Category Archives: Judiciary

Supreme Court To Decide If and When RICO Reaches Extraterritorially

On October 1, 2015, the United States Supreme Court granted certiorari to the Second Circuit decision in European Community v. RJR Nabisco, 764 F.3d 129 (2d Cir. 2014). In granting review, the Court will determine whether or not RICO has extraterritorial reach. In examining this issue, the Court may also rule on how to decide whether RICO claims involving multinational parties are domestic ones, and how to determine whether it is an improper or proper extraterritorial claim.

If you would like to learn more about the Racketeer Influenced and Corrupt Organization Act (RICO), check out the library resources below.

Ending the Death Penalty

On June 29, 2015, the final day of its 2014 term, the US Supreme Court ruled in Glossip v. Gross. The Court, in a 5-4 opinion by Justice Alito, ruled that death-row inmates had failed to establish a likelihood of success on the merits of their claim that the use of midazolam, a sedative in Oklahoma’s lethal injection protocol, violates the Eighth Amendment because it fails to render a person insensate to pain. Today, Glossip is scheduled to die by the controversial method that the Court greenlighted this summer unless there is a stay of execution. The case is likely not the final word on the death penalty. Justice Scalia this week Scalia told students at a Memphis college that he “wouldn’t be surprised” if the Supreme Court ruled the death penalty unconstitutional citing Justice Breyer’s dissent that it is time to consider whether the Eighth Amendment bars capital punishment in all cases.

Breyer is not the first Supreme Court justice to invite constitutional debate about the death penalty. Several justices in Gregg v. Georgia, 428 US 153 (1976) bringing back the death penalty later came to reject it. Justice Powell told his biographer that the death penalty should be abolished. Justice Blackmun, wrote in 1994 that he would no longer “tinker with the machinery of death.” In 2008, Justice Stevens wrote that his review of hundreds of cases had persuaded him that the penalty is both profoundly unworkable and unconstitutional. Justice Breyer in his dissent in Glossip argued that the death penalty is unreliable and arbitrary in application citing the long delays that undermine its purpose, convinced that we have executed the innocent. In Rudolph v. Alabama, 375 U.S. 889, (1963), Justice Goldberg’s dissent also suggested that capital punishment might violate the Eighth Amendment. That dissent prompted statewide moratoriums and encouraged cases to be brought to the Court challenging the constitutionality of capital statutes. A decade later, the Court struck them all down in Furman v. Georgia, 408 U.S. 238 (1972). Perhaps, in the wake of Glossip, we are about to travel down that path once again.

BarbellaOn the subject of capital punishment, Brooklyn Law School Library has The Trials of Maria Barbella: The True Story of a 19th Century Crime of Passion by Idanna Pucci (Call #HV6053 .P83 1996). This book illustrates the debate over the death penalty in the late 19th Century in the story of the trial of Maria Barbella for the murder of Domenico Cataldo in New York City on April 26, 1895. Maria and her family immigrated to New York in 1892. She met and became friendly with Cataldo, also from the same region of Italy. One day Cataldo took her to a boarding house, drugged her with the drink he bought her, and took advantage of her. With strong morals about intimacy and marriage, Maria said that they would have to get married. He promised they would marry in several months, even though he was already married to a woman in Italy, with whom he had children. Later Cataldo told Maria that he was going back to Italy and would not marry her. When Maria and her mother confronted him and insisted he marry Maria he said the only way he would do that was if they paid him $200. As the mother stormed away, Maria asked, one last time, whether she would be his wife. When he replied that “Only a pig would marry you“, she drew out her razor and killed him by cutting his throat.

Thus began the saga of Maria Barbella, who shortly became the first woman sentenced to die in the electric chair. She was arrested and put in the New York Halls of Justice and House of Detention (otherwise known as “The Tombs”) for more than two months. Her trial began on July 11. Maria was unable to speak or understand English. She admitted everything: how she slit his throat and how he ran after her, unable to reach her and dropped dead. The jury showed sympathy for her case; but trial Judge John W. Goff asked the jury not to have mercy on Maria. He said, “Your verdict must be an example of justice. A jury must not concern itself with mercy. The law does not distinguish between the sexes. The fragility of the female sex is sometimes involved to excuse savage crimes. We cannot publicly proclaim a woman not guilty of killing a man solely because this man has proposed marriage and then changed his mind!” The jury declared her guilty. On July 18, 1895, Judge Goff sentenced her to “execution by electricity” and sent her to Sing Sing Prison, the first female convict held there in 18 years and the first one on death row.

