Category Archives: Book Review

Librarians review books in the Brooklyn Law Library collection.

Conspiracy: the Gawker Case

Brooklyn Law School Library’s New Books List for June 1, 2018 is now out with 38 print titles and 41 E-book titles. One book attracted the attention of this writer. Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue tells the story of an astonishing modern media conspiracy. In an age when people compete to be contrarian, it is rare to encounter an astounding proposition. That is what makes Ryan Holiday’s “Conspiracy” such a delight. It takes real nerve, during an investigation into possible collusion to swing the 2016 presidential election, to argue that we might be better off “if more people took up plotting.” Unfortunately for Holiday, and for readers who enjoy a good provocation, his book focuses on a case that demonstrates why transparency beats conspiracy in the long run.

“Conspiracy” chronicles the legal battle between Terry Bollea, or Hulk Hogan, and Gawker Media, the swashbuckling Manhattan publishing group founded by Nick Denton. In 2012, A.J. Daulerio, then editor of the company’s flagship site, published excerpts of a sex tape, recorded in 2006 without Bollea’s consent or knowledge, that showed Bollea in bed with Heather Clem, who was then married to Bollea’s best friend: the radio personality Bubba the Love Sponge. The story was wacky, but it got truly weird. In 2007, Gawker Media acquired a powerful enemy when one of its writers outed PayPal founder and venture capitalist Peter Thiel as gay. Gawker’s Denton, who like Thiel is gay, believed that Thiel’s refusal to be open about being gay was proof that Thiel was “paranoid.” To Thiel, the story was a violation, one that made him into an object of curiosity, in a way he found incomprehensible.

Thiel, as Holiday writes, “venerated privacy, in creating space for weirdos and the politically incorrect to do what they do. Because he believed that’s where progress came from.” What Gawker saw as transparency, Thiel saw as a threat to Silicon Valley. He was so angry at Gawker that he began to refer to it as “the Manhattan Based Terrorist Organization.”

But it took him four years to strike back. In 2011, a Mr. A, whose role is first described in “Conspiracy” but who remains a shadowy figure throughout the book, persuaded Thiel to devote $10 million and five years to a shell company aimed at finding and backing potential lawsuits against Gawker. Among their beneficiaries: Terry Bollea. In 2016, a Florida jury awarded Bollea damages so punishing that Denton had to sell the company. On the surface, it seemed that Thiel’s conspiracy had checkmated Gawker Media.

Holiday, an author and corporate adviser, had unusual access to Thiel and Denton. It is one of the many ironies of this story, and of “Conspiracy,” that talking makes Thiel more sympathetic and comprehensible than plotting ever did. But by the end of the book, it’s clear that, despite Holiday’s argument, Thiel’s conspiracy failed: Thiel killed Gawker, but in doing so undermined his dream of making the Internet a more decent place and securing a more private life for himself. By contrast, Gawker was destroyed not because its leaders failed to conspire, but because they did not pursue the transparency they claimed to believe in.

By the time Thiel did identify himself as Gawker Media’s nemesis after the verdict in Bollea v. Gawker, the narrative of the trial was well on its way to being set. Thiel discovered that it is difficult to come forward and insist that you are the hero of the story when you have already won the sort of surprising and dismaying victory that makes the public inclined to believe that you are the villain. “Cunning and resources might win the war,” Holiday writes toward the end of “Conspiracy,” “but it’s the stories and myths afterwards that will determine who deserved to win it.” The flaw in Thiel’s thinking, and in “Conspiracy,” is in failing to recognize that the stories and the myths that emerge after an event often are the substance of the victory.

Taxing the Church

The Brooklyn Law School Library New Books List for May 1, 2018 has 23 print titles and 54 E-book titles. There are so many topics covered in the list but the pending case of Gaylor v. Mnuchin which involves permitting housing allowances given by denominations to clergy to be exempt from taxation makes one book on the list highly topical.

