. Essentially, NAFTA was an extension of the Free Trade Agreement between Canada and the United States. Several other considerations beyond free trade under the scope of the NAFTA include intellectual property, telecommunications, and environmental protection. The treaty was to take effect on January 1, 1994, but ratification faced obstacles in the US Congress, especially from members of the Democratic Party. At the time of its ratification in Congress, more Republicans than Democrats supported NAFTA. With strong opposition by labor unions, a key ally for President Clinton was then-House Minority Whip (and later House Speaker) Newt Gingrich (R-Ga). Since NAFTA went into effect, bilateral trade between the US and Mexico amounts to more than $500 billion per year. The US is Mexico’s largest trading partner in merchandise (about 80% of its goods exports go to the US) while Mexico is America’s third-largest trading partner (after Canada and China).

NAFTA at 20Readers interested in learning more about NAFTA can review the Brooklyn Law School Library volume NAFTA at 20: The North American Free Trade Agreement’s Achievements and Challenges edited by Michael J. Boskin (Call No. HF1746 .N3326 2014), a Professor of Economics and senior fellow at Stanford University’s Hoover Institution. As chairman of the president’s council of economic advisers from 1989 to 1993, he helped initiate NAFTA. He writes that NAFTA was bold and controversial from the start. When first conceived, it was far from obvious that it would be possible given the circumstances of the times. Drawing from a December 2013 Hoover Institution conference on “NAFTA at 20,” his book brings together distinguished academics who have studied the effects of NAFTA with high-level policy makers to present a comprehensive view of the North American Free Trade Agreement. It looks at the conception, creation, outcomes so far, and the future of NAFTA from the perspective of economists, historians, and the policy makers in the words of those who participated in the negotiations and research. In the context of the fundamental economic and political transformation of North America, they discuss the trade, real wage, and welfare gains that NAFTA has produced for the United States, Mexico, and Canada, along with a review of the major energy markets within and among the three countries. The book has lessons from NAFTA for the future, both for NAFTA itself (if there is one) and for other trade agreements. The author stresses the importance of political leadership and providing information on the benefits of trade liberalization to voters and ill-informed politicians who cater to the fears of free trade opponents.

NAFTAThe BLS Library  has in its collection a related title, an e-book NAFTA and Sustainable Development: History, Experience, and Prospects for Reform (Treaty Implementation for Sustainable Development), edited by Hoi L. Kong and L. Kinvin Wroth. On the twentieth anniversary of NAFTA’s ratification, the book outlines the scope of NAFTA and its impact on environmental issues and paths to reform. Analyzing the impact of the NAFTA on bio-engineered crops in Mexico, marine environmental effects, climate change, and indigenous rights, the book is an important contribution to the global conversation on international trade agreements and sustainable development.

New Book List: Working Class Whites

Brooklyn Law School Library’s April 2017 New Book List is now available at this link. There are 65 new entries, 45 print titles and 20 eBook titles. The subject areas cover a broad range of topics including both law, history and social aspects of American life, e.g., Women lawyers — United States – Biography; Law clerks — United States; Criminal procedure (International law); Extradition; Solitary confinement — United States; Trial practice — United States; Drone aircraft — Law and legislation — United States; Brooklyn (New York, N.Y.) – History; Law teachers — United States; Law reviews — Competitions — United States; Commercial crimes; Global Financial Crisis, 2008-2009; Police shootings — United States; Self-defense (Law) — Social aspects — United States. Among the titles related to law and legal education are the following:

White TrashThe BLS Library collection includes titles related to social aspects of American life. One such title from the New Book List that stands out is White Trash: The 400-Year Untold History of Class in America by Nancy Isenberg (Call No. HN90.S6 I84 2016). The author, an American historian and Professor of History at Louisiana State University, tells a rarely recounted story about a race, namely so-called “white trash”, a derogatory American English racial slur referring to poor white people, especially in the rural southern United States. The 460-page book has twelve chapters divided into three parts: Part I – To Begin the World Anew; Part II – Degeneration of the American Breed; and Part III – The White Trash Makeover.  The chapters in Part I include Taking out the Trash: Waste People in the New World; Benjamin Franklin’s American Breed: The Demographics of Mediocrity; Thomas Jefferson’s Rubbish: A Curious topography of Class; and Andrew Jackson’s Cracker Country: The Squatter as Common Man. Later chapters include Pedigree and Poor White Trash: Bad Blood, Half-Breeds and Clay-Eaters;  Cowards, Poltroons, and Mudsills: Civil War as Class Warfare; Thoroughbreds and Scalawags: Bloodlines and Bastard Stock in the Age of Eugenics; Forgotten Men and Poor Folk: Downward Mobility and the Great Depression; The Cult of the Country Boy: Elvis Presley, Andy Griffith, and LBJ’s Great Society; Redneck Roots: Deliverance, Billy Beer, and Tammy Faye; Outing Rednecks: Slumming, Slick Willie, and Sarah Palin; and lastly, America’s Strange Breed: The Long Legacy of White Trash.

