Category Archives: Uncategorized

The Patient Protection and the Affordable Care Act: The Debate Rages On

With the debate over the repeal and replacement of the Affordable Care Act raging, you might be interested in researching the act.  The library has 36 titles that are tagged with the subject, United States and the Patient Protection and Affordable Care Act.  Listed below are a few of those titles.

Purva H. Rawal, The Affordable Care Act: Examining the Facts (2016).

This is the first reference book to provide a detailed assessment of the Affordable Care Act, explaining the realities and myths surrounding one of the most divisive political struggles in recent U.S. history.  This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Steven Brill, America’s bitter pill: Money, Politics, Backroom Deals, and the Fight to Fix our Broken Healthcare System (2015).

This book details how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry. It’s a fly-on-the-wall account of the titanic fight to pass a 961-page law aimed at fixing America’s largest, most dysfunctional industry.

Josh Blackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (2016).

Six years after its enactment, this book provides the definitive account of the battle to stop Obamacare from being ‘woven into the fabric of America’. Unraveled is essential reading to understand the future of the Affordable Care Act in America’s gridlocked government in 2016, and beyond. This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (2013).

This inside story of the legal challenge to Obamacare from a conservative constitutional lawyer involved in the movement is a mixture of legal, political, and media intrigue capped by a truly consequential Supreme Court decision.

Emoluments Clause: Constitution’s Least Litigated

EmolumentsArticle I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision   Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.

Update: World Share Interlibrary Loan Prime

The Library is implementing a new system to manage interlibrary loans called World Share Interlibrary Loan Prime.  The system will streamline interlibrary loan service. Interlibrary loan (ILL) is the service that gives you access to the resources of other libraries. You can use ILL to borrow books, and to obtain PDFs of articles and book chapters that the library does not own. The new system contains functionality that will speed the fulfillment of interlibrary loan requests.  Patrons will use their BLS username and password to sign on and make requests. The system will go live on January 23, 2017.

Current ILLiad Users:

There is a new user interface for creating and managing requests.  You will notice a few difference from ILLiad, the previous system.  The new service displays all of your requests on a single page, links to articles, and details about the status of your request and item due dates.  You can also submit new requests from this interface.  The emails and notifications that you receive will look a little different as well.  For those who have outstanding requests in ILLiad, those requests will transfer over to the new system.

We hope that these changes enhance your library experience and streamline how you manage your requests! If you have any questions, please don’t hesitate to contact the Interlibrary Loan Team at ill@brooklaw.edu.

Library Hours – Winter Break and Beyond

The Library will be CLOSED from Saturday, December 24th, through Monday, January 2nd.

Winter Session begins on Monday, January 2nd and ends on Friday, January 13th.

These are the Library Hours for early January:

Tuesday, January 3rd – Saturday, January 7th :     9:00 am – 10:00 pm

Sunday, January 8th –                                              10:00 am – 10:00 pm

Monday, January 9th – Saturday, January 14th –   9:00 am – 10:00 pm

Sunday January 15th –                                             10:00 am – 10:00 pm

Monday, January 16th                                               9:00 am – 10:00 pm  (Martin Luther King Day)

Everyone at the BLS Library wishes you all Happy Holidays!

 

 

 

 

Virtual Reference: We are there, even when we are not

Just because you don’t see a librarian sitting at the reference desk, does not mean we are not there to help. The library has many virtual reference tools to help you with your research. For example, you can always email the library at askthelibrary@brooklaw.edu. You can also look through our extensive FAQ list to see if your question has previously been answered. You can find our FAQs at askthelibrary.brooklaw.edu. You can also browse through our research guides to see if we have created one to address the issue you are researching. You can access a list of the library’s research guides at guides.brooklaw.edu.

If we are not sitting at the reference desk, but you see the chachatwithalibrariant symbol on BLSConnect or the Library’s webpage, click on it to contact a reference librarian for help. You can also text us at 718-734-2432. And of course, often times, we are only a phone call away at 718-780-7567. If a librarian is not available to help at that time, one will get back to you as soon as she is available.  Reference librarians generally answer reference questions, Monday – Thursday from 9 am-8 pm and on Saturday from 12 pm – 5 pm.