The book is Taxing the Church: Religion, Exemptions, Entanglement, and the Constitution by Edward A. Zelinsky, Professor of Law at Cardozo School of Law. It explores the taxation and exemption of churches and other religious institutions. This exploration reveals that churches and other religious institutions are treated diversely by the federal and state tax systems. Sectarian institutions pay more tax than many believe. In important respects, the states differ among themselves in their respective approaches to the taxation of sectarian entities. Either taxing or exempting churches and other sectarian entities entangles church and state. The taxes to which churches are more frequently subject – federal Social Security and Medicare taxes, sales taxes, real estate conveyance taxes – fall on the less entangling end of the spectrum. The taxes from which religious institutions are exempt – general income taxes, value-based property taxes, unemployment taxes – are typically taxes with the greatest potential for church-state enforcement entanglement. It is unpersuasive to reflexively denounce the tax exemption of religious actors and institutions as a subsidy.

For many years, religious denominations in the United States have been largely exempt from paying taxes. However, some cracks are beginning to show in that armor. Principal among them is a suit awaiting a hearing by the 7th U.S. Circuit Court of Appeals in the case of Gaylor v. Mnuchin, in which the Freedom From Religion Foundation is challenging the constitutionality of a 1954 law, the so-called “parsonage allowance” under 26 U.S.C. § 107(2) that permits “ministers of the gospel” to receive cash housing allowances tax free, a potential violation of the Establishment Clause. The case is on appeal to the United States Court of Appeals For The Seventh Circuit seeking to reverse the district court’s opinion and affirm the constitutionality of the minister’s housing allowance under 26 U.S.C. § 107(2).

Lynching in America

Earlier this month, Oprah Winfrey reported on 60 Minutes on the Alabama memorial dedicated to thousands of African-American men, women and children lynched over a 70-year period following the Civil War. The project is being led by criminal defense attorney Bryan Stevenson who wants to shed light on a dark period in our past that most people would rather forget. These hangings were not isolated murders committed only by men in white hoods in the middle of the night. Often, they were public crimes, witnessed by thousands of people. Stevenson believes to heal racial divisions we must educate Americans of every color and creed. See the episode here.

The National Memorial for Peace and Justice, opening to the public on April 26, 2018, will become the nation’s first memorial dedicated to the legacy of enslaved black people, those terrorized by lynching, African Americans humiliated by racial segregation and Jim Crow, and people of color burdened with contemporary presumptions of guilt and police violence. Read the report, Lynching in America: Confronting the Legacy of Racial Terror, which documents more than 4400 lynchings of black people in the United States between 1877 and 1950.

The Brooklyn Law School Library has in its collection a related title, The Lynching: The Epic Courtroom Battle That Brought Down the Klan by Laurence Leamer (Call No. HV6465.A2 L43 2016). It is the powerful story of a brutal race-based killing in 1981 and the dramatic two trials during which the United Klans of America, the largest and most dangerous Klan organization in America, was exposed for the evil it represented. Leamer tells a gripping story of figures such as legendary civil rights lawyer Morris Dees, Alabama governor George Wallace, and Klan Imperial Wizard Robert Shelton and describes the Klan’s lingering effect on race relations in America today.

The story begins in March 1981, when Henry Hays and James Knowles, members of Klavern 900 of the UKA, picked up nineteen-year-old Michael Donald on the streets of Mobile, Alabama. They were seeking to retaliate after a largely black jury failed to convict a black man accused of murdering a white policeman. Hays and Knowles beat Donald, cut his throat, and left his body hanging from a tree branch in a racially mixed residential neighborhood. Arrested, charged, and convicted, Hays was sentenced to death, the first time in more than half a century that the state of Alabama had given that penalty to a white man for killing a black man.

Morris Dees, co-founder of the Southern Poverty Law Center, saw the case as an opportunity to file a lawsuit against the UKA. His colleagues told him that his lawsuit was impossible to win. Nevertheless, on behalf of Michael’s grieving mother, Mrs. Beulah Donald, Dees filed a first-of-its-kind civil suit and charged the Klan organization and its leaders with conspiracy. He proceeded to put the Klan leaders on trial, which produced some of the most audacious testimony of any civil rights trial as well as a stunning and precedent-setting verdict. Dees destroyed the UKA and created a weapon that the SPLC used time and again against other racist organizations. The Lynching is a suspenseful true story that takes us into the heart of darkness, but finally shows that Michael Donald and other civil rights martyrs did not die in vain.

