Justice Bernard J. Fried of the Supreme Court of the State of New York, New York County issued a ruling in People v. Thain that is interesting reading. The case began with a petition filed by the NY Attorney General to compel compliance with a subpoena issued to John Thain, the former CEO of Merrill Lynch. The petition was filed under the Martin Act, General Business Law §352 et seq., as part of the AG’s investigation of $3.6 billion in 2008 bonuses paid out by Merrill. Both Merrill and Bank of America sought to intervene contending that the bonus information amounted to a trade secret. Justice Fried’s ruling directs BofA to turn over to the NY Attorney General a list of employees who received bonuses paid out by Merrill Lynch & Co. on the eve of the financially strained brokerage house’s merger with the bank.

A complete docket report for the case is freely available at the Supreme Court Records On-Line Library (“SCROLL”).

Justice Fried ruled that employees can have no reasonable expectation of privacy in the information when they themselves are free to share it. “The Martin Act vests in the Attorney General the discretion to decide whether to keep the information that he gathers in the course of his investigation secret or public. The intervenors have no cognizable privacy interest that undermines that statutory discretion. The record does not support the intervenors’ claim that the employee compensation is a trade secret.”

Justice Fried, a graduate of the Class of 1965, is a BLS Adjunct Professor of Law and teaches Trial Advocacy.

For further details of the case, see the National Law Journal article Bank of America Ordered to Give Bonus Data to N.Y. Attorney General written by Noeleen G. Walder for the New York Law Journal.

Episode 039 – Conversation with Professor of Law Edward K. Cheng.mp3

In this podcast, Professor of Law Edward K. Cheng talks about his recent The Myth of the Generalist Judge, 61 Stanford Law Review 519. In the article, Professor Cheng addresses the question of whether judges really practice the generalist ideal empirically after having tested the question by examining opinion assignments in the federal courts of appeals from 1995-2005. The survey results revealed that opinion specialization is a regular part of circuit court practice, and that a significant number of judges do in fact specialize in specific subject areas. Professor Cheng also assesses the desirability of opinion specialization and sees it as more than a mere loophole in court operating procedures. In his view, opinion specialization is an important feature of judicial practice that could increase judicial expertise without incurring some of the negative costs commonly associated with specialized courts.

Prof. Cheng is an authority on scientific, expert, and statistical evidence and has written extensively in those areas. For more of his scholarship, see his Selected Works page.

Episode 038 – Treaties in Twenty Minutes: Part I.mp3
Episode 038 – Treaties in Twenty Minutes: Part II.mp3

Jean Davis, Reference Librarian/International and Foreign Law Specialist and Adjunct Associate Professor of Law, has recorded a podcast called Treaties in Twenty Minutes for the Advanced Legal Research class. The podcast is part of a Treaty Research Guide that Prof. Davis created for the class using libguide, an application recently acquired by the Library. The focus of the guide is to help researchers find and cite to treaties in compliance with Bluebook rules.

The development this week on the use of presidential signing statements is welcome news. Presidential signing statements, official pronouncements issued by the President contemporaneously to the signing of a bill into law the White House, have been used as far back as 1830 by President Jackson when he raised objections to an appropriations bill. A history of the use of signing statements is laid out in detail in a September 2007 CRS Report entitled Presidential Signing Statements: Constitutional and Institutional Implications.

The extensive use of signing statements during the Bush Administration drew criticism that led to the American Bar Association voting unanimously to investigate whether President Bush exceeded his constitutional authority in reserving the right to ignore laws enacted during his term of office. See Recommendation by the American Bar Association, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine in SARA, the BLS Library catalog.

This week’s Memorandum for the Heads of Executive Departments and Agencies on the Subject of Presidential Signing Statements by President Obama directs executive branch departments and agencies to seek the advice of the Attorney General before relying on signing statements issued prior to March 9, 2009.

The memo also describes legitimate uses of signing statements and sets out principles that the administration will adhere to in order to avoid abusive use of signing statements. Specifically, paragraph 3 of the memo states:

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

President Obama has not ended the practice of issuing signing statements as can be seen from his statement issued on signing H.R. 1, the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). The statement is more of a rhetorical signing statement than one seeking to modify the meaning of the statute like those of the prior administration. A Jurist report refers to Congressional critics including Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking Republican member Arlen Specter (R-PA) who said that Bush’s signing statements impermissibly intruded upon Congress’s power to write and enact laws under Article I of the Constitution which vests legislative powers exclusively to the Congress.

