Category Archives: Uncategorized

New tool to develop paper/note topics: Law Ratchet

Law Ratchet is a free, searchable aggregator of legal news and blog posts.  At present, there is both a Law Ratchet website and an iPad app (displays well and is easy to edit).  The FAQs indicate that the developers are working on  adding offline access and expanding to other platforms (like Android phones).

You can customize Law Ratchet’s 40+ legal news categories through its EDIT feature.  Categories include: trending topics, top 25 blogs, law school, and the legal industry.   There are also subject categories such as international, policy and politics,  corporate law, commercial law, immigration law, and law and technology.  In some cases, Law Ratchet is reproducing blog posts in full.  In other cases, it provides summaries of posts and directs readers to, for example, specific legal blog sites.

I think that this will be a useful source for note and paper topic development.

 

 

Summer Reading: Something New or Something Old?

Summer is often a time for law students and others to catch up on their non-school or non-work related reading.  If you are looking for some summer reading, while maybe not actually lighter fare, there are three locations in the library that might offer some interesting selections.

The library orders, receives and processes hundreds of new books each year.  A new book list is posted on SARA, our online catalog, every two weeks.  A few of the books from each list are displayed on the new book shelf on the first floor circulation desk.  Two new books shelved there which might be of particular interest to law students:

Another source for fining out about new books in the library is the bulletin board in the entrance to the cellar displaying new book jackets.  A couple of the book jackets currently on display deal with the Supreme Court:

If you are a history buff, you might want to read some of the titles that are housed in our rare book collection. While the rare books do not circulate out of the library, they may be borrowed from the rare book cabinets located on the second floor, second floor mezzanine and the third floor to read in the library.   A few rare books of possible interest:

These three books and many others in the rare book collection are also available electronically through our Making of Modern Law Collection or in HeinOnline.  Enjoy your summer!

112th BLS Commencement at Lincoln Center

Brooklyn Law School held its 112th Commencement Ceremony on Friday, June 7 at Lincoln Center’s Avery Fisher Hall. With more than 450 law students receiving either a Juris Doctor or a LL.M degree, the Class of 2013 was one of the school’s largest graduating classes before enrollment began declining after the worst economic downturn since the Great Depression. Joseph Binder, Class Valedictorian and one of five students graduating summa cum laude, made reference to ongoing doubt about the future of the profession in his comments but also noted that his fellow students, from all different backgrounds, shared a common commitment to growth, change, and community and could use the values and skills that they developed and apply them to whatever challenges lie ahead. Other summa cum laude graduates were Joshua Gerber, Kate Olivieri, David Passes, and Noam Weiss. The complete list of students graduating with honors is accessible here. A list of Commencement Prizes and Awards for the Class of 2013 is available here.


The 2013 Commencement Speaker, Kenneth Feinberg, the lead attorney who oversaw settlement payouts after disasters including the attacks of 9/11, the Virginia Tech shootings, and the Aurora, Colorado movie theater shootings, reminded the graduates that they are all members of a noble profession and that the “public interest” lies at the heart of it. He cited the Law School’s nationally acclaimed Sparer Public Interest Law Fellowship Program as an example of law students working in the public interest. Advising the graduates not to be afraid to avoid the safe path, the easy road, the comfortable option, Feinberg urged them to take chances, reinforced by the knowledge that they are entitled and expected to do so because of the diplomas that they earned. He said “I use my law degree every day to strike out in new directions, to pursue the unfamiliar road. Today, your law degree affords you the same opportunity, to ignore fear of failure, to be bold, to be pioneers and innovators in using the law to better our nation and the world.”

In closing, Feinberg quoted Supreme Court Justice Oliver Wendell Holmes’ remarks in 1886 to undergraduate law students at Harvard:

To those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say – and I say no longer with any doubt – that a man or woman may live greatly in the law as well as elsewhere; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. 

The full text of Holmes lecture is at this linkavailable through the BLS Library subscription to HeinOnline.