Thanksgiving Library Hours

The BLS Library 2016 Thanksgiving Schedule

Wednesday 11/23                  9:00 am – 10:00 pm

Thursday  Thanksgiving        CLOSED

Friday 11/25                            9:00 am – 10:00 pm

Saturday 11/26                       9:00 am – 10:00 pm

Sunday 11/27                         10:00 am – Midnight

happy-thanksgiving-typography

Election 2016 – Polls, Predictions, and Analysis . . . Oh My!

Interested in taking a deeper dive into the polling and analysis being done right now on the 2016 Presidential Election?  Check out these websites:

http://fivethirtyeight.com/

538

http://predictwise.com/

predictwise

http://www.realclearpolitics.com/epolls/2016/president/us/general_election_trump_vs_clinton-5491.html

realclear

http://www.electiontracker.us/

bigdata

 

http://elections.huffingtonpost.com/pollster

huff

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.

Is the DMCA Unconstitutionally Overbroad?

takedownSince passage in 1998 of the Digital Millennium Copyright Act, Pub. L. 105-304, media companies like Sony, Disney, Comcast and others have issued DMCA take down notices to remove online content from sites hosted by service providers, primarily YouTube. The DMCA was enacted to help both content creators and hosts by providing a safe harbor provision for hosts who rely on user-generated content and who do not provide content themselves. Since it is impossible for YouTube to police all user-uploaded content themselves, it would be unfair to make YouTube liable for infringing material on their site. Before passage of the DMCA, copyright infringement on a website might result in the website being liable, which could lead to putting platforms like YouTube out of business. The DMCA was codified in Title 17 of the US Code. The safe harbor in 17 USC 512  protects the rights of copyright holders while providing protection for content service providers. If a copyright holder alleges infringement in a video on the site like YouTube, it has to take down that video immediately. There is no appeal process, as YouTube is not in a position to look at the validity of each take down notice because of time constraints. If this process is followed, the law gives safe harbor protection for the content service provider.

With aggressive policing of potential copyright infringement, media companies use automated software that ignores fair use rights often misidentifying music and videos as copyrighted. Another controversial section of the DMCA aims to protect against copyright infringers who employ tools that enable them to circumvent access controls that protect a copyright holder, 17 USC 1201 prohibits the use of tool to “circumvent a technological measure” like those that  descramble a scrambled work, decrypt an encrypted work, or otherwise impair a technological measure, without the authority of the copyright owner.

Provisions of the DMCA dealing with both take down notices and the “anti-circumvention” rule now face legal challenges that may lead to review by the US Supreme Court. The take down provisions were the subject of a  federal appeals court decision in Lenz v. Universal Music Corp., 801 F. 3d 1126 (9th Cir., 2015). Plaintiff posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”. Universal Music Corporation sent YouTube a DMCA take down notice claiming that Lenz’s video violated their copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The district court in Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal., 2008) rejected a motion to dismiss the claim, and held that Universal must consider fair use when filing a take down notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder. The 9th Circuit affirmed, holding that while fair use arises procedurally as an affirmative defense, copyright holders have a “duty to consider—in good faith and prior to sending a take down notification—whether allegedly infringing material constitutes fair use”. This week, the Electronic Frontier Foundation filed a petition with the Supreme Court, arguing that this standard rendered fair use protections against the DMCA “all but meaningless.”

As for the 17 USC 1201 prohibition on anti-circumvention tools, the EFF filed a complaint in the US District Court for the District of Columbia challenging its constitutionality claiming the section restricts people’s ability to access, use, and even speak out about copyrighted materials. The “Digital Rights Management” provision of the law bans activities that weaken copyright access-control systems, including re-configuring software-enabled devices. This imposes a legal cloud over the rights to tinker with or repair devices, to convert or remix videos, or conduct independent security research to reveal dangerous security flaws in computers. If the complaint succeeds, one of the most controversial technology laws will be struck down. Other countries that have been pressured by the US trade representative to adopt this rule will decide whether they will still enforce it, even after the US has given up on it.

copyrightBrooklyn Law School Library has a large collection of material on copyright including the 3d edition of Copyright Law for Librarians and Educators by Kenneth D. Crews (Call No. KF2995 .C74 2012) with 18 discrete areas of copyright, including specialized and controversial music and sound recording issues. The easy-to-use guide has tools that information professionals need to take control of their rights and responsibilities as copyright owners and users.