The case stirred up controversy in the Italian community which felt that the verdict was unjust with no Italians on the jury. Many complained to the Governor about how the trial was handled. On April 21, 1896, the Court of Appeals of New York in People v Barberi, 149 N.Y. 256 (also available on Westlaw Next at this link) ruled that the judgment of conviction should be reversed and a new trial granted. In the second trial at the criminal branch of the New York Supreme Court, she was said to be epileptic and mentally ill because of everything that had happened. She was found not guilty.

NYC Charter Revision Commission Materials Available on BrooklynWorks

fca0bafe8dd2aa68fafbfd4e4291b5c9Recently, the Library completed a digitization project of the papers of Brooklyn Law School’s former dean, the Honorable David. G. Trager. The documents published relate to Judge Trager’s work on two successive New York City Charter Revision Commissions: December 1986-Novemer 1988 and December 1988-November 1989. The digitized documents were selected from materials he donated to the Brooklyn Law School Archives. To access the entire collection, you can contact the reference desk ( and make an appointment to visit the archives.

Judge Trager was born in Mount Vernon, New York and graduated from Columbia University in 1959 and Harvard Law School in 1962. After four years in private practice, he dedicated his life to public service, fulfilling many roles, including law clerk, federal prosecutor, teacher, state investigation commissioner, administrator, and jurist. From 1974 – 1978, he served as United States Attorney for the Eastern District of New York. Afterward, he began a fifteen-year tenure at Brooklyn Law School, first serving as Professor of Law (1978 – 1983) and then as its Dean (1983 – 1993). In 1993, President Bill Clinton appointed him to the United States District Court for the Eastern District of New York. He attained senior status on March 1, 2006. Judge Trager passed away on January 5, 2011 at the age of 73.


Fifty Year Anniversary of the Voting Rights Act of 1965

Today is the fiftieth anniversary of the enactment of the Voting Rights Act of 1965 guaranteeing voting rights for black citizens. It was a huge step toward protecting the right to vote for all Americans. President Lyndon Johnson’s signing of the Voting Rights Act began to address America’s long history of denying black Americans the right to vote. For 100 years, the 15th Amendment, which guarantees the right to vote regardless of “race, color, or previous conditional of servitude” was made useless by tactics like secret ballots, poll taxes, literacy tests and other practices that made it impossible for most blacks to vote. When these laws were in place, black voting plummeted throughout the south. According to the Constitutional Rights Foundation, in Mississippi alone the percentage of black voting-age men who were registered to vote fell from 90% during the Reconstruction period after the 15th Amendment’s passage to about 6% in 1892. By 1940, only about 3% of eligible blacks in the south were registered to vote.

After decades of state and local officials acting to disenfranchise African Americans through the use of both legal and illegal tactics, there was little action from Congress. But the passage of the Civil Rights Act of 1964, along with the reaction to the violence inflicted on voting-rights protesters marching from Selma to Montgomery, Alabama, in March 1965, prompted federal legislators to respond. Together with other laws, the Voting Rights Act outlawed literacy tests and gave the U.S. Department of Justice authority to challenge the use of poll taxes in state and local elections. Passage of the 24th Amendment in 1964 already barred the use of poll taxes in national elections. Section 2 of the Voting Rights Act essentially restated the 15th Amendment, prohibiting any voting rules or procedures that discriminate on the basis of race or color. Amendments to the law in 1975 extended its protections to members of a language minority group, such as speakers of Spanish or Native American languages. Additional amendments in 1982 permitted citizens challenging voting regulations under Section 2 to prove only that, in the “totality of the circumstance of the local electoral process,” the rules abridge voting rights.

The original Voting Rights Act provided for special intervention in jurisdictions where racial discrimination is believed to be greatest. Under Section 5, those parts of the country identified by a formula established in Section 4 must obtain “pre-clearance” from the DOJ or the U.S. District Court of the District of Columbia before making any changes to its voting laws. However, the Supreme Court in Shelby County v. Holder, 570 U.S. 2 (2013), struck down the Section 4 formula, leaving Section 5 intact but requiring legislators to redraw its coverage before further enforcement. Since then, several amendments have been proposed but Congress has not yet acted.

Now, fifty years later, the nation still faces restrictions on voting rights. Voting rights cases are taking place in North Carolina, and in Ohio and Wisconsin, where two other voting lawsuits ended only recently. And one day before the Voting Rights Act turned 50 years old, U.S. 5th Circuit Court of Appeals ruled in Veasey v. Abbott that the Texas voter ID law had a “discriminatory effect” that violates the federal law that prohibits racial discrimination. In the months and years ahead, the fate of the Voting Rights Act will be decided in Congress and in the courts. But its legacy as the singular triumph of the civil rights movement will remain strong.

