Author Archives: Harold O'Grady

Chief Justice Earl Warren Biography

Today marks 125 years since the birth of Earl Warren, the 14th Chief Justice of the US Supreme Court, in Los Angeles, California. Warren’s tenure on the Court was from 1953 when President Dwight D. Eisenhower nominated him until his retirement in 1969. Earl Warren had enormous impact on the political and legal landscape of twentieth century America. In his long public service, Warren pursued a Progressive vision of ethical and effective government that brought moral integrity to the nation’s public policies, especially in the fields of racial relations, criminal justice, and freedom of marital association. Warren’s path-breaking approach to legal writing and his management of the responsibilities of the Office of Chief Justice encouraged public understanding of and support for the work of the Supreme Court.

A graduate of the University of California at Berkeley, he was elected district attorney of Alameda County in 1925 and continued to be reelected through 1938, when he was elected Attorney General of California. In 1942, Warren ran successfully for Governor of California as a Republican and was reelected in 1946 and 1950. He ran for Vice President of the United States in 1948 on the Republican ticket with Thomas Dewey, who lost to Harry Truman, the Democratic incumbent.

The Warren Court issued a host of notable decisions including decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that states are bound by the decisions of the Supreme Court and cannot ignore them (Cooper v. Aaron); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); the scope of the doctrine of incorporation in state criminal matters (Mapp v. Ohio, Miranda v. Arizona) was dramatically increased; reading an equal protection clause into the Fifth Amendment (Bolling v. Sharpe); holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Reynolds v. Sims); and holding that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses (Gideon v. Wainwright).

Warren wasWarren Chair of the Warren Commission on the Assassination of President Kennedy. Serious lapses in judgment and uncritical deference to authority regarding national security issues in the report have clouded his legacy. The Brooklyn Law School Library has in its collection Earl Warren and the Struggle for Justice by Paul Moke (Call # KF8745.W3 M65 2015), a highly readable biography that offers an updated and balanced appraisal of Warren’s leading social justice decisions and a liberal critique of his failings that provides new insights into Warren, the man, the jurist, and the leader.

First Woman Attorney before US Supreme Court

A Presidential Proclamation for Women’s History Month, 2016 states that “we remember the trailblazers of the past, including the women who are not recorded in our history books, and we honor their legacies by carrying forward the valuable lessons learned from the powerful.”

Rebels at the BarTo commemorate Women’s History Month, Brooklyn Law School Associate Librarian Linda Holmes has added some interesting titles in the display case on the first of the library opposite the elevator, including Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers by Jill Norgren (Call # KF367 .N67 2013). The book recounts the life stories of a small group of nineteenth century women who were among the first female attorneys in the United States. Beginning in the late 1860s, these pioneers, motivated by a love of learning, pursued the radical ambition of entering the then all-male profession of law. They desired recognition as professionals and the ability to earn a good living. One prominent early woman attorney was Belva Lockwood, born in New York State in the Niagara County town of Royalton on October 24, 1830. In 1879, a bill was passed in both houses of Congress and signed by President Rutherford B. Hayes allowing Lockwood to become the first woman to practice before the Supreme Court of the United States. On March 3, 1879, she became the first woman admitted to practice before the United States Supreme Court. One of her first actions was to nominate a black Southern colleague for admissions to the court.

In 1884, Lockwood was nominated for president of the United States by the National Equal Rights Party along with Harriet Stow as the vice presidential candidate. Running against James G. Blaine (Republican) and Grover Cleveland (Democrat) at a time when women were not allowed to vote, she received 4,194 votes. She ran for president again in 1888. Lockwood’s professional life focused on women’s rights and she helped women gain equal property rights and equal guardianship of children. She served as president of the Women’s National Press Association, commissioner of the International Peace Bureau in Berne, president of the White House chapter of the American Woman’s League, a senator for the District of Columbia Federal Women’s Republic, chairman of the committee on industrial police for the National Council for Women, and president of the National Arbitration Society of the District of Columbia. She died on May 19, 1917. In 1983 she was inducted into the National Women’s Hall of Fame and on June 18, 1986, the United States Postal Service issued a memorial stamp. For more on Lockwood, see the entry at the New York State Library at this link.

Securities Arbitration: Pros and Cons

Securities ArbitrationBrooklyn Law School Library has many titles on securities arbitration. The Practitioner’s Guide to Securities Arbitration by Jason R. Doss and Richard S. Frankowski (Call No. KF1070.5 .D67 2013), published by the American Bar Association, is the most recent in the collection. The book is easy to understand with the knowledge of the authors making it useful for law students and attorneys planning on practicing securities law. The book shows how customer disputes are litigated in the Financial Industry Regulatory Authority (FINRA) arbitration process. Investors who are victims of bad investment advice or financial fraud often do not understand how their money is invested or the associated risks of those investments. Surprisingly few cases are filed against the securities industry despite widespread investment abuses. The book discusses practices and procedures including defenses and gives information for mastering tactics used in FINRA arbitration. Sections include: Defining the players in a securities arbitration case; Time limitations and other deadlines; Common claims; Bringing and defending claims, arbitrators and motion practice; Discovery and hearing practice and procedures.

