Today’s Law Librarian Blog reports that LexisNexis is offering a helpful program for law school grads who have accepted Associate positions at law firms but who are experiencing a deferred fall 2009 start date and taking on public interest work during their deferral period.

The LexisNexis’ ASPIRE Program offers:

• Free access to a LexisNexis menu consisting of federal and state case-law, codes, regulations and law reviews.
• The Martindale-Hubbell Career Center which provides access to non-profit interest and pro-bono job opportunities.
• Online training and materials to be better equipped for public interest work.
• Non-profit companies can post job opportunities for free on the site.

ASPIRE Program details. Qualifying students can register here.

Included in the BLS Library’s most recent New Book List is an intriguing title, Picking Cotton: Our Memoir of Injustice and Redemption by Jennifer Thompson-Cannino and Ronald Cotton (Call #HV6568.B87 T56 2009). The book summary states that it is the story behind the unlikely friendship which developed between the accused rapist Ronald Cotton, who served eleven years in prison for a crime he didn’t commit, and his accuser, Jennifer Thompson, raped at knifepoint by a man who broke into her apartment while she slept.

The web site for the book has information about the authors, upcoming news and events and links to the case file including the full Motion for Appropriate Relief for those interested in procedural issues related to wrongful convictions. There is also a trailer posted on the site which is embedded below.

For those who like lists, here is one of the commencement speakers for the New York tri-state metropolitan area:

New York

• Brooklyn Law School — Paul Volcker, Chair of the President’s Economic Recovery Advisory Board
• Benjamin N. Cardozo School of Law — Rosalie Abella, Justice of the Supreme Court of Canada
• Columbia Law School — Gray Davis, Former Governor of California
• CUNY School of Law at Queens College — Margaret E. Montoya, Professor of Law, University of New Mexico Law School
• Fordham University School of Law — Joel Klein, New York City Schools Chancellor
• Hofstra University School of Law — Wallace B. Jefferson, Chief Justice of the Texas Supreme Court
• New York Law School — Gregory H. Williams, President of City College of New York
• New York University School of Law — Zalmay Khalilzad, former US Ambassador to the United Nations (law school convocation speaker; Hillary Clinton, US Secretary of State, is the commencement speaker for New York University)
• Pace University School of Law — Nina Totenberg, NPR correspondent
• St. John’s University School of Law — Dennis Jacobs, Chief Judge of the US Court of Appeals for the Second Circuit
• Touro College Law Center — Charles J. Hynes, Kings County District Attorney and Adjunct Professor of Law, Brooklyn Law School

New Jersey

• Rutgers University School of Law at Camden — Hon. Wilma B. Liebman, Chair, National Labor Relations Board
• Rutgers University School of Law at Newark — Judge Freda Wolfson of the US District Court of New Jersey
• Seton Hall University School of Law — Judge Michael A. Chagares of the US Court of Appeals for the Third Circuit

Connecticut

• University of Connecticut School of Law — Sheila C. Bair, Chair of the Federal Deposit Insurance Corporation
• Quinnipiac University School of Law — Mark Kravitz, Judge of the United States District Court for the District of Connecticut
  Yale University Law School — no information

The list of greater New York metropolitan area law school commencement speakers would not be complete this year without including Drexel University Earle Mack School of Law, the nation’s newest law school located in nearby Philadelphia. Drexel received provisional ABA approval in 2008.

• Drexel Law School — Rudy Giuliani, Former Mayor of the City of New York

Ronald Colombo, Visiting Associate Professor of Law at BLS for the spring 2009 semesterm recently shared some thoughts on a new seminar at BLS “Controversies in Corporate Law” that he taught this past semester. The comments, The Christian Entrepreneur, were posted on the Conglomerate, a blog whose mission statement promises a “quirky mix of entries about business, law, Wisconsin, legal education, and whatever else” strikes the fancy of the Conglomerate bloggers. Prof. Colombo referred to the students in his class in response to an earlier post on Conglomerate entitled What is a Christian Perspective on Corporate Law? That earlier blog posed four questions:

• Is a Christian perspective on corporate law one of many possible true perspectives, or is it, in the end, the only way to ground a theory of corporations and corporate regulation? Similarly, is there likely to be a single Christian perspective?
• How does one construct a Christian theory of corporate law?
• How is a Christian perspective on corporate law different from communitarian theories of corporate law?
• What is the audience of a Christian perspective on corporate law?