Episode 037 – Conversation with Professor of Law Minna J. Kotkin.mp3

In this episode, Professor of Law Minna J. Kotkin discusses her recent article Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the Top Ten Law Reviews available at SSRN. In the article, Professor Kotkin addresses the results of a study that she conducted with the help of BLS law students to determine the extent of gender bias in the leading law reviews in the US. The article points out that law schools look to article placement as a significant consideration in hiring, promotion, tenure, and lateral mobility. The statistical study demonstrates significant gender disparity. Published women faculty authors were at 20% compared to their percentage in the national tenured/tenure-track professoriate of 31%.

Professor Kotkin offers some possible explanations for the gender disparity, including: years and subject matter of teaching; affirmative action; institutional and family commitments; and social science theories. But none fully explains the disparity. She concludes by suggesting that editorial boards examine their selection processes for unconscious bias with regard to gender and conscious bias with regard to privilege and that they consider adopting true anonymous submissions. Prof. Kotkin also considers that women academics do not pursue “audacity” techniques, such as aggressive expediting and soliciting endorsements to further article placement in elite journals.

Minna J. Kotkin has been a Professor of Law at Brooklyn Law School since 1984. She is a 1975 magna cum laude graduate of Rutgers University School of Law and was Editor in Chief of the Rutgers Law Journal. She has written and lectured extensively on issues of employment discrimination and clinical legal education. A list of her many contributions to legal scholarship are available on her Selected Works page.

An earlier post on this site discussed Wyeth v. Levine, the case before the US Supreme Court on whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved. Today, the Court issued its decision rejecting the preemption argument made by the pharmaceutical defendant by a 6-3 vote. Justice Stevens wrote the majority opinion. Justice Alito wrote the dissent in which Chief Justice Roberts and Justice Scalia joined.

The factual background involves the plaintiff Levine, a children’s guitarist in Vermont who went to a clinic for treatment of a severe migraine headache and associated nausea. She was originally treated with intramuscular injections of Demerol (for headache) and the pharmaceutical defendant Wyeth’s drug, Phenergan (for nausea). Intramuscular injection was the preferred method for administering Phenergan identified in the product’s labeling. When she had no relief from that treatment, Levine returned to the clinic, where she received a second dose of Phenergan by IV push injection. Unfortunately, the needle was inserted into an artery rather than a vein leading to gangrene and the amputation of Levine’s arm. Levine filed a failure-to-warn product liability case against the pharmaceutical company and obtained a jury verdict in amount of $6.7 million. The defendant Wyeth argued that Vermont’s stricter regulations on administering the drug were preempted by less stringent federal regulations. The preemption doctrine has been used by drug manufacturers as a shield in lawsuits brought by injured consumers, adversely impacting consumers.

A NY Times article entitled Drug Approval Is Not a Shield From Lawsuits, Justices Rule suggests that preemption is no longer a valid defense for drug companies. While the decision appears on first reading to be a defeat for the preemption doctrine that federal-level approval stops liability suits at the state level, a closer reading suggests that the preemption doctrine is not entirely dead. At page 8 of the opinion, the Court draws a distinction between express and implied preemption. It also finds that congressional intent is the “touchstone” of implied preemption cases as well as express preemption cases, and that the presumption against preemption applies to implied preemption cases. The WSJ Law Blog has its take on the decision in its post A Big Day for State Tort Law: A Closer Look at Wyeth v. Levine suggesting that the case is really about statutory interpretation. In addition to the Wyeth case, the Court has recently addressed the preemption doctrine in its decisions in Riegel v. Medtronic, Inc. and Altria Group Inc. v. Good.

A report in the Brooklyn Daily Eagle features the efforts of BLS alumna Hemalee J. Patel, Class of 1991, the current president of the Brooklyn Women’s Bar Association (BWBA), in developing a mentoring program for BLS law students. This week, the BWBA, a chapter of the Women’s Bar Association of the State of New York (WBASNY), held a special event where about 25 BLS law school attendees were able to speak with several attorneys during one-on-one sessions of eight minutes each. The program allowed participants to discover how their mentors developed their careers. Attorneys offered advice on how to build a network of contacts within the legal profession. Membership for student in the BWBA is free.