Arbitration of legal disputes has advantages and disadvantages. Proponents argue that it is a cheaper than litigation to resolve disputes. Arbitrators do not have big caseloads, resulting in quicker final decisions. They are selected by agreement of both parties, so that in many cases, no one party controls who the arbitrator will be. Appealing arbitration rulings is difficult, even if an arbitrator makes glaring mistakes. This finality can be a positive factor ending a dispute so the parties can move on. Arbitration eliminates time-consuming and expensive tools of litigation. Arbitration hearings do not take place in open court and transcripts are not part of the public record. This can be very valuable for parties in some cases.

Critics cite the cost factor can as a “con” as arbitration does not always reduce costs. Consumers question the fairness of arbitration over a minor issue that could be resolved in small claims court. Companies favoring arbitration are often familiar with specific arbitrators and the process in general. Arbitration hearings are not always faster than litigation. Depending on the terms in a contract, the location of the hearing may be inconvenient to the average consumer, raising costs and time off from work. Finality of arbitration rulings, even if an arbitrator has made a blatant mistake, can result in an unfair result with only a small chance that a court can correct it. With no jury, consumers see arbitration as unfair, leaving matters to an arbitrator, who plays the role of both judge and jury.

Another disadvantage is discussed in a Law360 article, FINRA Arbitration Beset with Unpaid Awards, Report Says, citing a recent report by the Public Investors Arbitration Bar Association (PAIBA) saying that nearly one third of awards won by investors in arbitration go unpaid by brokers. PAIBA is calling on FINRA to create a national recovery pool. The report strongly criticized FINRA’s lack of data on award payments, suggesting the self-regulatory organization should do more to protect investors. For the year 2013, the PIABA report said there were 75 awards issued in 2013 that went unpaid. The total awards to investors was $256,749,289, with $62.1 million of unpaid awards comprising 24.2 percent of the total. The reports asks FINRA to require firms to obtain insurance and meet more stringent capital requirements and have a recovery pool to pay investors if firms dodge payment which It said would be the “best, least expensive option” to satisfy unpaid awards for investors. The report concludes “Allowing one in three awards to go unpaid is unconscionable. FINRA’s cures: barring from the industry those who fail to pay awards, and notifying claimants that they can pursue actions in court against former FINRA members, have failed to cure, or put a meaningful dent in, the problem. Steps must therefore be taken to put forth a new division of FINRA to craft and administer a National Recovery Pool.”

UN iLibrary Launch

United Nations Publications, dedicated to promoting the knowledge and work of the UN, recently launched a new iLibrary platform in partnership with the Organization for Economic Cooperation and Development (OECD). The new platform, http://www.un-ilibrary.org/, is “the first comprehensive global search, discovery, and dissemination platform for digital content created by the United Nations.” See this link from the OECD for a PDF with more information.

UNiLibraryThe platform provides “a single online destination” to access UN’s digital content such as publications, journals, reports, and other series covering a wide range of topics: international peace and security, human rights, economic and social development, climate change, international law, governance, public health, and statistics. Titles include:

  • Yearbook of the United Nations
  • Yearbooks of the International Law Commission
  • United Nations Demographic Yearbook
  • World Economic Situation and Prospects
  • World Investment Report
  • Statistical Report and Yearbook

In its February launch, United Nations iLibrary has about 780 titles and is expected to expand its collection to around 3,000 titles by the end of 2016. iLibrary content is available for public users to read; however, to access and download the PDFs a separate subscription is needed.

GPO to Replace FDsys with Govinfo

This month, the U.S. Government Publishing Office issued a press release announcing the launch of www.govinfo.gov, designed to replace the Federal Digital System (FDsys) in 2017. A Government Publishing Office’s spokesman has called it “the Google for government documents.” See Roll Call article from February 3, 2016. The site is currently in beta and users are encouraged to share suggestions with the U.S. GPO for further improvements. The site is a mobile-friendly, easy-to-use navigation system to information on the three branches of government. It currently offers more than 1.5 million titles, with more added each day. The alphabetized list of collections available includes the Federal Register and the CFR; congressional calendars, bills, hearings, committee reports; the U.S. Code; court opinions; the federal budget and many more government publications. Searchers can use a Google like box and then use the facets to find results. Alternatively, users can choose a category to search, limiting a search to just bills, or just regulatory documents, etc. If users are only looking for documents from a specific Congressional committee, they can choose that selection.

