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.
Last 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.
Books 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.
On Monday, October 31, the Supreme Court will hear oral argument in Fry v. Napoleon Community Schools, an appeal by a 12-year-old Michigan girl with cerebral palsy who was not allowed to bring her service dog to school. The Court will consider whether Ehlena Fry’s family can sue the school district for violations of federal disability laws. Fry’s family obtained a goldendoodle, Wonder, to help her open doors and retrieve items. Her school district initially refused to allow Wonder at school. Officials relented a bit in 2010, but they placed many restrictions on Wonder. Ehlena and her dog later transferred to another school.
The family sued the school district in the US District Court for the Eastern District of Michigan for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In January 2014, the court in EF ex rel. Fry v. Napoleon Community Schools, 2014 WL 106624 (subscription required) granted the defendant’s motion to dismiss the complaint ruling that the plaintiffs first had to seek an administrative hearing. In June 2015, the 6th Circuit Court of Appeals in Fry v. Napoleon Community Schools, 788 F. 3d 622 upheld that decision 2-1. The American Civil Liberties Union is representing the family. School districts around the country have repeatedly denied children with disabilities their right to bring service dogs to school often claiming the service animals are not necessary and that the schools can help the children through other means. The ACLU wants the justices to declare that children prevented from using service animals at school can proceed directly to court without having to go through administrative hearings that can be costly, time consuming and burdensome. The ACLU Petition for Certiorari is available here. See also Ehlena and Wonder the Service Dog’s Incredible Journey to the Supreme Court and the video that the ACLU posted about her.
The school argues that exhausting administrative remedies encourages parents and schools to work together to determine the best plan for each child and are a cheaper way to resolve educational disputes. The Obama administration has backed the Fry family, saying the appeals court’s decision was wrong and “leads to unsound results.” The government said when the lawsuit was filed, Ehlena had already moved to a new school district and there was no ongoing dispute to compromise. Requiring her to go through administrative proceedings “would waste time and resources without offering any chance of resolving their actual dispute,” the Justice Department said in a brief to the court.
On the subject of service pets, SARA, the Brooklyn Law School Library catalog links to an online resource by the Office of the New York State Attorney General Civil Rights Bureau titled Freedom on Four Legs: Service Animals, Individuals with Disabilities, and the Law.
The BLS Library is offering a webinar and a live training session to introduce students & faculty to the LexisNexis Digital Library. As described in Reference Librarian Rosemary Campagna’s blog of October 15, 2016, the Library recently acquired a subscription to the LexisNexis Digital Library which gives students access to treatises, practice guides, and study aids in eBook format.
In order to formally introduce students and faculty to this important new resource, the Library is offering both a webinar and a live training session for the LexisNexis Digital Library. Both sessions will cover the following topics:
- How to access (both on-campus and off-campus)
- Our library’s collection
- Tools and functionality
- Locating a title/volumes
- Borrowing volumes
- Linking on-line research with “print” research
- Recent and forthcoming enhancements
These sixty minute sessions will be offered on the following dates/times:
UPDATE: THE PREVIOUSLY SCHEDULED WEBINAR FOR THURSDAY, NOVEMBER 3rd WILL BE REPLACED BY A LIVE TRAINING SESSION ON THURSDAY, NOVEMBER 10, 2016, 11AM-12NOON IN LIBRARY ROOM 113M. SPACE IS LIMITED. EMAIL to: email@example.com, if you would like to attend.
WEBINAR: Monday, November 7, 2016, 4:00PM-5:00PM.
The instructor for both training sessions is Damian A. Burns, LexisNexis Digital & Print Sales Engineer, Damian.A.Burns@LexisNexis.com
Please follow this link at the time of the November 7th webinar to participate:
Current law students and faculty can access the Law Library’s new subscription to the LexisNexis Digital Library. This new subscription gives provides access to primary law, code books, treatises as well as study aids, such as the Understanding and Questions and Answers series. Just sign in with your BLS user name and password for access.
