Category Archives: New York

Let My People Dance

After years of efforts to repeal New York City’s outdated Cabaret Law, the City Council is on the verge of repeal. The New York Times reports today that After 91 Years, New York Will Let Its People Boogie. The “no dancing” law is set to be struck down with a new bill tomorrow according to a report. Councilman Rafael Espinal told the newspaper that he has the 26 votes needed to pass a repeal through City Council, as well as Mayor Bill de Blasio’s approval. In 1926, while liquor was bootlegged and Jazz was shaking things up in Harlem, New York City instituted the Cabaret Law that required establishments serving food or drink to obtain a separate license before permitting any dancing or live music on their premises. This law successfully sought to police and restrict the interracial mixing happening in dance clubs uptown. Almost 100 years later, though times and racial attitudes have changed, the Cabaret Law is not only still in effect and enforced, but contemporary zoning regulations effectively make dancing illegal in large parts of the city.

Drafted by Brooklyn Council Member Rafael Espinal (D-37), first elected to the New York State Assembly at the age of 26 and currently in his first term as a council member, the bill will address a pernicious, racially motivated law that has followed “fringe” musical scenes in the city for nearly a century.

gigsThe Brooklyn Law School Library has in its collection Gigs: Jazz and the Cabaret Laws in New York City (Call No. PN2277.N5 C51 2005) by Paul Chevigny, an attorney and former civil rights activist, who recounts his efforts to repeal New York’s Cabaret Law. The book is also available as an e-book. Gigs provides a fascinating account of a unique victory for musicians against repressive entertainment licensing laws. It provides a much-needed study of the social, political, cultural and legal conditions surrounding a change in law and public attitudes toward vernacular music in New York City.

Labor Day Holiday

imageWith  labor union membership under 12% of the US workforce from a high of 33.2% in 1955, most Americans still appreciate a day off to barbecue, a marked contrast from storming the barricades as occurred during 19th century Labor Days. In the US, Labor Day takes place on the first Monday in September by law. See 5 U.S. Code § 6103. Outside the US, Labor Day falls on May 1. The two separate Labor Days cause some confusion. Labor Day and May Day have in common the celebration of laborers from an era when labor was more grueling than what we think of today. The first Labor Day occurred in NYC’s Union Square on September 5, 1882, when 10,000 union workers marched in a parade honoring American workers, who at the time had none of the labor laws we now take for granted. Labor Day sentiment spread across America when, in 1887 Oregon, followed by a number of other states, adopted Labor Day as a holiday.

The adoption of the holiday did not remedy the labor situation in Industrial Revolution-era America. In 1894 the railroad system was nearly halted by a strike against the Pullman Palace Car Company, a company that mistreated its workers. In reaction to the strike, President Grover Cleveland mobilized federal troops which escalated the violence resulting in several deaths. President Cleveland, in an effort to appease an angry public, passed a bill making Labor Day a national holiday. Labor Day continues as a reminder of the struggle of the labor workforce.

Outside the US, laborers are honored on May Day also known as International Workers’ Day. This holiday was instituted worldwide in response to the Haymarket Riot of 1886, a peaceful protest gone awry with another violent altercation against the Chicago workforce by the police. Although the events leading to the creation of May Day took place in America, the US never adopted it as a legal holiday. It was embraced in the Soviet-bloc. With the fall of communism, the holiday is now removed from its violent origins, much like Labor Day in America, now little remembered for the labor required for this holiday.

Consider the debates that animated Chicago’s inaugural Labor Day celebration in 1885:

On Sunday, September 6th, organized labor’s most radical wing led a preemptive march of more than 5,000 persons in an anarchist and socialist-led demonstration, which included representatives from different unions carrying banners with messages such as: “The greatest crime today is poverty!”; “Capital represents stolen labor”; and “Every government is a conspiracy of the rich against the people.” The city’s rank-and-file had decided to boycott the festivities on the grounds that the red flag, radicalism’s most potent symbol, had been expressly banned. The dispute was symptomatic of larger differences within labor’s camp. The anarchist Sam Fielden emphasized these in his remarks, declaring, “There is going to be a parade tomorrow. Those fellows want to reconcile labor and capital. They want to reconcile you to your starving shanties.” The Chicago Daily Tribune decried the radical demonstration in an article entitled “Cutthroats of Society,” which began, “With the smell of gin and beer, with blood-red flags and redder noses, and with banners inscribed with revolutionary mottoes, the anarchists inaugurated their grand parade and picnic.”