Latinos and VRAThe Brooklyn Law School Library has many titles in its collection on the subject of the Voting Rights Act. The latest is Latinos and the Voting Rights Act: The Search for Racial Purpose by Henry Flores (Call # KFT1620.85.A6 F56 2015). It explores the role race and racism played in the Texas redistricting process and the creation and passage of the state’s Voter Identification Law in 2011. In addition to reviewing the redistricting history of the state, the book provides an analysis of court decisions concerning the Tenth Amendment to the Constitution, the Voting Rights Act, and a thorough discussion of the Shelby County decision. Flores brings together scholarly research and the analysis of significant Supreme Court decisions focusing on race to discuss Texas’ election policy process. This is the first book that speaks specifically to the effects of electoral politics and Latinos. Flores concludes that the tense race relations between Anglos and Latinos in Texas affected both the redistricting process and the creation of the Voter ID Bill.

Two Landmark Supreme Court Decisions in Two Days

The United States Supreme Court on Thursday, June 25, 2015 upheld federal health insurance subsidies for moderate and low income Americans as part of the Patient Protection and Affordable Care Act of 2010.

The vote was 6-3, with the majority opinion written by Chief Justice John Roberts, Jr. The Court ruled that subsidies are valid even in those states that did not set up their own exchanges. This decision, in King v. Burwell, was the second time in three years that the Supreme Court upheld provisions of “Obamacare,” that otherwise might have decimated the law.  The Court upheld the law’s individual mandate in 2012 in National Federation of Independent Business, et al. v. Sebelius.

The Court also handed down another major decision on Friday, June 26, 2015 in Obergefell v. Hodges. By a vote of 5-4, the Court ruled that states cannot ban same-sex couples from getting married.  This decision establishes a national right to same-sex marriage throughout the country and requires states to recognize same-sex marriages performed in other states. The majority opinion was written by Justice Anthony Kennedy.


The Supreme Court Crafts a New Standard in Pregnancy Discrimination Cases – Young v. UPS

On March 25, 2015, the Supreme Court handed down Young v. United Parcel Service and set forth a new standard making it easier for a female employee to establish discrimination under the Pregnancy Discrimination Act [42 U.S.C. 200e(k)] (“PDA”).  The Pregnancy Discrimination Act, which amended Title VII in 1978, explicitly provides that discrimination “because of sex” or “on the basis of sex” includes discrimination on the basis of “pregnancy, childbirth, or related medical conditions.”

The Young case arose when UPS offered light-duty accommodations to disabled and injured employees but not to pregnant employees.  Young alleged this policy violated the PDA.

In Young, the Court did not go as far as to say that employers must accommodate pregnant workers whenever they accommodate non-pregnant workers.  What the Court did say is, whenever different accommodations are provided to similarly situated pregnant and non-pregnant workers, the employer must determine whether there is any legitimate reason for the disparate treatment. If no legitimate reason exists, then the employer has discriminated on the basis of pregnancy in violation of the PDA.  Even when the employer is able to articulate a neutral business rational for the different accommodations, the Court ruled that the pregnant worker must still be given the opportunity to show that the different accommodations impose a “significant burden” on pregnant workers that cannot be justified by the employer’s neutral rationale.

Going forward, the Young decision means that a pregnant worker will not be required to establish explicit discriminatory intent to prove a PDA violation.  Instead, under Young, it is sufficient for the worker to show that different accommodations offered to similarly situated pregnant and non-pregnant workers impose a “significant burden” on pregnant employees.


Brooklyn’s Eastern District Federal Court: 150 Years

This Monday in the courthouse on Cadman Plaza East in Downtown Brooklyn, two Justices of the US Supreme Court, the Hon. Ruth Bader Ginsburg and the Hon. Sonia Sotomayor, both of whom hold honorary degrees from Brooklyn Law School (Ginsburg receiving hers in 1987 and Sotomayor being awarded her Degree of Juris Doctor Honoris Causa in 2001), attended a ceremony celebrating the 150th anniversary of the Eastern District of New York (EDNY). The actual date of the first EDNY court session was March 22, 1865 after President Abraham Lincoln, on Feb. 25, 1865, signed the bill creating the Eastern District. Monday’s celebration looked back at the humble beginnings of the court, noting the progress towards diversity and the application of justice over the years. It also looked at a district that has become one of the most respected and revered federal courts in the country.

The courthouse for the Eastern District has occupied several sites over the years: its first session convened in a room at Brooklyn City Court; it then moved to two separate locations on Montague Street and in 1891 settled in the backyard of 40 Clinton St. At one point the court rented space in the “Brooklyn Daily Eagle Building …for overflow Chambers and offices,” noted a History of the United States Court for the Eastern District of New York, prepared by the Federal Bar Association of New York, New Jersey and Connecticut.
In her remarks, Justice Ginsburg, Brooklyn-born and an alumna of James Madison High School, said “The birth of this court, 150 years ago, is cause for celebration…In its early years…the court only had one judge.” For the first 46 years of the district’s existence, one judge handled all of the court’s business, and in 1910, a second judge was added to assist with the caseload. It was not until a high rate of litigation during and after World War I when more judgeships were created for the Eastern District.

