On the eve of Bastille Day and the 220th anniversary of la Fête de la Fédération, the 557-seat French National Assembly adopted a bill prohibiting the concealment of the face in public. The bill does not single out Muslims, but it is seen as a way to combat religious extremism. The proposal would fine women the equivalent of $185 for wearing the veil in public or make them do community service. Those who oppress women and make them wear the veil could face a fine of up to $38,000 or up to one year in prison – double if the woman is a minor.

While the vote was nearly unanimous (335 to 1), the proposal has opposition as 241 members abstained, mostly the opposition Socialist, Communist and Green parties, who oppose women wearing the full veil, but do not see legislation as a solution. Last year, some members of parliament called for a commission to investigate whether the veil undermined French values. The bill moves to the French Senate where it is expected to have no opposition when it hold its vote in September. Once signed by President Nicolas Sarkozy, the ban would take effect next spring. Last year, Sarkozy said that the burka was “not welcome” in France and that it was “not a sign of religion but a sign of subservience.” The comments provoked a public reaction that showed widespread support for a ban on both the burka, an enveloping outer garment, and the niqab, or face covering. Muslim groups, however, complained that such a ban would stigmatize all members of their religion.

The bill, available at the French National Assembly website, reads in part:

No person may, in public, wear clothing designed to conceal his face.
Public space is made up of public roads and places open to the public or engaged in a public service.
The prohibition does not apply if the conduct is required or permitted by law or regulation, whether it is justified by reasons of health or professional reasons , or if it is part of sporting activities , festivals or artistic or traditional.
The failure of anyone to impose one or more other persons to conceal their faces by threat, violence, coercion, abuse of authority or abuse of power, because of their sex, is punishable by imprisonment for one year and €30,000 fine. Where the act is committed against a minor, the penalty is increased to two years imprisonment and a €60,000 fine.

The ban has strong public support but critics, according to an Al Arabiya report, say the law exploits a non-problem (only about 1,900 women among France’s five to six million Muslims wear a veil) in a bid to pander to anti-immigration voters and to distract attention from France’s economic woes. With questions on the ban’s constitutionality, the ruling Union for a Popular Movement party has agreed to send the eventual final version of the legislation to the Constitutional Council watchdog. A further challenge could occur from the European Court of Human Rights in Strasbourg, France. Amnesty International has said the law “violates rights to freedom of expression and religion.”

The French National Assembly vote could set a precedent for other European countries. Earlier this year, the Belgian lower house voted 136-0 to approve a bill that would ban the burqa and other full face veils in public. Britain and Spain are considering similar legislation as is the European Parliament. See the report in Jurist for other jurisdictions currently debating legislation to ban the burqa. Support for such a ban is far higher in Europe than in the US, where 28% of the public would approve it, according to a Pew Global Attitudes Project poll, compared with 82% in France and 62% in Britain. A Europe-wide trend reacting to the growing Islamic presence resulted in the Swiss electorate voting to outlaw minarets last year.

The US Attorney in Newark, NJ has charged the operators of Wiseguy Tickets Inc., a ticket reselling service, with one count of conspiracy, numerous counts of wire fraud (18 U.S.C. §1343), additional counts of obtaining information from a protected computer and other counts of accessing a protected computer with intent to defraud in violation of the Computer Fraud and Abuse Act of 1986 (18 U.S.C. §1030). In the indictment, the government claims the defendants purchased tickets from Ticketmaster by automated means, violating Ticketmaster’s terms of service and therefore the Computer Fraud and Abuse Act (CFAA).The defendants, who were able to beat computer security with the use of CAPTCHA bots, bought and scalped 1.5 million seats for events such as Bruce Springsteen concerts.

They have now asked US District Court Judge Katherine S. Hayden to dismiss the charges which they claim turn lawful activity into crimes. Prosecutors claim that after buying tickets on a first-come, first-saved basis through Ticketmaster, Live Nation Entertainment Inc., Telecharge and other vendors, the defendants resold them making more than $28.9 million in profit from 2005 to 2008. In their Memorandum of Law in support of the Motion to Dismiss, lawyers for defendants called the indictment “a naked effort to punish legal conduct under federal law — the resale of tickets for events — by using the Computer Fraud and Abuse Act (‘CFAA’), a statute that has nothing to do with so-called ‘ticket scalping’”.