Monday, September 7th, saw another parade by the mainstream Trade and Labor Assembly. They, too, carried banners with more moderate tones: “Do unto others as you would have others do unto you”; “We do not ask for charity, but simple justice”; and “Eight hours for work, eight hours for rest, eight hours for recreation.” The Trade and Labor Assembly’s march received more favorable reviews from middle-class voices and was even outright celebrated by some. But respectable opinion could turn as rapidly on the trade unions as it did on the anarchists. Just two months before Labor Day, the police had violently subdued a streetcar workers’ strike. In the process they won the admiration of many middle-class Chicagoans, including one minister who used his pulpit to urge the authorities to maintain order, even if it required them “to mow down the crowds with artillery.”

These glimpses of the tensions in earlier Labor Day celebrations show major differences between the late 19th century Gilded Age and current times. Today, we see disparities between rich and poor nearing historic proportions, yet Americans do not debate the morality of capitalism that consumed those who lived through industrialization’s peak decades. The Gilded Age is a world removed from our own and yet one that on Labor Day is worth revisiting. Users of the Brooklyn Law school Library can get a sense of that period by reviewing the book in the BLS collection New York Labor Heritage: a Selected Bibliography of New York City Labor History by Robert Wechsler, Call No. Z7164.L1 W38.

National Park Service 100th Anniversary

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.”

NPSWhen 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.

Judicial Review and Alexander Hamilton

Independence Day 2016 marks the 240th anniversary of the Second Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. This milestone in US history is observed by Americans, young and old, as a national holiday on the same calendar date each year. If July 4 is a Saturday, it is observed on Friday, July 3. If July 4 is a Sunday, it is observed on Monday, July 5. This year government offices and schools are closed on Monday, July 4. See 5 U.S. Code § 6103. The library at Brooklyn Law School has reduced hours on Monday and will be open from 9am to 5pm so law students can study for the bar exam scheduled at the end of July.

RutgersIn Constitutional Law courses law students at BLS and throughout the country learn that the decision by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803) is arguably the most important case in American law. It was the first U.S. Supreme Court case to apply the principle of “judicial review”, the power of federal courts to void acts of Congress in conflict with the Constitution. However, a newly acquired title in the BLS Library collection, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review by historian Peter Charles Hoffer (Call No. KF228.R877 H64 2016) makes clear that Marbury was not the first court in the new American Republic that considered the argument that a legislative enactment in conflict with a state or federal constitutional provision is void. One of the first decisions to address the question was Rutgers v. Waddington, decided in the Mayor’s Court in the City of New York on August 7, 1786. The case is important to American constitutional law because defendants’ primary attorney who argued for an expansive notion of judicial power was Alexander Hamilton, who advocated for the principal of judicial review in Federalist Paper No. 78.

The case was presented on June 29, 1784 with Chief Justice James Duane presiding. The facts showed that Plaintiff Elizabeth Rutgers owned a large brewery and alehouse on the northern side of Maiden Lane near where Gold Street now enters it. The brewery extended from Smith (now William) Street on the west, to Queen (now Pearl) Street, on the east; and from Maiden Lane, on the south, to John Street on the north. It was one of the most notable features in what is now the Financial District.  Plaintiff was forced to abandon the brewery during the British occupation of New York City. Under the Trespass Act of 1783, which permitted patriots to sue loyalists for damages to property in occupied areas of the state, Rutgers demanded rent from Joshua Waddington who had been running the brewery since it was abandoned. Alexander Hamilton, attorney for the defense, argued that the Trespass Act violated the 1783 peace treaty ratified earlier by Congress. Chief Justice Duane delivered a split verdict awarding Rutgers rent only from the time before the British occupation. The case was ultimately settled by the two parties. Importantly the case set a precedent for Congress’s legal authority over the states. In his ruling, Chief Justice James Duane wrote that “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.”