Working-Class Shareholder

The Brooklyn Law School Library New Books List for April 1, 2018 has 42 print titles and 30 e-book titles. Among them is one e-title The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon by David Webber, a rare good-news story for American workers. Combining legal rigor with inspiring narratives of labor victory, Webber shows how workers can wield their own capital to reclaim their strength. When the CEO of the supermarket chain Safeway cut wages and benefits, starting a five-month strike by 59,000 unionized workers, he was confident he would win. But where traditional labor action failed, a novel approach was more successful. With the aid of the California Public Employees’ Retirement System, a $300 billion pension fund, workers led a shareholder revolt that unseated three of CEO’s boardroom allies. In the book, the author uses cases such as Safeway’s to shine a light on labor’s most potent remaining weapon: its multitrillion-dollar pension funds. Outmaneuvered at the bargaining table and under constant assault in Washington, state houses, and the courts, worker organizations are beginning to exercise muscle through markets. Shareholder activism has been used to divest from anti-labor companies, gun makers, and tobacco; diversify corporate boards; support Occupy Wall Street; force global warming onto the corporate agenda; create jobs; and challenge outlandish CEO pay. Webber argues that workers have found in labor’s capital a potent strategy against their exploiters. He explains the tactic’s surmountable difficulties even as he cautions that corporate interests are already working to deny labor’s access to this powerful and underused tool.

This book could be the modern bible of the movement to harness labor’s capital for working-class interests. It is a riveting and thoughtful book that is not only a fast and fun read, but contributes wonderfully to a new and ongoing conversation about inequality, dark money, and populism in the electorate. On Wednesday, April 18 at 4pm, Brooklyn Law School will host a Book Talk with David Webber, Professor of Law, Boston University School of Law to discuss the book. It is sponsored by the Center for the Study of Business Law and Regulation.

Snow Day Reading: Riot Days

In “Riot Days”, her short memoir of the events leading to her incarceration and subsequent release 18 months later,  Maria Alyokhina gives us a glimpse of the Russian justice and penal systems. But it is a glimpse, and nothing more.

Alyokhina is a member of the band Pussy Riot, perhaps still best known for their “punk prayer”  protest in 2012, at the Cathedral of Christ the Savior in Moscow. After eluding authorities for a while, Alyokhina and two fellow Pussy Rioters were arrested.  Most of “Riot Days” is about what ensued: detention, trial, conviction, and imprisonment in prisons in Berezniki near the Ural Mountains, and in Nizhny Novgorod.

Upon arrest, the author and her bandmates were charged with “hooliganism motivated by religious hatred”, with prosecutors seeking a 3 year prison term for each of the accused. In the chapter titled “Russian Trial”, Alyokhina describes a trial which is by turns tedious and absurd: a long line of accusers claiming shock and moral injury, confused witnesses, an accuser who wasn’t present at the church and only “saw the video”, a vomiting dog.  Not to mention a sometimes distracted judge:

“The secretary stops recording the proceedings. The judge bows her head and starts doodling.

‘Your Honour, please stop doodling!’ the lawyer shouts.

‘Don’t look at my desk!’ the judge shouts back.”

After she was convicted and sentenced to 2 years in prison, Alyokhina would continue to fight the system from within.  Often her protests would fall flat, and she spent months in solitary confinement. Yet a surprising number of times, and in part due to her celebrity, her efforts bore fruit. Notably, on occasions when she was able to tell the authorities what specific law they were violating, she managed to get the guards to rein in their abuses such as stealing from the salaries owed to the prisoners.  

Included in “Riot Days” are some evocative vignettes, as Alyokhina navigates the Russian justice and penal systems.  The guards who get upset when the prisoner who gives manicures to everyone in prison, guards and prisoners alike, is about to be released (“Who will do our nails?”) Having nothing to read in prison other than a box full of romance novels.  Igor, the chief of criminal investigations, who boasts about dieting and riding 10 miles on his bicycle. The author making sushi rolls for her fellow prisoners, none of whom has tasted sushi before.  

With widespread disenfranchisement of those who have been convicted in this country, one of the author’s stories involving voting was quite striking.  Alyokhina was a detained prisoner accused of political crimes, and on hunger strike, when this happened:

“In the middle of all this, the clatter of an iron key in the lock of the iron door, and someone roars “You want to vote?”