The Electronic Frontier Foundation (EFF) has filed an amicus brief in the case arguing that the prosecution in this case expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service that websites decide to impose on users. “Under the government’s theory, anyone who disregards — or doesn’t read — the terms of service on any website could face computer crime charges,” said EFF Civil Liberties Director Jennifer Granick. “That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails.”

Bloomberg reporter David Voreacos has more information on the case in his article ‘Wiseguys’ Ask U.S. Judge to Dismiss Scalping Charges. PC Mag.com’s article Four Indicted in CAPTCHA Hacks of Ticket Sites, from earlier this year, gives more details on Wiseguy Tickets.

Ninety days have elapsed since Justice John Paul Stevens submitted his letter of resignation to the President on April 9, 2010. Thirty days later, on May 10, the President nominated Elena Kagan to fill the vacancy. An additional sixty days have passed and the seat remains vacant. How long does it take to fill a Supreme Court vacancy? A recent Congressional Research Service report, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, examines the nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action). It concluded that the process has generally taken almost twice as long for nominees after 1980 than for nominees in the previous 80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981 through 2009 (when the most recent Supreme Court appointment was completed), the process took a median of 111.5 days.

A Wall Street Journal article, Supreme Court Nomination Timelines, which has a timeline of the confirmation process for the current court, says that Justice Clarence Thomas had the longest process from nomination to confirmation at 107 days, but his nomination was slowed by the harassment allegations of Anita Hill. John Paul Stevens had the swiftest process at just 19 days from his nomination to Senate confirmation.

Since 1980 Presidents have moved more quickly in announcing nominees after learning of vacancies (a median of 18 days compared with 34 days before 1980). But the Senate portion of the process (i.e., from the nomination announcement to final Senate action) now appears to take much longer than before (a median of 80.5 days from 1981 through 2009, compared with 17 days from 1900 through 1980). Most notably, the amount of time between the nomination announcement and first Judiciary Committee hearing has more than quadrupled–from a median of 12.5 days (1900-1980) to 50.5 days (1981-2009). The confirmation of Supreme Court Justice Sonia Sotomayor in 2009 illustrated the lengthier overall time frame for recent Supreme Court appointments. Forty-eight days elapsed between President Barack Obama’s announcement of Sotomayor’s selection and the start of Judiciary Committee hearings on the nomination. The entire interval from the time at which the President apparently first learned of the vacancy until final Senate consideration lasted 97 days.

Now that the Senate Judiciary Committee has held its hearings on the Kagan nomination, it is expected to vote in favor of her nomination when the Senate returns from its recess on July 12. When the Committee forwards the nomination to the Senate for an eventual confirmation vote, perhaps by August 6, the last day before the Senate takes its month-long August recess break, the process for the Kagan nomination will have lasted close to 120 days.

For further reading on the history of the appointment process for the Supreme Court, the Brooklyn Law School Library has in its collection Justices, Presidents, and Senators: a History of the U.S. Supreme Court Appointments from Washington to Bush II by Henry J. Abraham (Call #KF8742 .A72 2008), a history of the 110 members of the Court. Justice Sotomayor is the 111th Justice on the Court. If confirmed, Elena Kagan will be the 112th Justice.

Recently, the library went live with a new automated interlibrary loan service called ILLiad.  ILLiad is designed with the user in mind.  After a user has registered an account and established a username and password, they can access a personalized interface through the web.  The interface allows patrons to submit and review requests for materials, monitor the status of their requests, renew materials, and receive electronic versions of articles posted to a patron’s personal website.   The library hopes that this service will better serve students and faculty by shortening the time articles are received and by making the borrowing of materials from other libraries a more transparent process.