Overcriminalization

A recent New York Law Journal article, Overcriminalization of Non-Violent Conduct: Time for Real Reform by attorneys Robert J. Anello and Richard F. Albert, examines the proliferation of federal criminal laws and the resulting increase in the federal prison population, approximately 40% above capacity, costing taxpayers almost $7 billion a year, almost 30% of the Justice Department’s budget. The article cites Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which is available in the SARA, the Brooklyn Law School catalog. With Congress adding an average of 500 new crimes to the books in each of the past three decades and the addition of  tens of thousands of regulations with criminal penalties, many without traditional mens rea or criminal intent, critics contend that these newly created crimes violate fundamental principles of fair notice, and subjects individuals to criminal punishment for conduct that they do not know is illegal.

The article points to a number of proposed remedies including legislative reform and judicial reform. See the Justice Safety Valve Act of 2013 and United States v. Goyal, 629 F.3d 912 (9th Cir. 2010) where the U.S. Court of Appeals for the Ninth Circuit reversed a corporate CFO’s fraud conviction finding that no reasonable jury could have found the defendant guilty beyond a reasonable doubt.

For more on the subject, see the BLS Library copy of Overcriminalization: The Limits of the Criminal Law (Call #KF9223 .H87 2008) by Douglas Husak who argues that the U.S suffers from too much criminal law and too much punishment. The author notes that most Anglo-American legal philosophers have neglected the topic and argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself, even though these resources have not been used explicitly for this purpose.

Eminent Domain, Just and Unjust Compensation

Brooklyn Law School Assistant Professor of Law Brian Lee has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain on SSRN. The full text of the article appears at 113 Columbia Law Review 593 (2013). The abstract reads:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners’ personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Authorship Attribution

Brooklyn Law School Professor Lawrence Solan has posted Intuition versus Algorithm: The Case of Forensic Authorship Attribution on SSRN. The article, which will appear in an upcoming edition of the Brooklyn Journal of Law and Policy, originated in the Authorship Attribution Workshop held last October at Brooklyn Law School. The program for the workshop stated “It is not unusual for a legal case to depend on who wrote a particular document. The question has arisen in many high-profile cases, such as identifying the author of the Unabomber Manifesto, and the ransom notes in the JonBenét Ramsey murder case and the Lindburgh baby kidnapping and murder case. It arises in many less-celebrated criminal and civil cases on a regular basis.”

The abstract for the article, the full text of which is not yet posted, reads:

This article addresses a nagging issue in the field of scientific evidence: What should the legal system do when experts developing a statistical approach to forensic identification are making good progress, but are not provably more accurate than experts who make judgments, often convincing judgments, based upon the their analysis of the specific facts of each case? That is the state of affairs in the field of authorship attribution: Computer scientists and computational linguists develop and test their models while a group of forensic linguists continues to testify in cases without mathematical checks on their conclusions. The legal system rightly prefers algorithmic expertise over intuitive expertise, but when it is not clear that the algorithms do a better job, the question becomes more difficult. The article discusses the psychological literature on the question of algorithm versus intuition and applies it to authorship attribution. It concludes that the insights of the intuitive experts, sometimes called practitioners of forensic stylistics, may have a great deal to contribute to the models created by the computational experts; that practitioners of stylistic comparison have an obligation to conduct far more research into the accuracy of their methods, including, in the short-run, proficiency testing; and that a healthy combination of cooperation and competition is gradually leading to improvements in the field and convergence around those methods that prove successful.

Class Action Fairness Act

In Abraham v. American Home Mortgage Servicing, Inc., Brooklyn Federal Judge William F. Kuntz II of the Eastern District of New York ruled against several hundred current and former homeowners rejecting their mass action attempt, finding that they were joined improperly. The defendants were several dozen mortgage originators and servicers including MERSCORP Holdings Inc. Plaintiffs alleged that the defendants induced them to enter into mortgages based on inflated appraisals; purposefully avoided local recordation statutes, thereby clouding the plaintiffs’ titles; transferred, bundled, packaged and sold their mortgages to investors simultaneously betting against those mortgages; and failed to use Troubled Asset Relief Program, or TARP, funds to help the plaintiffs, as required under law. The suit originated in New York Supreme Court, Kings County, in May 2012 but one of the defendants had the case removed to the federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(A)