Despite being weakened by her hunger strike, the author jumped out of her cell. In an elegantly decorated room adorned with a large portrait of Putin, she got to vote in the Russian presidential elections.

“Riot Days” is fragmented, a bit messy, and may not be everyone’s cup of tea. If you are looking for a more comprehensive account of events surrounding the Pussy Riot case, there are other sources you can turn to.  Still, the book does an excellent job capturing the mood of those turbulent events. Despite the hardships she suffered, the author manages to ring a note of optimism: even if the system is stacked against you, knowing your rights and fighting for them can take you a long way.  As Alyokhina tells herself, in the midst of one of her many battles with prison authorities, “I have to understand the law.”

Riot Days, by Maria Alyokhina (Call No. ML420.A57 A3 2017)

Amelia D. Lewis: Woman Behind In re Gault

The US Congress, by Public Law 100-9, designated the month of March 1987, as “Women’s History Month”. This law requested the President to issue a proclamation calling on the American people to observe this month with appropriate activities. President Reagan then issued Presidential Proclamation 5619 proclaiming March 1987 as “Women’s History Month”. Since then, Presidential Proclamations have declared March as Women’s History Month.

Brooklyn Law School celebrates Women’s History Month by recognizing Amelia Dietrich Lewis, Class of 1924, as “one of the most tenacious lawyers the state of Arizona has ever seen.” She was a graduate of St. Lawrence University School of Law (now Brooklyn Law School). She exhibited her moxie early in her career, even before she was sworn in as an attorney. Although Lewis was scheduled to take the bar exam on June 24, 1924, she learned that the New York Bar prohibited candidates under the age of 21. In Lewis’s case, she was to turn 21 the very next day, on June 25. Facing this technicality, she filed suit against the Bar, arguing she would be 21 on the 24th because her birthday was actually the first day of her 22nd year.” She was successful in her suit and took the exam as planned on the 24th and passed. After practicing law in New York for 33 years, in 1957 following the death of her husband, she moved to Arizona. She took the bar examination in that state with just one other woman, Sandra Day O’Conner. There, she worked as a prosecutor for six years and then maintained a thriving solo practice, concentrating in elder law in Sun City. She was well into her eighties when she retired.

Lewis is best known for her involvement in the landmark 1967 Supreme Court case, In re Gault, 387 U.S. 1 (1967), which brought due process to juvenile courts across the nation. Her client, Gerald Gault, had been sentenced without legal counsel to an Arizona reformatory. He allegedly made an obscene phone call to a neighbor, was arrested by local police, and tried in a proceeding that did not require his accuser’s testimony. He was sentenced to six years in a juvenile “boot camp” for an offense that would have cost an adult only two months. Lewis assumed the role of co-counsel after Gault’s appeals at the lower level were exhausted. She was drawn to the case because she had raised three healthy sons and “wanted to give something back.” Ultimately, the defense of the boy prevailed, with the Court holding that he was entitled to the same constitutional safeguards as adults: a trial by jury, the right to legal counsel, the right to cross-examine witnesses, and the right to remain silent. Justice Fortas in his 8-1 majority opinion wrote: “Neither the 14th Amendment nor the Bill of Rights is for adults only. Under the Constitution, the condition of being a boy does not justify a kangaroo court.”

Lewis was recognized by the Arizona Republic as one of the legal greats of that state. In 1988, she received the first Amicus Award of the Association of Trial Lawyers of America, which honored her for pioneering the vital role of women in the legal profession. Upon her death in 1994, the Chief Justice of the Arizona Supreme Court commented: “She made history for the law in many ways. Her life and career epitomized the practice of law as it should be.”

The Brooklyn Law School Library has in its collection The Constitutional Rights of Children: In re Gault and Juvenile Justice by David S. Tanenhaus (Call No. KF228.G377 T36 2017). This new edition includes expanded coverage of the Roberts Court’s juvenile justice decisions including Miller v. Alabama (in which the Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders) and explains how disregard for children’s constitutional rights led to the “Kids for Cash” scandal in Pennsylvania. Widely celebrated as the most important children’s rights case of the twentieth century, Gault affirmed that children have the same rights as adults and formally incorporated the Fourteenth Amendment’s due process protections into the administration of the nation’s juvenile courts.