With three weeks before the July bar exam, patrons at the Brooklyn Law School library can review additional study resources in the collection. , A subject search for “Bar examinations—United States—Study guides” in the online catalog will retrieve some helpful resources for bar exam study on reserve at the circulation desk such as the 2009 edition of The Bar Exam in a Nutshell by Suzanne Darrow-Kleinhaus (Call # KF303 .D37 2009). Also on reserve is Pass the Bar by Denise Riebe and Michael Hunter Schwartz (Call # KF303 .R54 2006).


The library’s main collection has Scoring High on Bar Exam Essays by Mary Campbell Gallagher (Call # KF303 .G35 2006). There is also a 50 minute streaming video produced in 2008 that is accessible from the BLS Library catalog called Pass the Bar: We Did, You Can Too!

Past exams are available for free on bar exam websites, such as New York’s page of Past Exam Questions. Visit the National Conference of Bar Examiners lists the Boards of Law Examiners site for all of the states for those taking bar exams outside New York.

Fans of Bafana Bafana: Kathy Darvil and Jean Davis published a new research guide focusing on South African legal sources. Our guide highlights free websites, such as: a searchable database of cases and statutes provided by the Southern African Legal Information Institute; and the website of the Constitutional Court of South Africa. It also describes fee-based sources available at BLS, such as: Sabinet’s searchable collection of South African legal journals (pdf); and JutaLaw (source of the well-known reporter: South African Law Reports and Juta’s case digest). See guide tab: Databases and subtab: Databases of Articles. TIPS for BLS faculty, students and administrators: If you do not live in BLS housing and wish to search the collection of South African legal journals off-campus, you will need to implement the BLS proxy instructions. Contact BLS Library’s reference desk (refdesk@brooklaw.edu) to obtain the log-in information for Juta Law. Ngikufisela inhlanhla! (Good luck!)

Copy of “a baobab grows in Brooklyn” by Bradley Pulaski, student, School of Visual Arts:

While our library has an excellent collection of court reports, statutes, regulations, law reviews and treatises, we also have several special collections that are briefly described below in order to give the BLS community a picture of the true wealth of the library’s holdings.

Archives: The archival material of the law school is housed in the library cellar in room C38. This collection contains law school bulletins, yearbooks, commencement programs, class pictures, centennial memorabilia, BLS newspapers and newsletters and other material back to the founding of the school over a century ago. To access this collection, please see a reference librarian.

Faculty Publications: While some books written by the faculty are available in the lower level main collection and law review articles are available in Hein Online, Lexis, Westlaw and the Social Science Research Network (SSRN), the library keeps a copy of all faculty-authored books, book chapters and law review articles in a secure storage collection. If you are unable to locate an article, book or book chapter written by a member of the faculty, please ask a reference librarian for assistance.

Government Documents: Our library is a depository for United States government documents, as are over 1,200 libraries throughout the United States. While we select a small percentage of documents in print, more and more depository items are now available electronically. This change in depository distribution allows the public to view these items from their homes and offices as well as from libraries if they do not have home or office access to a computer. As part of our membership in the depository program, we allow members of the public access to our electronic and print documents with no entry restrictions. Reference Librarian Rosemary Campagna supervises the depository collection and provides reference assistance.

Joint International Law Project: The Joint International Law Project (JILP) was begun in 1983 as a shared collection of international law resources among the libraries of the City University of New York School of Law (CUNY), New York Law School (NYLS) and Brooklyn Law School. When the project began each library acquired a core collection of international materials in predetermined areas of international law that were agreed upon by the participants. For example, New York Law School was primarily responsible for European Union materials, Brooklyn Law School for United Nations materials and CUNY Law School for materials on developing countries.

For the past several years, due to a variety of circumstances, the libraries have moved away from the collective decision making on purchases in international law, allowing libraries to continue their commitment to international law but permitting each library to purchase whatever material it wants and needs. The directors of the three libraries are looking for new ways to work together in the area of international cooperative collection development, but one thing remains the same—open access. Members of the BLS community have access to the libraries of CUNY and NYLS by just showing a valid BLS ID card upon entering either of our partner libraries and we reciprocate for students and faculty of New York Law School and CUNY Law School.