The second female to sit as a justice in the highest court of the land, Ginsburg remarked on the diversity of the Eastern District bench, mentioning the first “woman to break that barrier in the Eastern District, Reena Raggi, in 1987.” Raggi now sits on the U.S. Circuit Court of Appeals for the Second Circuit. Ginsburg stated “For me, it is an incredible dream come true that the majority of the [EDNY] court’s active judges are women and that the composition of this bench mirrors the diversity of the communities the court serves.” There are currently 12 female district judges serving the Eastern District of New York,  all in active and not in senior status. Justice Sotomayor did not speak at Monday’s event but will officiate a naturalization ceremony in October to commemorate the court’s anniversary.Providing hope for another 150 years of the Eastern District, Ginsburg concluded, “May the U.S. District Court of the Eastern District of New York continue to flourish, serving all of the people … [and] to serve and [provide] justice that is equal and accessible to all…We can’t let our history die with those who know it.”

Monday’s ceremonies included remarks by Former Chief Judge Jack B. Weinstein, who recalled sitting on his parents’ shoulders as they watched Civil War veterans ride down Grand Central Parkway in the 1920s. He said: “Over the years, our judges and magistrate judges, despite a huge increase in number, have continued to share a deep affection—and an unwavering desire to provide the rule of law to all our people in this district.”

For a history of the Eastern District, see in the BLS Library the short 95 page book titled To Administer Justice on Behalf of All the People: The United States District Court for the Eastern District of New York 1965-1990 by Jeffrey B. Morris (Call # KF8755.N49 M67 1992).

When is an online post a threat?

This week the United States Supreme Court heard oral arguments in Elonis v. United States. The issue before the high court is what level of intent does the prosecution have to show in order to convict someone of threatening another person under 18 U.S.C. § 875(c). Must the prosecution demonstrate that the defendant intended to cause fear? Or must the prosecution show that a reasonable person would regard the statement as threatening?   The case involves Facebook posts a husband made to his wife, who recently left him. His posts detailed ways to kill her. To access the case’s Supreme Court docket, transcript, and the amicus briefs, read the SCOTUS blog posting.

To learn more about free speech and/or how it intersects with criminal law, consult the library resources highlighted below.

Brooklyn Ascendant in DC

As supplement to the November 17 post, readers may want to look at the November 24 issue of the New Yorker which has an article called More Brains by Jeffrey Toobin. In it the author  discusses the nomination of U.S. Attorney for the Eastern District of New York Loretta Lynch to run the Department of Justice. The article also mentions the rivalry between the prosecutors of the Eastern District, often seen as a kind of junior varsity with respect to their colleagues in the Southern District, across the East River. U.S. District Judge John Gleeson, a former prosecutor in the Eastern District and a former adjunct professor at BLS, is quoted as saying “I get the Hertz-Avis reputations of the two offices. But I honestly don’t feel any kind of inferiority complex. Maybe there’s some more humanity over here, some different attitudes. Loretta is a modest prosecutor.” Toobin goes on to say “Even before Lynch’s nomination, the Eastern District brand was ascendant in Washington. There is already a considerable Brooklyn mafia (so to speak) in prominent positions in the Justice Department.” He quotes Gleeson as saying, “Everyone knows Brooklyn is cooler now than Manhattan. My law clerks all want to live in Brooklyn, but they can’t afford it. They have to live on the Upper East Side.”

Happy 225th Anniversary to “Mother Court”

from Third Branch News Blog

A 225th anniversary ceremony honoring the first-ever federal court session held court2under the U.S. Constitution and Judiciary Act, was held Nov. 4th in the ceremonial courtroom of the U.S. District Court for the Southern District of New York.

The ceremony honored a court session held Nov. 3, 1789, in the Royal Exchange Building in Manhattan.  The session, conducted by Judge James Duane, occurred three months before the U.S. Supreme Court also met in the Royal Exchange, which no longer exists. The 1789 session gives the Southern District of New York claiming rights as the nation’s “Mother Court”—although the first sitting was not momentous, adjourning immediately without hearing any cases.

The Library recently acquired the book, The Mother Court: Tales of Cases That Mattered in America’s Greatest Trial Court. It is the first book to chronicle the history of the US District Court for the Southern District of New York, the most influential District court in the United States. It gives first-hand insight into the evolution of our justice system where it has been, where it is now and where it is going. It provides an anatomy of what a trial is all about in an American courtroom, featuring the most famous trials of the period in the greatest court in the nation.