HillbillyThe BLS Library has ordered for its collection a related title, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (Call No. HD8073.V37 A3 2016) by J. D. Vance, a graduate of Yale Law School who grew up in the Rust Belt and the Appalachian town of Jackson, Kentucky. Vance offers a look at the struggles of America’s white working class and tells his own story of upward mobility with a discussion about the loss of the American dream for a large segment of the country. The books by Isenberg and Vance are reviewed in Fanfares for the Common Man by Phil Christman, Volume 19, Issue 1 of The Hedgehog Review. 19.1 (Spring 2017 available via OneSearch to the BLS community.

Episode 100 – Conversation with BLS Prof David Reiss

Episode 100 – Conversation with BLS Professor David Reiss.mp3

This conversation with Brooklyn Law School Professor David Reiss focuses on his recent article Gorsuch, CFPB and Future of the Administrative State. Prof. Reiss talks about the impact that U.S. Supreme Court nominee Judge Neil Gorsuch would have on the future of administrative law and, in particular, on federal consumer protection enforcement if he is confirmed. Prof. Reiss reviews the case PHH v. Consumer Financial Protection Bureau which the United States Court of Appeals, District of Columbia Circuit decided last year. It is likely the case will be appealed to the Supreme Court. If so, Justice Gorsuch may vote to curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, Prof. Reiss believes that, given previous rulings by Judge Gorsuch in cases dealing with administrative law, a Justice Gorsuch will be a skeptic of agency action and will support greater judicial review of agency actions.

Deconstruction of the Administrative State?

The new administration in Washington vows to reduce federal regulations and Steve Bannon, the chief White House strategist, argues for a “deconstruction of the administrative state” and the possible dismantling of the New Deal. The argument for this retrenchment of regulatory law is that regulations are unnecessary and costly, detrimental to business and a hindrance to the growth of jobs in the economy. Recently C-SPAN aired the 1982 PBS documentary The Regulators: Our Invisible Government which focused on regulation of air pollution in the national parks. Although dated, the film has current relevance as a teaching tool for law students and others interested in regulatory law as it details the process of turning general language in a 1977 amendment to the Clean Air Act into specific regulations. The 50 minute video tells the behind-the-scenes negotiations and debates between Environmental Protection Agency (EPA) regulators and environmental and industry interests. See video (also available at this link) below.

The Brooklyn Law School Library has in its collection two books with very differing views of the administrative state. The latest, Law’s Abnegation: From Law’s Empire to the Administrative State by Adrian Vermeule (available in print at Call No. KF5425.V47 2016 and electronically via ProQuest Ebook Central), is a theoretically informed and lawyerly interpretation of the law of the modern administrative state. The author demonstrates how legal doctrine really works by using cases familiar to most administrative lawyers. Law’s Abnegation can be read with and compared to Is Administrative Law Unlawful? by Philip Hamburger (Call No. K3400.H253 2014). The two books represent extreme views on the status of administrative law in America. Hamburger answers the title question of his book with a strong affirmative. Vermeule, who reviewed Hamburger’s book in his terse one-word title, No, 93 Texas Law Review 1547 (2015), follows up and expands on his views in his book.

Mass Incarceration and Prison Reform

war on crimeIn the past few years, there has been increased discussion of the growth in America’s prison population to more than 2 million Americans incarcerated, many of them drug offenders, for periods that seem far too long. Since the publication in 2010 of Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, there has been more scholarship on the topic of mass incarceration. In a title added last year to the Brooklyn Law School Library collection, From the War on Poverty to the War On Crime: The Making of Mass Incarceration in America by Elizabeth Hinton (Call No. HV9950 .H56 2016), the topic get detailed attention.

The author, an Assistant Professor at Harvard University and urban historian, argues that mass incarceration is not just a conservative backlash to the civil rights movement but an initiative of both of the major political parties. In the book, Hinton traces mass incarceration, often based on assumptions about the cultural inferiority African-Americans, back to the 1960s, from the administrations of John F. Kennedy and Lyndon B. Johnson to that of Ronald Reagan in the 1980s. The Democrats passed the The Juvenile Delinquency and Youth Offenses Control Act of 1961 which portrayed black youth as being in need of repair rather than justice. At the same time when President Johnson’s War on Poverty sought to foster equality and economic opportunity, his administration advanced initiatives rooted in widely shared assumptions about African Americans’ role in urban disorder.  Johnson called for a War on Crime in 1965 when he created the Office of Law Enforcement Assistance, which significantly increased federal involvement in militarizing local police. From the late 1960s starting with Richard Nixon’s law and order campaign to the 1980s administration of Ronald Reagan, crime control and incarceration dominated national responses to poverty and inequality as initiatives that were the full realization of the punitive transformation of urban policy implemented by both parties.

