This conversation with Brooklyn Law School Professor David Reiss focuses on his recent article Gorsuch, CFPB and Future of the Administrative State. Prof. Reiss talks about the impact that U.S. Supreme Court nominee Judge Neil Gorsuch would have on the future of administrative law and, in particular, on federal consumer protection enforcement if he is confirmed. Prof. Reiss reviews the case PHH v. Consumer Financial Protection Bureau which the United States Court of Appeals, District of Columbia Circuit decided last year. It is likely the case will be appealed to the Supreme Court. If so, Justice Gorsuch may vote to curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, Prof. Reiss believes that, given previous rulings by Judge Gorsuch in cases dealing with administrative law, a Justice Gorsuch will be a skeptic of agency action and will support greater judicial review of agency actions.
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.
On June 13, 1966 the United States Supreme Court handed down the decision in Ernesto Miranda v. the State of Arizona, 384 U.S. 436 (1966). This case was actually consolidated with three others: Westover v. United States, Vignera v. State of New York and California v. Stewart, however, this case has become known to be simply Miranda v. Arizona.
Ernesto Miranda was arrested in Phoenix, Arizona in March 1963 based on circumstantial evidence linking him to the kidnapping and rape of an eighteen year old woman named Mary Adams ten days prior to his actual arrest. At the police station, after hours of interrogation, he signed a confession. During the interrogation Miranda was not told of his right to counsel. During the trial the prosecutor entered his confession as evidence; Miranda’s attorney objected, stating that the confession was not truly voluntary and should be excluded. This objection was overruled and Miranda was convicted of rape and kidnapping at trial. The Arizona Supreme Court affirmed the trial court’s decision.
Miranda’s case and three other similar cases were appealed to the United States Supreme Court, with the Court handing down their decision fifty years ago this month. The Miranda case has become famous because it establishes a defendant’s right to counsel and of the right against self-incrimination. Judge Earl Warren wrote for the majority, in the 5-4 decision, that these rights were guaranteed by the Fifth and Sixth Amendments to the Constitution.
After the Supreme Court’s decision, the state of Arizona retried Miranda without the confession, but he was convicted on the strength of a witness and sentenced to 20 to 30 years in prison. He served eleven years and died in 1976, after being stabbed in a bar fight.
“Miranda Rights” have come to be known by the public through television shows and movies as the “right to remain silent” and “anything said can and will be used against in a court of law.” Hundreds of law review articles have been written about this case and a defendant’s “Miranda Rights.” The library also has a number of books about the Miranda case, including the titles listed below:
Miranda: the Story of America’s Right to Remain Silent by Gary Stuart (2004).
The Miranda Debate: Law, Justice, and Policing by Richard Leo (1998).
The Miranda Ruling: Its, Past, Present, and Future by Lawrence Wrightsman (2010).
Miranda Revisited by Frank Schmalleger (2001).
Developed by Prof. Jerry Goldman, Oyez has had its home at the IIT Chicago-Kent College of Law for over 20 years. It is a complete and authoritative source for all of the Supreme Court’s audio since the installation of a recording system in October 1955. Oyez also provides detailed information on every justice throughout history and offers a panoramic tour of the Supreme Court building, including the chambers of several justices.
Prof. Goldman is retiring this month and a new arrangement for the Project has been formed with Cornell University’s Legal Information Institute and Justia. All of the information of the Oyez Project will not be available at the Legal Information Institute website.
Today marks 125 years since the birth of Earl Warren, the 14th Chief Justice of the US Supreme Court, in Los Angeles, California. Warren’s tenure on the Court was from 1953 when President Dwight D. Eisenhower nominated him until his retirement in 1969. Earl Warren had enormous impact on the political and legal landscape of twentieth century America. In his long public service, Warren pursued a Progressive vision of ethical and effective government that brought moral integrity to the nation’s public policies, especially in the fields of racial relations, criminal justice, and freedom of marital association. Warren’s path-breaking approach to legal writing and his management of the responsibilities of the Office of Chief Justice encouraged public understanding of and support for the work of the Supreme Court.
A graduate of the University of California at Berkeley, he was elected district attorney of Alameda County in 1925 and continued to be reelected through 1938, when he was elected Attorney General of California. In 1942, Warren ran successfully for Governor of California as a Republican and was reelected in 1946 and 1950. He ran for Vice President of the United States in 1948 on the Republican ticket with Thomas Dewey, who lost to Harry Truman, the Democratic incumbent.