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For a Q&A to learn about the differences between FDsys and govinfo, read the post published on the site In Custodia Legis by the Law Librarians of Congress Meet govinfo, GPO’s Next Generation of Access to Federal Government Information.

BLS Library Pre-Oscar Movie Night

OscarDuring the week leading up to Oscar Night 2016, the Brooklyn Law School Library will host a Pre-Oscar Movie Night. The event showcases the Prof. Robert Pitler movie collection of more than 1500 DVDs. Click on the link to see the complete list of titles. The collection is located in the Student Lounge on the First Mezzanine level of the library. BLS Library users are encouraged to borrow items from the collection to view either at home or in the Library Audio-Visual Room on the first floor.

The BLS Library Pre-Oscar night will take place on Wednesday, February 24 at 8pm in the Student Lounge on the first floor of the BLS Law School. From today until February 19, BLS students, staff and faculty can vote for the film they want to see. Ballots are located at the reference desk. Stop by to vote and help decide which film to see.

From the Oscar contenders in the BLS Library collection, the nominees are:

The winning title will be announced in advance of the Pre-Oscar Movie Night. Before the screening of the film, Prof. Lawrence Fleischer will give a brief talk about the late Prof. Robert Pitler. Refreshments will be served.

Watergate Revisited

The 43rd anniversary of the January 30, 1973 convictions of former Nixon aides G. Gordon Liddy and James W. McCord Jr. for conspiracy, burglary and wiretapping in connection with the break-in at the Watergate hotel brings to mind the turbulent years leading to the only presidential resignation in US history. The conviction was later upheld in United States v. Liddy, 509 F. 2d 428 (D.C.Cir. 1974).

The BLS Library has an extensive collection of material related to the Watergate scandal. One item was written by a noted alumnus of Brooklyn Law School, the late Leonard Garment (Class of 1949) who later became a member of the BLS Board of Trustees and an Adjunct Professor of Law. Garment (1924 – 2013) was an attorney who served Presidents Richard Nixon and Gerald Ford in various positions from 1969 to 1976, including Counselor to the President, acting Special Counsel to Nixon for the last two years of his presidency, and U.S. Ambassador to the Third Committee at the United Nations. Born in Brooklyn, he graduated Brooklyn Law School and joined the law firm of Mudge, Stern, Baldwin, and Todd (later called Nixon, Mudge, Rose, Guthrie & Alexander). There, Garment met Nixon and then worked on his 1968 presidential campaign, later becoming part of Nixon’s White House staff as special consultant to the president. He advised the president and worked on various special projects, particularly on civil and human rights, Indian affairs, and the arts.

His 418 page Garmentbook Crazy Rhythm: From Brooklyn and Jazz to Nixon’s White House, Watergate, and Beyond (Call No. E856 .G38 1997) is a fascinating autobiography of a Washington/Wall Street insider who thrived despite hard blows dealt him on more than one occasion. Garment tells how he left home early to pursue a career as a clarinet/saxophone player in jazz bands. After serving in WW II, he earned his law degree and soon became a close friend of the former vice president. An important member of the Nixon team, Garment became an all-purpose troubleshooter for the president. The tough-talking administration’s informal envoy to both US Jewry and Israel, Garment (who describes his ex-boss as operationally progressive but rhetorically retrogressive on social issues) also worked on civil-rights programs. He was untainted by Watergate, but his comments on the scandal are marked with perception and compassion. He eventually returned to New York City to serve as Daniel Patrick Moynihan’s special assistant for human rights during his stint as US ambassador to the UN, and then resumed the practice of law. The book is an engaging recollection of a free-spirited advocate who learned from his experiences close to the seats of power.

New Limits on Insider Trading?

A Wall Street Journal article reports that the U.S. Supreme Court has granted a writ of certiorari to review the ruling by Judge Jed Rakoff in the case of Salman v. US, 792 F.3d 1087 (9th Cir. 2015). Judge Rakoff, who usually sits on bench of the Southern District of New York, served as a visiting judge temporarily assigned to the Ninth Circuit and wrote the opinion in Salman, which disagreed with last year’s Second Circuit ruling in US v. Newman, 773 F. 3d 438 (2d Cir. 2014). The Newman decision overturned the insider trading convictions of former hedge-fund traders articulating a narrower definition of the crime. The issue in Salman is what constitutes insider trading in a case involving an Illinois businessman’s appeal of his conviction for making $1.2 million trading on tips about mergers from his brother-in-law, a Citigroup banker. With the grant of certiorari, the Supreme Court may now decide a key question in insider trading cases, namely what benefits corporate insiders need to receive for any information they disclose to traders to be illegal. The Justice Department warned that overturning the convictions in Newman prosecution could hinder the government’s campaign to curb insider trading on Wall Street. The Supreme Court denied certiorari in Newman.