Locked inA search of the BLS Library OneSearch platform will lead readers to a recent review of Hinton’s book in the February 2017 issue of the American Journal of Public Health (Vol. 107 Issue 2) under the title Reckoning with the Rise of the Carceral State by David H. Cloud. For more on the topic, the BLS Library has ordered for its collection a new title, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John F. Pfaff, Professor of Law at Fordham Law School. The book describes a fractured criminal justice system, where many counties do not pay for the people they send to state prisons, and white suburbs set law and order agendas for more-heavily minority cities.

Law and the English Language

Lawyer'sLast year, the Brooklyn Law Library added to its collection The Lawyer’s Guide to Writing Well (3d ed.) by Tom Goldstein and Jethro K. Lieberman (Call No. KF250. G65 2016). This critically acclaimed book “should be in the office of every lawyer” says William Safire of the New York Times. In its 286 pages, the authors demystify legal writing, outline the causes and consequences of poor writing, and prescribe easy-to-apply remedies to improve it. Reflecting changes in law practice over the past decade, this revised edition includes new sections around communicating digitally, getting to the point, and writing persuasively. It also provides an editing checklist, editing exercises with a suggested revision key, usage notes that address common errors, and reference works to further aid your writing. This guide is an invaluable tool for practicing lawyers and law students.

Chapters are: Why Lawyers Write Poorly — Does bad writing really matter? — Don’t make it like it was — The Practice of Writing — Ten steps to writing it down — Of dawdlers and scrawlers, pacers and plungers: getting started and overcoming blocks — The technology of getting it down: from quill pens to computers — Lawyers as publishers: words are your product — Getting to the Point — Writing persuasively for your audience: tell your audience the point — Writing the lead — Revising for Clarity and Luster — Form, structure, and organization — Wrong words, long sentences, and other mister meaners — Revising your prose — Making your writing memorable.

AnimalBooks and essays about the art of writing well go back a long time. In 1947, English novelist, essayist, journalist, and critic George Orwell (born Eric Arthur Blair 1903 – 1950) and author of Animal Farm: A Fairy Story and Nineteen Eighty-Four, his most famous works, wrote an essay titled Politics and the English Language. Although the essay addresses the decline of language in political and economic contexts, Orwell, in the closing paragraphs, offers rules that cover effective legal writing as well. They are:

  • Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
  • Never use a long word where a short one will do.
  • If it is possible to cut a word out, always cut it out.
  • Never use the passive where you can use the active.
  • Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
  • Break any of these rules sooner than say anything outright barbarous.

Emoluments Clause: Constitution’s Least Litigated

EmolumentsArticle I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision   Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.

Kindness Chain for the Holidays and Every Day

As the holiday season approaches, law librarians (including this writer), faculty, students and staff at Brooklyn Law School and elsewhere look forward to the end of final exams so they can travel and join family and friends in celebration of the December holidays. From Christmas to  New Year’s Day, from Hannukah to Eid Milad-un-Nabi or the Winter Solstice, many of us will celebrate according to our own tradition. Not all of us will be so fortunate as many people will be working during the holidays to keep the world running while we celebrate the holidays: cab drivers, garage assistants, healthcare workers, carers, police men and women, airline staff, members of the armed forces. All of these people deserve a massive thank you for keeping things going while we sit at home enjoying holiday cooking. So take a minute away from your family and friends and reach out to someone who is working on Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day. All of us can use a random act of kindness not only during the holidays but every day.

Revenge Porn: Taking Trolls to Court

An article in a recent issue of The New Yorker features Brooklyn Law School alum Carrie Goldberg, Class of 2007, as a leader in the crusade against non-consensual pornography, also called “revenge porn.” A founder of the Brooklyn firm C.A. Goldberg, PLLC, she is at the forefront of a movement to use both new and existing laws to penalize individuals who share compromising photos and videos of others without their consent. From her practice not far from the Law School, Goldberg assists clients like Norma, whose story of harassment by a former partner who shared explicit photos of her on the internet is chronicled in the article. Author Margaret Talbot calls Goldberg “a new kind of privacy champion,” detailing Goldberg’s many accomplishments in this new field, from successful prosecutions of revenge porn perpetrators to a major role in an activist campaign to get social media platforms and search engines to ban revenge porn. The article notes Goldberg’s recent hire of a fellow Brooklyn Law School graduate, Lindsay Lieberman, Class of 2011. Earlier this year, Goldberg spoke at the White House to members of the Task Force to Protect Students from Sexual Assault about sexual assault in k-12 with the crew at SurvJustice, a national not-for-profit organization that increases the prospect of justice for survivors by holding both perpetrators and enablers of sexual violence accountable.

hate crimesThe Brooklyn Law School Library collection included Hate Crimes in Cyberspace by Danielle Keats Citron (Call No. HV6773.15.C92 C57 2014). The book covers the subject of trolling or aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. The author exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs. The book rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.