Library Adds Collection on Academic Freedom

The Library was recently the recipient of a gift in honor of Joan Wexler, Dean and President Emerita of Brooklyn Law School.  The funds received from the gift were used to purchase books in an area of particular interest to President Wexler.  She chose the area “academic freedom,” and Library Director Janet Sinder selected the books that have been cataloged and added to our collection, and are now available on the shelves in the cellar’s main collection area for loan.  While Professor Sinder ordered over twenty books on this topic, a few of these new books are briefly described below.

Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge.

This book, written by Joanna Williams, gives the history and analysis of the rise and recent fall of academic freedom, including a discussion of the restrictions that some governments are imposing on academic freedom.

While academic freedom might seem to be a “largely academic proposition disconnected from the pursuit of knowledge,” Ms. Williams enumerates academic freedom in the areas of science, social science, sociology, literature, etc.  She also discusses how the fight for academic freedom has    become a campaign for “academic justice” in recent years.

Academic Freedom in Conflict: The Struggle over Free Speech in the University


This work is a collection of essays edited by James L. Turk.  The many contributors to this book document the areas in which academic freedom is in jeopardy, including in religious institutions, in academic-corporate settings, etc.  Also discussed are the “managed university” and demonstrations on campuses.

A practical area for discussion regarding academic freedom is given an entire chapter entitled “Giving and taking offence: civility, respect, ad academic freedom.”  While this book was published in Canada, the information conveyed has implications for those interested in academic freedom in the U.S.

Freedom to Learn: The Threat to Student Academic Freedom and Why It Needs to be Reclaimed

The author, Bruce Macfarlane, argues for student choice, or real academic freedom, in the areas of attendance requirements, class participation, assessments, etc., in other words, student-centered learning.  He advocates certain rights for students, such as the right to non-discrimination, the right to reticence in the classroom, the right to choose how to learn, etc.

 

Why Academic Freedom Matters:  A Response to Current Challenges

This book, edited by Cheryl Hudson and Joanna Williams, is written by several contributors from the British perspective, and gives a history of academic freedom, defines it as it is currently viewed, discusses the university in the 21st century, and explores the current threats to academic freedom.

You Are Being Watched

The Brooklyn Law School Library New Books List for March 1, 2018 is out with 40 print titles and 17 e-book titles. One of the titles is the 151-page volume Being Watched: Legal Challenges to Government Surveillance by Jeffrey L. Vagle, Lecturer in Law at the University of Pennsylvania Law School. The nine chapters (You Are Being Watched; A History of Government Surveillance; Getting through the Courthouse Door; The Doctrine of Article III Standing; Before the Supreme Court; Government Surveillance and the Law; The Legacy of Laird v. Tatum; Technology, National Security, and Surveillance; and The Future of Citizen Challenges to Government Surveillance) tell a riveting history of the Supreme Court decision that set the legal precedent for citizen challenges to government surveillance, particularly the case of Laird v. Tatum, 408 U.S. 1 (1972). There the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements. The book also discusses a more recent case where the ACLU challenged the constitutionality of the FISA Amendments Act over surveillance of American citizens and residents. That Supreme Court case, Clapper v. Amnesty International USA (2013), was one where the Court held that the District Court for the Southern District of New York was correct ruling that the plaintiffs had no standing to bring their case before any federal court.

The book is a fascinating and disturbing story of jurisprudence related to the issue of standing in citizen challenges to government surveillance in the United States. It examines the facts of surveillance cases and the reasoning of the courts who heard them, and considers whether the obstacle of standing to surveillance challenges in U.S. courts can ever be overcome. The author examines the history of military domestic surveillance, tensions between the three branches of government, the powers of the presidency in times of war, and the power of individual citizens in the ongoing quest for the elusive freedom-organization balance. It is essential reading for every American citizen. It explains all the legalities and the methods government uses to surveil citizens.