The Warren Court issued a host of notable decisions including decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that states are bound by the decisions of the Supreme Court and cannot ignore them (Cooper v. Aaron); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); the scope of the doctrine of incorporation in state criminal matters (Mapp v. Ohio, Miranda v. Arizona) was dramatically increased; reading an equal protection clause into the Fifth Amendment (Bolling v. Sharpe); holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Reynolds v. Sims); and holding that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses (Gideon v. Wainwright).
Warren was Chair of the Warren Commission on the Assassination of President Kennedy. Serious lapses in judgment and uncritical deference to authority regarding national security issues in the report have clouded his legacy. The Brooklyn Law School Library has in its collection Earl Warren and the Struggle for Justice by Paul Moke (Call # KF8745.W3 M65 2015), a highly readable biography that offers an updated and balanced appraisal of Warren’s leading social justice decisions and a liberal critique of his failings that provides new insights into Warren, the man, the jurist, and the leader.
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.
A Wall Street Journal article reports that the U.S. Supreme Court has granted a writ of certiorari to review the ruling by Judge Jed Rakoff in the case of Salman v. US, 792 F.3d 1087 (9th Cir. 2015). Judge Rakoff, who usually sits on bench of the Southern District of New York, served as a visiting judge temporarily assigned to the Ninth Circuit and wrote the opinion in Salman, which disagreed with last year’s Second Circuit ruling in US v. Newman, 773 F. 3d 438 (2d Cir. 2014). The Newman decision overturned the insider trading convictions of former hedge-fund traders articulating a narrower definition of the crime. The issue in Salman is what constitutes insider trading in a case involving an Illinois businessman’s appeal of his conviction for making $1.2 million trading on tips about mergers from his brother-in-law, a Citigroup banker. With the grant of certiorari, the Supreme Court may now decide a key question in insider trading cases, namely what benefits corporate insiders need to receive for any information they disclose to traders to be illegal. The Justice Department warned that overturning the convictions in Newman prosecution could hinder the government’s campaign to curb insider trading on Wall Street. The Supreme Court denied certiorari in Newman.
Salman was convicted of 2013 of making investments based on confidential information he received from a family member who worked in the health care investment banking group at Citigroup Global Markets in NY. Co-defendants pleaded guilty in 2011 and were sentenced to probation. Salman was sentenced to 36 months in federal prison and ordered to pay more than $738,000 in restitution. His appeal cites the Second Circuit decision in Newman where the court ruled that prosecutors must prove that a defendant had direct knowledge of the leaker, realize that a breach of fiduciary duty occurred and know that the leaker received a personal benefit in exchange for the information. In Newman, the Second Circuit held that the evidence was insufficient to establish that the tippers received a personal benefit in exchange for the tip. The court also explained that there needed to be “proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” In other words, the relationship should suggest a quid pro quo from the recipient.
Brooklyn Law School Library has an extensive collection of material on insider trading, the latest of which is Insider Trading Law and Policy by Stephen Bainbridge (Call # KF1073.I5 B35 2014). The textbook is for use in law school classes on insider trading, securities regulation, or business associations. It offers a clear and direct exposition of the law and policy concerns raised by this important and high-profile area of the law. The author provides sufficient detail for a complete understanding of the subject without getting bogged down in minutiae. A second item in the BLS Library collection is worth reading: Circle of Friends: The Massive Federal Crackdown on Insider Trading—and Why the Markets Always Work Against the Little Guy by Charles Gasparino (Call # HG4928.5 .G38 2013). It is a riveting work of narrative nonfiction, as engrossing and explosive as fictional thrillers of the finest magnitude and should serve as a wake-up call to the investing public.
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.
- John E. Floyd, RICO State by State: Guide to Litigation Under the State Racketeering Statutes (2d ed. 2011).
- Frank J. Marine, Criminal RICO: 18 U.S.C. §§ 1961-68: A Manual for Federal Prosecutors (5th ed. 2009).
- Paul A. Batista, Civil RICO Practice Manual (2008 & Supp. 2013).
- Jed S. Rakoff et al., RICO: Civil and Criminal Law and Strategy (1989 & Supp. 2015).
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.
On 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.
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.