Salman was convicted of 2013 of making investments based on confidential information he received from a family member who worked in the health care investment banking group at Citigroup Global Markets in NY. Co-defendants pleaded guilty in 2011 and were sentenced to probation. Salman was sentenced to 36 months in federal prison and ordered to pay more than $738,000 in restitution. His appeal cites the Second Circuit decision in Newman where the court ruled that prosecutors must prove that a defendant had direct knowledge of the leaker, realize that a breach of fiduciary duty occurred and know that the leaker received a personal benefit in exchange for the information. In Newman, the Second Circuit held that the evidence was insufficient to establish that the tippers received a personal benefit in exchange for the tip. The court also explained that there needed to be “proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” In other words,  the relationship should suggest a quid pro quo from the recipient.

InsiderBrooklyn Law School Library has an extensive collection of material on  insider trading, the latest of which is Insider Trading Law and Policy by Stephen Bainbridge (Call # KF1073.I5 B35 2014). The textbook is for use in law school classes on insider trading, securities regulation, or business associations. It offers a clear and direct exposition of the law and policy concerns raised by this important and hcircleigh-profile area of the law. The author provides sufficient detail for a complete understanding of the subject without getting bogged down in minutiae. A second item in the BLS Library collection is  worth reading: Circle of Friends: The Massive Federal Crackdown on Insider Trading—and Why the Markets Always Work Against the Little Guy by Charles Gasparino (Call # HG4928.5 .G38 2013). It is a riveting work of narrative nonfiction, as engrossing and explosive as fictional thrillers of the finest magnitude and should serve as a wake-up call to the investing public.

Episode 096 – Conversation with Prof. Anita Bernstein

Episode 096 – Conversation with Prof. Anita Bernstein.mp3

In this podcast, Brooklyn Law School Professor Anita Bernstein and Loren Pani, BLS Class of 2015, her research assistant, discuss her series of articles on legal malpractice written for the Outside Counsel column of the New York Law Journal. Professor Bernstein reports on a data set of legal malpractice decisions issued during the last five years by the appellate courts of New York. To date four columns have been published:  Nine Easy Ways to Breach Your Duty to a Real Estate Client, which appeared in the August 11, 2015 edition of the NYLJ; Avoidable and Actionable Errors by New York Personal Injury Lawyers, September 17, 2015; Matrimonial Malpractice Before, During and After a Client’s Divorce, October 30, 2015; and  Judiciary Law §487 Claims For Attorney Misconduct, November 24, 2015. The fifth entry in the series, “Legal Malpractice Liability for Criminal Defense: Rare, Yet Possible”, is slated for publication on December 30. Prof. Bernstein and Loren credit BLS Reference Librarian Kathleen Darvil for her assistance in compiling the data set.

FDR Public Papers and Digital Speech Collections

Brooklyn Law School Library’s subscription to HeinOnline has many libraries including the U.S. Presidential Library with nearly 500,000 pages. Its titles include Messages and Papers of the Presidents, Public Papers of the Presidents, the Weekly Compilation of the Presidential Documents, and other documents relating to U.S. presidents. The Public Papers of the Presidents begins with Herbert Hoover and concludes with George W. Bush. Compiled and published by the Office of the Federal Register, National Archives and Records Administration since 1957 in response to a recommendation by the National Historical Publications Commission, they are a rich collection for researchers.

The Daily Compilation of the Presidential Documents is issued through the Office of the Federal Register and contains statements, messages and other Presidential material released by the White House. It also includes: speeches, press conferences, press releases, proclamations, executive orders, acts approved by the President, and many more documents. The predecessor title, the Weekly Compilation of the Presidential Documents, is also included. The collection contains a number of other titles, including the Economic Report of the President, Hearings before the President’s Commission on the Assassination of President Kennedy, and the Public Papers and Address of Franklin Delano Roosevelt.

InfamyThe last collection of FDR material can now be used with the New Digital Speech Collections, recently released by the FDR Library with support from AT&T, Marist College and the Roosevelt Institute. Surprisingly it shows the famous FDR quotation in a speech just after the attack on Pearl Harbor as “a date which will live in infamy” was edited from the original “a date which will live in world history.” The collection links to FDR’s Master Speech File, one of the FDR library’s most in-demand archival collections. With over 46,000 pages of drafts, reading copies, and transcripts created throughout FDR’s career, it is the most extensive collection of primary source documents related to FDR’s lifetime of public addresses.