Citing his experience teaching at BLS, Prof. Colombo noted that that when covering the issue of “Religion and the Corporation” in the seminar, his students reached a consensus that corporations should generally not adopt religious missions, and that those which did adopt such missions should certainly not enjoy anything analogous to the “free exercise rights” that individuals enjoy under the U.S. Constitution. He states “Corporations were seen as simply different — too powerful, too large, and too privileged under the law to permit a religious mission on their part.” Prof. Colombo observes that, in the legal profession and society at large, there is some antipathy towards all things associated with religion these days even though religion may offer helpful insights in corporate law.

Prof. Colombo has been visiting BLS from Hofstra University, where he has been a faculty member since 2006.

In the almost twenty years that David Souter served on the US Supreme Court, the refrain about his jurisprudence concerns his shift from a conservative jurist to a liberal one. In 1992, Justice Souter disappointed conservatives with his roles in two cases: the plurality opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), upholding the central ruling in Roe v. Wade, and the 5-4 opinion in Lee v. Weisman, 505 U.S. 577 (1992), voting against allowing prayer at a high school graduation ceremony. And in 2000, when Justice Souter dissented in Bush v. Gore, 531 U.S. 98 (2000), to allow the presidential election recount to continue, observers of the Court placed him in the liberal wing of the Court.

But Justice Souter’s tenure on the Court is of course far more nuanced. He has written 156 majority opinions for the Court. Some are worth noting. In the area of constitutional law, his opinion in McCreary County v. ACLU, 545 U.S. 844 (2005), ruling that government-sponsored displays of the Ten Commandments in county courthouses is unconstitutional under the Establishment Clause, is seen as a victory for the separation of Church and State. His opinion for a unanimous Court in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) held that government cannot require the organizers of a private parade to include a group with whose message they disagree. That opinion is cited as a landmark case on the right of speech and association but viewed as a setback for gay rights. Yet he joined the majority opinion ruling unconstitutional under the Due Process Clause a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct in Lawrence v. Kansas, 539 U.S. 558 (2003). Yet as to free speech, Justice Souter’s views did not preclude his opinions upholding campaign finance regulation, in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001) and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000).

Some of Justice Souter’s rulings profoundly impact technology. In his landmark opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), he addressed copyright law; and his opinion in Verizon Comms. v. FCC, 535 U.S. 467 (2002) will play a central role in telecommunications regulation. His opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), addressed a critical question of procedure and is a major ruling on the obligation to set forth detailed allegations in a complaint.

Justice Souter’s 123 dissenting opinions disclose his leading role, particularly on the liberal wing of the Court. In his dissent in Kansas v. Marsh, 548 U.S. 163 (2006), he voiced strong concerns about the death penalty where there was evidence that wrongly convicted individuals were being executed. In the current term, he wrote the lead dissent in the Court’s most contested cases. His dissent in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009) challenged Justice Thomas’ opinion upholding a mandatory arbitration provision included in a collective bargaining agreement. In Bartlett v. Strickland, 129 S. Ct. 1231 (2009), Justice Souter’s dissent voiced strong support for a remedy under Section 2 of the Voting Rights Act of 1965 where there was evidence of voter dilution of racial minorities in a voting district. In his dissent in Waddington v. Sarausad, 129 S. Ct. 823 (2009), Justice Souter differed from Justice Thomas’ majority opinion limiting the authority of federal courts in habeas corpus petitions to review the decisions of state courts on instructions given to juries on an accomplice’s role in a crime.

The NY Times has a more detailed analysis of Justice Souter’s legacy in The Judgment on Justice Souter with the thoughts of nine prominent legal scholars.

For additional reading on Justice Souter, the BLS Library has in its collection David Hackett Souter: Traditional Republican on the Rehnquist Court by Tinsley E. Yarbrough (Call #KF8745.S68 Y37 2005).

This Law Day provides an opportunity to celebrate the contributions to the rule of law made by members of the New York bar who have worked at pro bono efforts on behalf of those in need. The New York State Bar Association issued a press release announcing its annual Pro Bono Awards honoring lawyers, law firms and law students who provided free legal services to the poor. The award is given to convey a message about the importance of helping to provide all New Yorkers, regardless of income, with equal access to the justice system. The awards are to be presented today at the State Bar Center in Albany.