Brooklyn Law School’s Scholarship & Special Collections

brooklynworks

BrooklynWorks is the online repository of Brooklyn Law School, providing open access to scholarship produced by the law school and to other collections of law school materials. The repository is a service of the Brooklyn Law School Library. Current collections focus on faculty scholarship, the law school’s journals and library special collections.

Within the law Journals collection, you can browse or search issues of the Brooklyn Law Review, the Brooklyn Journal of International Law, the Journal of Law & Policy, and the Brooklyn Journal of Corporate, Financial, & Commercial Law.  Within the faculty scholarship collection, you can browse or search Brooklyn Law School’s faculty publications going back to 2010.

Within the Special Collections, you can browse the papers of David Trager from the 1986-1989 New York City Charter Revision Commissions.  Included in this historic collection are various drafts of the New York City Charter, meeting minutes and letters to the members of the commission.  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 (refdesk@brooklaw.edu) and make an appointment to visit the archives.

Court Ruling in Touro Synagogue Dispute

This week the NY Times published an intriguing article on the resolution of a four year legal battle over ownership of personal property, silver Torah ornaments called rimonim, used in worship services in the nation’s oldest existing synagogue, Touro Synagogue in Newport, RI.  Judge John J. McConnell, Jr of the US District Court for the District of Rhode Island issued a 106 page opinion in favor of Congregation Jeshuat Israel, worshippers at the 252-year-old Touro Synagogue in Newport who have been battling Shearith Israel in New York City for control of the temple and the right to sell a pair of historic ceremonial ornaments worth millions of dollars. The suite was originally filed in Rhode Island Superior Court, Newport County, in November 2012 and later removed to federal court. Judge McConnell’s opinion begins;

Bricks and mortar of a temple, and silver and gold of religious ornaments, may appear to be at the center of the dispute between the two parties in this case, but such a conclusion would be myopic. The central issue here is the legacy of some of the earliest Jewish settlers in North America, who desired to make Newport a permanent haven for public Jewish worship. Fidelity to their purpose guides the Court in resolving the matters now before it.

torah bellsTouro Synagogue was established in 1763. During and after the Revolutionary War, most of the Newport’s Jewish residents moved away, many of them to New York. By the 1820s, no Jews were left in Newport, and Congregation Shearith Israel became Touro’s trustee. The two congregations began to feud when the Touro congregation tried in 2012 to sell the bells made by a noted 18th-century silversmith, Myer Myers to the Museum of Fine Arts in Boston for $7.4 million to improve the synagogue’s fiscal health. The New York congregation protested and Congregation Jeshuat Israel filed the lawsuit. Since, the museum withdrew the offer leaving the dispute to be decided by the federal court.

Touro Synagogue has become a national historic site drawing visitors from all over the world every year. Its most famous visitor was the nation’s first president George Washington who in 1790, stopped at Touro. After his visit he sent the congregants a letter saying the government of the United States “gives to bigotry no sanction, to persecution no assistance.” It is considered an important pledge of the new nation’s commitment to religious liberty. A search of Brooklyn Law School Library’s ProQuest Congressional database, available to members of the BLS community, will lead to 107 H. Con. Res. 62 dated July 17, 2001. The title of the resolution is “Expressing the Sense of Congress That the George Washington Letter to Touro Synagogue in Newport, Rhode Island, Which Is on Display at the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, Is One of the Most Significant Early Statements Buttressing the Nascent American Constitutional Guarantee of Religious Freedom”.

Copyright and “We Shall Overcome”

Earlier this month, a class-action complaint was filed in the US District Court for the Southern District of New York in the case of We Shall Overcome Foundation v. The Richmond Organization, Inc. (TRO Inc.) et al. addressing ownership of “We Shall Overcome,” the unofficial anthem to the civil rights movement and a song the Library of Congress called “the most powerful song of the 20th Century”.  According to the late folk singer Pete Seeger, the song became associated with the Civil Rights Movement in 1959, when Guy Carawan sang it  at Highlander, which was then focused on nonviolent civil rights activism. Seeger and other famous folksingers in the early 1960s, such as Joan Baez, sang the song at rallies.