Judge Kuntz rejected the mass action attempt by the plaintiffs, finding that they were joined improperly. A “mass action” is defined as any civil action in which monetary relief claims of 100 or more persons are proposed to be tried together on the grounds that the plaintiffs’ claims involve common question of law or fact. “According to the allegations in the complaint, Plaintiffs engaged in separate loan transactions with different lenders in different offices in different states over a nine-year period. It is well established that separate loan transactions by different lenders do not constitute a single transaction or occurrence and claims by plaintiffs who engaged in those separate transactions generally cannot be joined in a single action,” Kuntz wrote. “Indeed, even claims by plaintiffs who engaged in separate loan transactions by the same lender cannot be joined in a single action.

Judge Kuntz also ruled that the plaintiffs failed to plead “sufficient factual matter” to state a claim to relief that is “plausible on its face.” “Plaintiffs appear to argue that their claims arise out of a common series of transactions because ‘Defendants were involved in a common scheme and plan,’” Kuntz wrote. “Plaintiffs have not provided any factual allegations supporting these contentions, such as evidence that Plaintiffs’ individual mortgages were based on inflated appraisals or specific omissions by particular employees responsible for issuing Plaintiffs’ mortgages.

See Brooklyn Law School Library’s copy of A Practitioner’s Guide to Class Actions by Marcy Greer ( Call #KF8896.P735.2010) for more on the subject of class actions. This comprehensive guide provides practitioners with an understanding of the intracacies of the class action lawsuit.

Plea Bargaining and Ethics

LLRX, the “go-to” website for researchers seeking to leverage the expanding expertise and knowledge of legal resources, has published in its May 2013 edition an article titled Negotiating Justice: The New Constitutional Spectrum of Plea Bargaining by Ken Strutin. The article focuses on the impact of the Supreme Court’s decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012) and Laflerv. Cooper, 132 S.Ct. 1376 (2012), and the upcoming appeal in Burt v. Titlow. The cases have divided practitioners and scholars into two camps: (1) those who consider the rulings to be a new statement in the law of plea bargaining and right to effective assistance of counsel; and (2) those who believe they are only a restatement of established principles. The cases have generated interest in the regulation of plea bargaining, the ethics and effectiveness of defense counsel as negotiator, the oversight of prosecutors regarding charging decisions, sentence recommendations and pre-trial discovery, and the scope of federal habeas corpus review and remedies.


Users of the Brooklyn Law School Library who want to research the subject of plea bargaining have access to The Ethics of Plea Bargaining by Richard L. Lippke (Call # K5458 .L57 2011). The book offers a full-length philosophical analysis of the ethics of plea bargaining and develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States. It offers an ethical argument for restrained forms of plea bargaining and provides a comparison between the different plea bargaining regimes that exist within the US, where it is well-established, England and Wales, where the practice is coming under considerable critique, and the European Union, where debate continues on whether it coheres with inquisitorial legal regimes. Addressing concerns about rewards for admitting guilt, penalties for exercising the right to trial, and the deliberate over-charging by prosecutors and charge bargaining, the author argues that the negotiation of charges and sentences should remain the exception, not the rule.

Bankruptcy and Student Loans

Student loan obligations are presumptively non-dischargeable in bankruptcy absent a showing of “undue hardship.” 11 U.S.C. § 523(a)(8). A recent decision by the Ninth Circuit Court of Appeals may offer financially stressed student loan debtors a way out of their student loans. In Hedland v. Educational Resources Institute, Inc., the court ruled that a bankrupt law school graduate who accumulated $85,000 in student debt (with monthly payments of more than $800) was not obligated to repay the loans because he could not find a job with enought income to make the payments. After filing bankruptcy, the debtor commenced an adversarial proceeding seeking a partial discharge of his student loans. At trial, the Bankruptcy Court determined that the debtor satisfied the three-prong test for “undue hardship” and granted a partial discharge of all but a portion of his student loans. The District Court reversed and reinstated the entirety of the student loans. The Ninth Circuit held that the Bankruptcy Court’s findings under §523(a)(8) were not clearly erroneous and reversed the District Court’s order.