Sobel Collection & Rare Books: The library has a collection of hundreds of rare books ranging from treatises such as Blackstone’s Commentaries on the Laws of England, Wigmore on Evidence, Yearbooks of the Selden Society, and Howell’s State Trials, but we also have an another impressive collection of rare books given to the library by the late Judge Nathan R. Sobel of the Brooklyn Supreme Court in 1996. When the Court could no longer maintain this collection, Judge Sobel offered it to BLS and the books were transferred to the renovated BLS library and shelved in rare book cases on the second mezzanine. This collection covers a wealth of topics, including trials, biographies, both English and U.S. legal history, American reports and digests and New York City and Brooklyn law-related materials.

All the material in both the general rare book collection and the Sobel collection are cataloged and listed in SARA, our online catalog. Since these valuable collections are kept in locked cases on the second floor, second mezzanine and third floor of the library, users must ask a member of the library staff at the circulation desk to retrieve these materials. All of the items are also non-circulating, but they are available for use during all regular library hours.

The US Supreme Court decision Morrison v. National Australia Bank is worth reading for the differing views of the role of the courts expressed by Justice Scalia in the majority opinion and Justice Stevens in his concurrence. Justice Scalia forcefully ruled that §10(b) of the Securities Exchange Act of 1934 (and associated Rule 10b-5) have no international reach and found a presumption against extraterritoriality. Justice Stevens called the presumption against extraterritoriality a nice catchphrase that overstates the point saying: “The presumption against extraterritoriality can be useful as a theory of congressional purpose, a tool for managing international conflict, a background norm, a tiebreaker. It does not relieve courts of their duty to give statutes the most faithful reading possible.”

The case involved a private civil suit alleging securities fraud in a transaction that took place mostly in Australia with some minor US conduct. Eight Justices affirmed the Southern District of New York dismissal of the claim which the Second Circuit subsequently affirmed. But Justice Scalia’s opinion went on to criticize a general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades. Justices Breyer, Stephens and Ginsberg joined in concurring opinions. Justice Sotomayor did not participate.

Justice Scalia’s 24 page opinion on the extraterritorial reach of the §10b noted that it is a “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'” It also said “When a statute gives no clear indication of an extraterritorial application, it has none.” The ruling strongly criticized the New York-based Second Circuit for relying on a 1968 opinion Schoenbaum v. Firstbrook, 405 F. 2d 200 to use a conduct-and-effects test which asked “(1) whether the wrongful conduct occurred in the Unites States, and (2) whether the wrongful conduct had a substantial effect in the United States or upon United States citizens.” The conduct-and-effects test sought to ascertain what Congress would have done if it had addressed the eventual internationalization of the securities markets. Instead, Justice Scalia formulated a “transactional test” under §10(b), saying that it forbids not all deceptive conduct, but only deceptive conduct “in connection with the purchase or sale of any security registered on a national securities exchange or on any security not so registered.” Finding the statutory focus to be the “purchase and sale transactions,” he concluded that §10(b) applied to “transactions in securities listed on domestic exchanges, and domestic transactions in other securities.”

Today’s securities market is international in scope with few cases that are either wholly foreign or wholly domestic. The “transactional test” may leave unprotected US citizens who purchase or sell securities outside the United States as well as foreign citizens trading abroad who are victims of domestic conduct perpetrated by Americans over whom foreign courts may lack personal jurisdiction. Interestingly, the issue of the extraterritorial reach of US securities law is part of the Wall Street Reform and Consumer Protection Act of 2009, the financial reform bill pending in Congress. §7216 of H.R. 4173 provides courts with extraterritorial jurisdiction for “1) conduct within the United States that constitutes significant steps in furtherance of the violation, even if the violation is committed by a foreign adviser and involves only foreign investors; or 2) conduct occurring outside the United States that has a foreseeable substantial effect within the United States.”

For more on the Morrison case, see the post at the Securities Law Prof Blog