Among the honorees is the New York law firm of Kaye Scholer LLP, which was selected to receive the prestigious Pro Bono Award in the Large Law Firm category. The firm, with more than a dozen alumni from Brooklyn Law School, was recognized for the 27,115 hours of pro bono work, averaging 79 hours per attorney. The matters handled covered a broad range of practice areas, from successfully convincing the Governor of Virginia to commute the death sentence of a mentally incompetent client one day before he was to be put to death, to petitions for Holocaust survivors seeking pension funds from the German government for work performed in ghettos, to political asylum applications for immigrant victims of torture and persecution.

With the debate about the legality of torture, it is gratifying to see members of the bar address the issue in a manner that merits the awarding of an honor rather than the prospect of prosecution. On this Law Day, the legal community has much to debate about the legality of torture. The BLS Library collection of material on this topic includes:

Why Not Torture Terrorists?: Moral, Practical, and Legal Aspects of the “Ticking Bomb”’ Justification For Torture by Yuval Ginbar (Call #K5256 .G56 2008)

The United Nations Convention Against Torture: a Commentary by Manfred Nowak (Call #K5304.A41984 N69 2008)

A Question of Torture: CIA interrogation, from the Cold War to the War on Terror by Alfred W. McCoy (Call #HV8599.U6 M33 2006)

The Torture Debate in America edited by Karen J. Greenberg (Call #JC599.U5 T665 2006)

An article in the New York Law Journal entitled Court Issues ‘Wake-Up Call’ On Slipshod Search Terms (password required) makes clear that formulating proper keyword searches is not just an academic exercise. This is especially so in a time when attorneys are required to design search terms for electronic discovery of emails and other electronically stored information (ESI). The article cites an opinion and order by U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York in which, the magistrate, weary of deficient keyword searches, recently issued a self-styled “wake-up call” to members of the bar in the Southern District. Magistrate Judge Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation rather than attorneys designing keywords without adequate information “by the seat of their pants”.

The opinion was issued in William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co. a case involving multiple parties and multi-million dollar claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice. Describing this case as “just the latest example of lawyers designing keyword searches in the dark,” without adequate discussion with those who wrote the e-mails, Magistrate Judge Peck cited to prior warnings about this problem from judges in other courts. In his view, these prior warnings had not gotten through to the bar in the Southern District. The earlier warnings were tailored to the different circumstances of those cases, but Magistrate Judge Peck apparently thought them equally applicable across the spectrum of electronic discovery issues.

Magistrate Judge Peck’s opinion stressed four requirements for the production of ESI.

· There must be cooperation between opposing counsel. Therefore, he strongly endorsed The Sedona Conference Cooperation Proclamation.
· Second, attorneys must carefully design the appropriate keywords.
· Third, these keywords should be selected with the input from the ESI’s custodians.
· Finally, the proposed technique should be validated to ensure it is not substantially over-inclusive or under-inclusive.

In the conclusion of his opinion, Magistrate Judge Peck wrote:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives”. It is time that the Bar – even those lawyers who did not come of age in the computer era – understand the importance of properly crafted electronic searches.

Episode 041- Conversation with Professor of Law Anita Bernstein.mp3

In this conversation, Prof. Anita Bernstein, Anita and Stuart Subotnick Professor of Law at BLS, discusses her recent article Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 Cornell L. Rev. 479 (2009). This is a very instructive article for all law students and especially timely for graduating students. The abstract reads:

Many entrants into the legal profession decided to become lawyers after they were inspired by improvements in social conditions achieved by lawyers like Abraham Lincoln and Thurgood Marshall or literary heroes like Atticus Finch. The historical record of achievement recursively invites new generations into this occupation. Once these entrants arrive at law school, however, the sense of inspiration with which they began often fades, and an inchoate pessimism, if not full-blown cynicism or depression, takes its place. Critics of contemporary legal education who lament this descent into malaise tend to see no cure for it. When they do offer a fix, it looks uncannily like an agenda they advocated in another context, repackaged as a tonic

This Essay explores a better source of vigor and occupational skill within legal education. Learning about the perils and defeats that their profession experiences would, paradoxically, increase the strengths of new lawyers. In this context, forewarned really does mean forearmed. Informed judgment about this profession includes knowing how and why lawyers lose their licenses; why a lawyer pays out money for malpractice; what constitutes a breach of fiduciary duty; what level of work performance is incompetent or ineffective under the Sixth Amendment; when to struggle against judges; why a lawyer is disqualified from representing clients; and why lawyers forfeit some of their freedoms of speech and association. A command of pitfalls enables individual lawyers not only to defend themselves against the attacks they might someday face but also to advance what is good for their clients and the public. Only from a base of pitfalls-knowledge can lawyers master their own profession.