The copyright dispute against the two music-publishing companies, Ludlow Music and the Richmond Organization, seeks a judgment from the court declaring that the defendants’ copyright claim is invalid and ordering the defendants to disgorge previously collected licensing fees. According to the complaint, defendant TRO filed copyrights for “We Shall Overcome” in 1960 and 1963 and has collected millions of dollars in fees over the decades. The law firm for the plaintiff is Wolf Haldenstein, which was involved in the recent successful challenge to Warner/Chappell Music’s claims that it owned the copyright to “Happy Birthday to You.”

The filing argues that TRO-Ludlow’s copyright claims were invalid for several reasons: because it had not been renewed (as required by United States copyright law at the time), the copyright of the 1948 People’s Songs publication containing “We Will Overcome” had expired in 1976. Additionally, it was argued that the registered copyrights only covered specific arrangements of the tune and “obscure alternate verses”, that the registered works “did not contain original works of authorship, except to the extent of the arrangements themselves”, and that the registered copyrights stated that the works were derivatives of a work entitled “I’ll Overcome” which did not exist in the database of the United States Copyright Office.

music businessThe Brooklyn Law School Library has in its collection several items related to copyright and music. See for example All You Need to Know about the Music Business by Donald S. Passman (Call # ML3790 .P35 2015) which is on Course Reserve at the Circulation Desk. For more than twenty years, this book has been universally regarded as the definitive guide to the music industry. Now in its ninth edition, this latest edition leads novices and experts alike through the crucial, up-to-the-minute information on the industry’s major changes in response to today’s rapid technological advances and uncertain economy.

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.

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.

Alcohol Prohibition and Repeal

Eighty-two years ago, on December 5, 1933, Amendment XXI to the US Constitution was ratified, repealing Amendment XVIII which had mandated nationwide Prohibition on alcohol on January 17, 1920. The Twenty-First Amendment is the only one of the 27 amendments of the U.S. Constitution to repeal a prior amendment. It is also unique as having been ratified by state ratifying conventions rather than by state legislatures.

The story of National Prohibition of alcohol and its ultimate repeal seems an historical oddity with little meaning for 21st Century life. Yet only recently in November 2012, voters in Colorado and Washington voted to legalize the production and sale of cannabis for social use, a first not only in the United States but also the world. Medical cannabis is now legal in twenty states and Washington, D.C., and many Americans use it in place of conventional pharmaceuticals. Nevertheless the federal government continues to raid and arrest people: 49.5 percent of all drug-related arrests involve the sale, manufacture, or possession of cannabis.

AmendmentsThe story of alcohol prohibition under the Volstead Act is worth reviewing. Much of it is told in the Brooklyn Law Library’s copy of Amendments XVIII and XXI: Prohibition and Repeal by Sylvia Engdahl (Call # KF3919.A844 2009). Its 160 pages discuss the social and cultural forces that lead to Prohibition, the unintended consequences of the Eighteenth Amendment, the passage of the Twenty-first Amendment, and connections to the War on Drugs. National Prohibition was viewed by millions of Americans as the solution to the nation’s poverty, crime, violence, and other ills and they eagerly embraced it. After its adoption in 1920, Evangelist Billy Sunday staged a mock funeral for alcoholic beverages and then extolled on the benefits of prohibition. “The rein of tears is over,” he asserted. “The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs.” With the ban on alcohol which was seen as the cause of most, if not all, crime, some communities sold their jails.

It soon became clear that Prohibition not only failed in its promises but actually created other serious and disturbing social problems leading to an increasing disillusionment by millions of Americans. Journalist H. L. Mencken wrote in 1925 that “Five years of prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.”

It was nine prominent New York lawyers, organized as the Voluntary Committee of Lawyers and chaired by eminent Park Avenue lawyer and Harvard Law School graduate Joseph H. Choate, Jr., who helped bring about Prohibition’s repeal. In 1927, the lawyers formed the VCL declaring as their purpose “to preserve the spirit of the Constitution of the United States [by] bringing about the repeal of the so-called Volstead Act and the Eighteenth Amendment.” With this modest platform they undertook first to draft and promote repeal resolutions for local and state bar associations. Their success culminated with the American Bar Association calling for repeal in 1928, after scores of city and state bar associations in all regions of the country had spoken unambiguously, in words and ideas cultivated, shaped, and sharpened by the VCL. For more on this remarkable story, see The VCL: Architects of Repeal by Richard M. Evans.