Category Archives: New York

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 bells Touro 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.

The 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.”

To 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.

The 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.

NYC Landmarks Law at 50

This year marks the fiftieth anniversary of the Landmarks Law of New York City, which was enacted on April 19, 1965 when Mayor Robert F. Wagner signed it beginning an era of historic preservation. Since then, almost 1,400 individual landmarks, 115 interior landmarks, 10 scenic landmarks, 109 historic districts, and 10 historic district extensions located throughout all five boroughs have been designated. The Landmarks Law established the Landmarks Preservation Commission, the mayoral agency responsible for identifying, designating, preserving, and regulating New York City’s architecturally, historically, and culturally significant buildings and sites. The Landmarks Law is found in Chapter 74 of the New York City Charter.

On Wednesday, October 21 at the U.S. Bankruptcy Court on Cadman Plaza in Brooklyn, a panel of land use experts in a session called Preserving our Architectural History: The Business Case for Landmarks Preservation will discuss the economic impact of historic preservation in New York City. Another event marking the anniversary of the Landmarks Law is scheduled on Monday, October 26, 2015 at the New York City Bar Association. The New York City Landmarks Preservation Commission and the Harvard University Graduate School of Design will host History in the Making: The New York City Landmarks Law at 50, a full-day conference at the Bar Association offices at 42 West 44th Street, New York, NY.

On the subject of historic sites, the Brooklyn Law School Library has in its collection Landmarks Preservation and the Property Tax: Assessing Landmark Buildings for Real for Real Taxation Purposes by David Lisotkin (Call #KF6535 .L58 2012). The book examines the growing importance of historic preservation. Communities across the country have established designation programs whereby individual buildings or districts of historical-architectural significance are accorded landmark status. It focuses on New York City in considering the effects of historic status on property value and in evaluating assessment practices. Its findings are transferrable to other communities because the base conditions are similar. Many other cities have designation programs modeled on New York City’s. In addition, New York’s property-tax system and administrative processes resemble those found in communities across the nation. To enhance the transferability of this study’s findings, Listokin refers to the national experience and literature, typically on a side-by-side basis with the New York City counterpart.

NYC Charter Revision Commission Materials Available on BrooklynWorks

Recently, 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 (refdesk@brooklaw.edu) 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.

VARA and a Whitewashed Graffiti Mecca

5Pointz An October 2013 blog post on the BLS Library Blog, Visual Artist Rights Act in Federal Court, discussed a federal law suit brought by a group of plaintiff artists, under the Visual Artist Rights Act of 1990, against a defendant real estate developer in the US District Court for the Eastern District of New York. Now nine of the artists, whose spray-paint artwork known as 5Pointz in Long Island City was whitewashed to make way for a residential development, have filed a new federal lawsuit seeking punitive damages. Over 18 months ago, the property owner used “the cover of night” to mutilate what had for years transformed Long Island City “from a virtual wasteland into an attractive place for residential development,” according to the complaint.

The artist-plaintiffs, led by Maria Castillo of Sunnyside, Queens, say they had free reign of 5Poinz through a 1993 deal with property owner Gerald Wolkoff and his company G&M Realty. With only three conditions that there be no politics, no religion, no sex, the artists worked for free retaining the copyrights of their work. One of the artists, Jonathan Cohen, the curator of 5Pointz, was given an office in 2002 and leave to commission works from others. After sale of the buildings to make way for a housing development, Cohen, facing an eviction proceeding, fired back with a federal complaint in October 2013. He reached a settlement with the defendant requiring him to vacate by Nov. 30. The court ruled on the artists’ motion for an injunction on November 20, but the owners obliterated the art the night before.

The new complaint contends that “the whitewashing was entirely gratuitous and unnecessary” and that the defendants “were far from ready to demolish the buildings in question.” It calls the whitewashing “the replacement of something beautiful with something profoundly ugly”. The plaintiff artists, from NYC and other parts of New York, as well as London, Germany, North Carolina and South Carolina, also seek compensation for the unlawful destruction of their work in violation of the Visual Artists Rights Act, 17 U.S.C. §106A et seq. (“VARA”). In 1990, Congress passed The Visual Artists Rights Act (VARA) to broaden copyright protections to include artists, recognizing the “moral rights” of artists in a way that the United States had not previously done.

Before the whitewashing of 5Pointz, artists came from around the world to be featured there, and the “Graffiti Mecca” was the site of several photo shoots, films, music videos and television shows. With the Museum of Modern Art’s P.S. 1 site nearby, visitors were “inexorably drawn” to check out the more than 350 works at 5Pointz. Subway passengers on the 7 train also saw the artwork on their daily commute.

Being in the Know

While working at your summer job or internship, it is important to stay up to date on legal developments and current events. One way to do this is to monitor legal news by using an RSS feed. If you have never set up an RSS feed, watch this easy to follow video demonstrating how to do so. https://www.youtube.com/watch?v=0klgLsSxGsU (Note: this video refers to Google Reader, which is no longer in service.)

As the video describes, you need to complete two steps to create an RSS feed. First, you need to sign on to a reader, which is a website where you view the latest news from your favorite sources. The second step is to set up a connection between your reader and your favorite legal news providers. You do this by subscribing to legal news sites or legal blogs.

Listed below are a few free RSS readers, and a few popular and reliable legal news sources.

RSS Readers

Feedly (Web/iOS/Andriod): Great looking design and easy to use interface.

Reedah (Web): Simple minimalist design. Good feed for beginners.

Comma Feed (Web): Designed to be superfast

FeedBooster (Web): Site is ad-free and can sort feeds in multiple ways

Legal News Providers

Law360: Very current coverage of law. Browse news by practice area or jurisdiction. Need to implement proxy instructions for off-campus access.

New York Law Journal: Covers New York legal developments. It is the go to source for attorneys practicing in New York. Browse news by practice area. Also publishes decisions from New York State and Federal Courts. Need username and password to access some articles. Contact refdesk@brooklaw.edu for credentials.

Jurist Law: Free source supported by the University of Pittsburgh, School of Law. Very current, real time coverage or U.S. and World Legal News.

BNA Law Reports: Available via Bloomberg Law. BNA publishes law reports on over a 100 different legal topics. To access BNA Law Reports, sign on to Bloomberg Law and select BNA Law Reports from the “Getting Started” menu on the home page.

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).