“WBASNY, or the Women’s Bar Association of the State of New York, does long-term mentoring, but this is a little different,” Patel said. “It’s important for law students to understand early on what the bar association does and to get law students involved without a big commitment.” Patel was admitted to the bar of the State of New York in 1991 and to the Supreme Court of the United States in 1998, one of a few South Asian lawyers in the history of the Court to receive this honor. Last year, the Brooklyn Women’s Bar Association celebrated the 90th anniversary of its founding in 1918 with the 90th Annual Dinner which was held at the Brooklyn Botanic Garden.

The Brooklyn Daily Eagle article, True to Tradition, Hemalee Patel Leads Brooklyn Women’s Bar, by Samuel Newhouse explains in greater detail the community efforts of one of Brooklyn Law School’s most active local graduates.

On the 206th anniversary of the landmark US Supreme Court case of Marbury v. Madison, 5 U.S. 137 (1803), a Newsweek article Why Marbury v. Madison Still Matters lists important lessons from the case. Among them is first, the genius of the American system with an independent judiciary having the last word on the law and the Constitution; second, the fact that the Court was able to rise above being a predictable political player in a highly partisan cause and lastly, that greatness may arise from the messiest of political circumstances. Further timely reading is the WSJ Law Blog interview with David McKean, co-author of a soon to be released book The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court.

Recently, HeinOnline announced the results of its Hein ScholarCheck analysis on the U.S. Supreme Court Library with a list of the 50 Most-Cited Supreme Court Cases in HeinOnline. Marbury placed 13th on the list being cited 6,835 times.

The BLS Library has in its collection several items on the landmark case. They are:

The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review by Lawrence Goldstone (Call No. KF4575 .G65 2008) which traces the events surrounding the 1803 decision regarding judicial review that ultimately gave the Supreme Court the right to determine how the Constitution and its laws are interpreted.

Arguing Marbury v. Madison edited by Mark Tushnet (Call No. KF4575 .A965 2005) which includes the transcript of the oral argument and the intellectual background of the case.

Marbury Versus Madison: Documents and Commentary by Mark A. Graber and Michael Perhac (Call No. KF4575 .M367 2002) with documents and essays timed for the bicentennial in 2003, this work explains: the constitutional, political and philosophical background to judicial review; the historical record leading to this landmark case; the impact of the decision since 1803; and its impact on the world stage.

In an article in last week’s New York Law Journal, BLS Prof. Roberta S. Karmel describes some of the challenges facing the Obama Administration, in particular, Mary L. Schapiro, the 29th chairman of the U.S. Securities and Exchange Commission (SEC). In the current financial crisis, the SEC, commemorating its 75th Anniversary this year, is confronting some of the most daunting challenges in its existence s leaving some question whether it will survive as an independent agency.

Prof. Karmel notes that, under the Bush Administration, the SEC faced heavy, if unfair, criticism for its lack of regulatory oversight regarding the Madoff scandal and the collapse of the major broker-dealers. Looking forward to financial regulatory reform to restore confidence in the financial sector, Prof. Karmel questions how such regulation will take place and whether the SEC is the appropriate agency. There is certainly enough grist for the regulatory mill: broker-dealer holding companies, over-the-counter (OTC) derivatives, credit rating agencies, investment advisors and hedge funds. Efforts to bring these entities within the regulatory scope of the SEC, which have faced opposition in the past described in detail by Prof Karmel, may be easier given the current economic meltdown. The article ends by asking:

“Are the Obama administration, the SEC and Congress up to meeting all of the new challenges discussed in this column, as well as many other challenges on the table of financial regulatory reform? History teaches that most regulatory reform has occurred in an atmosphere of crisis and scandal, but that statutes drafted under such conditions are neither thoughtful nor even coherent. Hopefully, the new chairman of the SEC will be able to exert a salutary influence on such legislation.”

For the 75th Anniversary of the SEC, the SEC Historical Society will conduct a Fireside Chat on Tuesday, February 24th. Registration is at http://www.sechistorical.org/ with no cost. The event is the first in the sixth season of Fireside Chats and will look at the work of the SEC Division of Corporation Finance. Topics will include the changing financial markets, working under legislation that does not change, using safe harbors, no action letters and rule-making.