BLS Professor on Israel Supreme Court

Brooklyn Law School’s Professor Alex Stein gained appointment to the Israeli Supreme Court. Stein, a foremost expert on torts, medical malpractice, evidence, and general legal theory, was appointed along with Israeli District Court Judge Ofer Grosskopf to fill two open Supreme Court positions that were vacated by retiring justices. Stein’s nomination was unanimously approved by the Judicial Appointments Committee. There are 15 justices on the Israeli Supreme Court.

“Professor Stein is one of the world’s brilliant legal minds,” said Nick Allard, President and Dean of Brooklyn Law School. “In the short time he has been with us, he has made an enormous positive impact on the Brooklyn Law School community—as a teacher, a scholar, and a wonderfully energetic and engaged colleague and friend. We could not be prouder of his well-deserved appointment to the Israeli Supreme Court, where we know he will make important and lasting contributions as a jurist—as he has as a law professor and practicing lawyer.”

Born and raised in the former Soviet Union, Stein immigrated with his parents to Israel, where he finished high school, served in the military, and studied law. Following his marriage, he has lived in the United States for the last 14 years and joined the Law School faculty in 2016. While in the United States, he continued his involvement in the Israeli legal academy and practice. Stein has been recognized as one of the most highly cited scholars in the field of Evidence. His books include An Analytical Approach to Evidence: Text, Cases and Problems, (Call Number KF8935 .A83 2016). The book is a problem-based Evidence casebook that presents the Federal Rules of Evidence in context, illuminates the rules, and provides a fully updated and systematic account of the law. Lively discussion and interesting problems (rather than numerous appellate case excerpts) engage students in understanding the principles, policies, and debates that surround evidence law. He received his law degree from the Hebrew University of Jerusalem and his Ph.D. from the University of London.

Presidents Day

The Uniform Monday Holiday Act in 1971 declares that Washington’s Birthday falls on the third Monday in February in the United States. It is, of course, named for George Washington, the first president of the United States. The holiday originally started as a day to celebrate the birthday of George Washington whose birthday is February 22. As part of the Uniform Monday Holiday Act in 1971, the holiday was moved to the third Monday in February. Presidents’ Day is now thought of as a holiday saluting all Presidents, not just George Washington. Public Law 90-363 designated the third Monday in February as Washington’s Birthday. Many states choose to call this day Presidents’ Day instead of Washington’s Birthday. Some states also celebrate Abraham Lincoln’s birthday as well. Other Presidents born in February include William Henry Harrison and Ronald Reagan.

Some facts about Presidents’ Day are:

1. Washington’s birthday was how the holiday began, following his death in 1799, and was celebrated each year on February 22. It was then celebrated widely in 1832 on the centennial of his birth and in 1848 when construction first started on the Washington Monument. Other presidents with birthdays in February include Abraham Lincoln on February 12.  The holiday became recognized as a day to honor multiple past presidents. Alabama celebrates Washington’s birthday and Thomas Jefferson’s birthday on Presidents’ Day, even though Jefferson was born in April.

2. It has different names in certain states. In Virginia, which is Washington’s home state, they call it George Washington’s Day. In Alabama, it is called Washington and Jefferson Day. There is no official agreement on the placement of the apostrophe in “Presidents’ Day,” so you might see it written as “Presidents’ Day,” “President’s Day,” or just “Presidents Day.”

3. It was almost changed back to individual birthdays in the 2000s. Because the origins of Presidents’ Day started to become lost, honored more presidents than just Washington, disregarded Lincoln, and morphed into a commercialized cluster of chaos, an attempt to restore Washington’s and Lincoln’s individual birthdays as holidays was made in the 2000s. It failed. However, the federal government still recognizes Presidents’ Day as a celebration of Washington and is listed as such on official calendars.

4. Even though it is a federal holiday, each state is free to call it what they choose and how to celebrate.

5. Brooklyn Law School is closed on Presidents’ Day. The Library is open from 9am to 10pm. See the library e-book For Fear of an Elective King: George Washington and the Presidential Title Controversy of 1789 by Kathleen Bartoloni-Tuazon where the author argues that the resolution of the controversy in favor of the modest title of “President” established the importance of recognition of the people’s views by the president and led to leadership that demonstrated the presidency’s power by not flaunting it.