The Court of Appeals used the three-pronged test laid out in Brunner v. New York State Higher Educ. Services, 831 F. 2d 395 (2d Cir. 1987):  (i) the debtor could not have maintained a minimal standard of living, if required to repay the full loans, (ii) circumstances indicated that the debtor’s inability to repay his loans would persist into the future, and (iii) the debtor made a good faith effort to repay his loans. The Court found that the Bankruptcy Court had not made any errors, had examined the evidence, had used the Brunner test, and that the reversal by the District Court was wrong. The Court then remanded the case back to the District Court to reinstate the discharge which the Bankruptcy Court ordered.

For more on the topic, see the Brooklyn Law School Library copy of Discharging Student Loans in Bankruptcy by David J. Light (Call # KF1530.D4 L54 2009). Contents include Legislative history of student loan dischargeability; Discharging student loans under Chapter 7; Discharging student loans under Chapter 13.

Great Irish Famine: Crime Against Humanity?

New York City’s Irish Hunger Memorial offers an informative look at the Irish Hunger of 1845-50, perhaps the worst social disaster of 19th Century Europe. Located near the World Financial Center in lower Manhattan, the half-acre site consists of a rural Irish landscape with an abandoned stone cottage, stone walls, fallow potato fields and the flora on the north Connacht wetlands. It is a metaphor for the Great Irish Famine and a reminder that hunger today is often the result of lack of access to land. Artist Brian Tolle designed the 96′ x 170′ Memorial, which contains stones from each of Ireland’s 32 counties. Along the base are bands of texts separated by layers of imported Kilkenny limestone. The text, which combines the history of the Great Famine with current reports on world hunger, is cast as shadow onto illuminated frosted glass panels.

A recent trip to Ireland, especially the counties in the west (County Galway, County Clare, and County Kerry), districts designated the Gaeltacht where the Irish government recognizes Irish as the predominant language spoken at home, made clear the extent of the Irish Hunger. An historic site on the Dingle Peninsula had the ruins of a famine house that gave an historical overview of the Land War in Ireland when English landowners evicted millions of Irish who could not pay rent in the wake of the great famine. The site describes the ruthless tactics that the British used to evict Irish peasants. Ironically, some evicted Irishmen immigrated to America, joined the US Army, and used the same methods to displace Native Americans during the Western expansion, not seeing any connection between the plight of the Irish and that of the Indians.

The Great Famine had its roots in both the dependence of Irish peasants solely on a potato diet as well as the adverse relief policies of the British Government. Irish patriot John Mitchell summed up the tragedy saying “God created the potato blight but Britain created the famine.” The fungus that ruined the potato crop actually came from America by ship; it infected much of Western Europe, but Ireland was affected the most. The earlier 17th Century purges in Ireland under the rule of Oliver Cromwell and the later Penal Laws insured that the Irish peasant could own no land, paid exorbitant rents and subsisted exclusively on potatoes. Interestingly, food was exported from Ireland during the Great Famine, in the form of livestock, grains, fruits and vegetables. The term Famine is arguably a misnomer. An estimated 1 million died of starvation-related conditions in one of the most catastophic food crises in history. For many, migration was an escape from death. Approximately 20% of emigrants died at sea, in coffin ships, and in quarantine stations. The Irish exodus to America was the first large wave of European immigration

The Brooklyn Law School Library’s electronic collection has material related to this period. See the Making of Modern Law’s The Irish Land Acts, 1903 to 1909: Together with the Rules and Forms Issued Thereunder, Tables of Purchase Annuities, and a Form of Final Schedule of Incumbrances: Being a Supplement to Lord Justice Cherry’s Irish Land Law and Land Purchase Acts, 1860 To 1901. This topic from so long ago has gained some currency with the convening of the Irish Famine Tribunal in late April at Fordham University Law School. Organizers of the mock tribunal set it up as an experiment for lawyers and experts to “examine the responsibility of the British Government, under international law, for the tragic consequences of this period.” After extensive testimony, the panel consisting of New York State Supreme Court John Ingraham from Brooklyn and Irish Supreme Court Justice Adrian Hardiman reserved judgment on the case for 60 days until approximately June 20, 2013.