The WSJ Law Blog has a interesting post about charges filed against the Somali teenager, Abduwali Abdukhadir Muse, in the US District Court for the Southern District of New York. The 10 page criminal complaint charges Muse with conspiracy to seize a ship by force as well as the rarely invoked charge of piracy under 18 U.S.C. § 1651. The piracy statute states:

“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

On its face, a charge of piracy may seem fairly straightforward. But, as the Law Blog post suggests, the definition of piracy is not so simple. The statue states that the crime of piracy shall be defined by “the law of nations” not by Congress. This raises the issue of which law of nations federal prosecutors should look to for guidance especially since the last international treaty discussing piracy that the U.S. ratified was the 1958 Law of the Sea treaty. The more recent United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 3 (UNCLOS) concluded on Dec. 10, 1982 was never ratified by the US.

The complexities of charging the crime of piracy is the subject of an article Protections Afforded to Captured Pirates under the Law of War and International Law, 33 Tulane Maritime Law Journal 1 (2008) by Michael Passman, BLS Class of 2008. Passman was a member of the Executive Board of the Brooklyn Journal of Corporate, Financial and Commercial Law and the Symposium Editor when he attended BLS.

This detailed article states that, while pirates may be captured on the high seas or outside the territory of any state under international law, they are to be tried and punished under the criminal law of the state holding them in local courts, not under international law in an international tribunal. The article argues that pirates are unique in that they are arguably a hybrid between criminal and combatant, neither true civilians nor true belligerents. For that reason, it is not clear whether they are protected by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused, such as the US Bill of Rights. Passman’s article focuses on whether international humanitarian law, specifically the Third and Fourth Geneva Convention and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apply to pirates.

The BLS Library catalog, SARA, links to an internet site Information Resources on Piracy and Armed Robbery at Sea (Call #VK203 .I63 2009) for more resources on the subject.

The Brooklyn Law Review will publish in its forthcoming edition an article by Western New England College School of Law Assistant Professor of Law Sudha Setty entitled Litigating Secrets: Comparative Perspectives on the State Secrets Privilege. The article is very timely given the litigation now pending in the Northern District of California in the cases of Al-Haramain v. Bush and Jewel v. National Security Agency. In both cases, the Obama administration has adopted the Bush administration’s position that courts cannot judge the legality of the National Security Agency’s (NSA’s) warrantless wiretapping program. The government filed a motion to dismiss Jewel v. NSA earlier this month. In the Al-Haramain case, a civil suit brought by an Islamic charity allegedly subjected to illegal NSA surveillance, Judge Vaughn Walker has just issued a protective order requiring the government to come up with a way to safeguard the classified information it plans to present in the NSA’s defense by May 8. Walker crafted the order narrowly to prevent the government from appealing it immediately to the Ninth Circuit. Whether the administration presents a plan for safeguarding classified information or re-asserts the state secrets privilege remains to be seen.

The abstract of the article on SSRN reads:

The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India – an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative analysis is necessary to fully understand the transnational implications of the U.S. application of the state secrets privilege, which have recently come to light in litigation involving both the United States and England.

This Article concludes that domestic reform efforts continue to be necessary to achieve an appropriate application of the privilege which balances national security with the need to preserve the rule of law, individual rights, liberty interests and government accountability. The Article further suggests that reforms should explicitly account for alleged human rights abuses by the government in determining whether a claim of privilege should be upheld.

For additional reading from the BLS Library collection on the subject of state secrets, see SARA, the online catalog for Presidential Secrecy and the Law by Robert M. Pallitto and William G. Weaver (Call # JK468.S4 P35 2007) and Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments (Call # KF4570 R66 2007) a Congressional Research Service Report by Morton Rosenberg.