The LexisNexis Digital Library provides eBook lending capabilities, much like lending a physical book. The books are accessible via computer, smartphone and tablets. They are compatible with all major devices (Apple® products, Android, Amazon® Kindle®, etc.). You can access them 24/7.
Borrowing times vary depending on the format, ranging from 7 days for a study aid and 30 days for a treatise. We also have multiple copies of titles, so several users may access them at once.
Check out the Lexis/Nexis Digital Library and see what it has to offer.
Episode 099 – Conversation with Prof. Susan Hazeldean and Rachel Russell.mp3
This conversation with Brooklyn Law School Assistant Professor of Law Susan Hazeldean and Rachel Russell, Class of 2017 and chair of the Brooklyn Law School OUTLaws, discusses the Brooklyn Law School LGBT Advocacy Clinic where students represent LGBT individuals in immigration and prisoners’ rights cases and undertake advocacy projects to advance LGBT equality. The conversation starts with Prof. Hazeldean describing the types of cases students handle during their time with the clinic. She also discusses a recent decision by the New York Court of Appeals, In the Matter of Brooke S.B. v Elizabeth A.C.C., in which the court reversed its 25-year-old ruling in the Matter of Alison D v. Virginia M., 77 N.Y.2d 651 (1991), which refused a non-biological lesbian mother standing to sue for visitation with the child that she had parented for six years because she was not a “parent” within the meaning of the New York Domestic Relations Law.
The conversation shifts to Rachel Russell and upcoming projects hosted by OUTLaws. OUTLaws is an organization of lesbian, gay, bisexual, transgender, queer (LGBTQ) students and straight allies within the BLS community. The group’s goals are to provide educational, political and social events for students and to foster connections with alumni and the legal community at large. OUTLaws programming addresses issues affecting LGBTQ civil rights, sponsors guest speakers, supports activism, and increases the visibility of LGBTQ people within the profession.
On August 25, 1916, President Woodrow Wilson signed into law the Organic Act which Congress passed to create in the Department of the Interior the National Park Service. The aim of the law was “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
When the law was enacted, there were already 35 national monuments and parks including Yosemite National Park established in 1864 and Yellowstone National Park established in 1872. Today, the National Park Service has 140 national monuments and parks, 128 historical parks or sites, 25 battlefields or military sites, 19 preserves, 18 recreation areas, 10 seashores, four parkways, four lakeshores, and two reserves. The biggest park is Wrangell-St. Elias National Park and Preserve in Alaska established in 1980 containing 13.2 million acres. It is the same size as Yosemite, Yellowstone and the country of Switzerland combined. The smallest site is the Thaddeus Kosciuszko National Memorial in Philadelphia established in 1972 sitting on 0.02 acres. The highest point in the system is Denali (or Mount McKinley) at 20,320 feet. The lowest accessible point is Death Valley National Park, at 282 feet below sea level. The newest National Monument is Katahdin Woods and Waters in Maine which President Barack Obama designated this week for the 100th anniversary of the National Park Service. See NPR web page In Maine, Land From Burt’s Bees Co-Founder Is Declared A National Monument discussing the controversial designation of the woods as protected territory especially from locals concerned about federal oversight of lands that used to be central to the regional economy.
With an annual budget of $2.6 billion, the National Park Service has about 20,000 direct employees and supports 240,000 local jobs generating $27 billion for the U.S. economy. More than 307 million people visited Park Service locations in 2015 compared to 1920 when NPS sites were visited by 1 million people. Brooklyn does not have a national park but this week Brooklyn Bridge Park hosted a National Park Service celebrating the100th anniversary of its founding. Nearby sites such as the Statue of Liberty and Ellis Island are both part of the NPS. Other NPS locations in New York City include the African Burial Ground National Monument, the Lower East Side Tenement Museum, the Theodore Roosevelt Birthplace National Historic Site and Castle Clinton National Monument.
Brooklyn Law School Library users can explore OneSearch to find a large set of articles about the history of the National Park Service such as the National Parks: America’s BEST Idea? from Parks & Recreation Aug 2016, Vol. 51 Issue 8, page 44.
In a major victory for libraries and public access to great literature, the Israeli Supreme Court this week issued a ruling concluding an eight-year legal battle about ownership of the literary works and letters of Franz Kafka. The series of court cases between Israel and the heirs of Max Brod, executor of the estate of Prague-born writer Franz Kafka began in 2009. Kafka’s last will and testament transferred all of his manuscripts to Brod after his death in 1924. A March 2015 article The Betrayed(?) Wills of Kafka and Brod by Nili Cohen, 27 (1) Law & Literature 1 (available to Brooklyn Law School Library users through a subscription to the Taylor & Francis Online Journal Library) relates that Kafka in separate letters entrusted his manuscripts and works to Brod instructing him to burn them after his passing. Brod did not honor Kafka’s request and took the papers with him when he fled Czechoslovakia in 1939 and emigrated to Palestine. After the 1968 death of Brod, his will bequeathed the papers to his secretary Esther Hoffe with instructions to give them to the “Hebrew University of Jerusalem, the municipal library in Tel Aviv or another organization in Israel or abroad”. Instead Hoffe kept the papers and shared them with her two daughters and even began to sell them. In 1988, Hoffe sold an original copy of Kafka’s The Trial for $2 million. The 2007 death of Hoffe, more than 80 years after Kafka’s death, touched off a lengthy court fight between Israel and Hoffe’s daughters who claimed the papers were given to their mother by Brod so she could dispose of them as she wanted.
The WSJ Law Blog reports that Hoffe’s daughters refused the Israeli government’s demands to hand over the documents. The case turned on questions of inheritance law and whether Hoffe was entitled to give instructions about Brod’s literary legacy in her will. “Max Brod did not want his property to be sold at the best price, but for them to find an appropriate place in a literary and cultural institution” Israel’s high court stated in its opinion in which it directed that the papers should belong to the National Library of Israel in Jerusalem.
Both Kafka and Brod studied law in Prague’s Karl University and Kafka devoted much of his literary work to the law. His letters to Brod to destroy his manuscripts was not a binding legal document as they included neither the title “Will” nor a date, suggesting that Kafka intended to ask his friend to honor a moral, not a legal, obligation. Kafka’s uncertain attitude towards law is expressed in his greatest novel, The Trial, which he wrote from 1914 to 1915. The novel was published in 1925 after Kafka’s death. Years later, Orson Welles wrote a screenplay based on the novel and directed the 1962 masterpiece The Trial (Call No. PT2621.A26 T75 1998) which the BLS Library has in its video collection. The story centers on the main character, Josef K, who wakes up one morning to find the police in his room. They tell him that he is on trial but no one tells him what the charges are. His efforts to learn the details of the charges and to protest his innocence remain fruitless. As he tries to look behind the facade of the judicial system, he finds he has no way to escape his nightmare.
The William S. Hein Company has added program materials from the ABA Center for Professional Development‘s National Institutes, to their digital legal library collection, HeinOnline. These substantive materials are assembled each year by the faculty for these in-person programs and represent original analyses of legal developments in the subject areas being addressed. Coverage begins with 2012.
Below are examples of 2016 Institutes:
To access this material select Hein from the Quick Links menu on the Library’s Webpage
In the Browse Collections by Names box, expand ABA Law Library Collection Periodicals
The U.S. Government Publishing Office (GPO) has launched a beta version of its new GovInfo web site. After it completes its beta phase, Govinfo will replace FDsys, the federal government website currently providing free public access to over 50 different collections of federal government information, including the United States Code, the Code of Federal Regulations, Congressional materials, and selected federal case law. Users of GovInfo can browse by A-Z list, by category, by date, and by congressional committee content. To see a list of collections available on Govinfo, visit here.