Episode 032 – Conversation with Ernest Badway, Adjunct Assistant Professor of Law.mp3

In this conversation, Prof. Ernest Badway talks about recent changes in the DOJ guidelines, the Principles of Federal Prosecution of Business Organizations, discussed in the prior posting on this site. Prof. Badway, who teaches Securities Fraud: Criminal and Regulatory Enforcement this semester, is a partner at Fox Rothschild, LLP and practices in the areas of securities litigation and regulation, white collar criminal defense, and business litigation. He has recently written on the topic in an article entitled “Is the McNulty Memorandum Morphing into the Filip Letter?” in the ABA’s White Collar Crime Newsletter. He has also written two earlier articles on the DOJ guidelines:”Aggressive Corporate Crime Approach Offers Little Protection,” New Jersey Law Journal (March 24, 2008) and “Is the McNulty Memorandum Fool’s Gold?” New Jersey Law Journal (March 03, 2008).

Acting Justice Lucy Billings of Bronx Supreme Court issued a ruling today that Gov. David Paterson’s directive to state agencies to recognize same-sex marriages performed in other states and countries is legal in New York. The court ruled that to “recognize same-sex marriages legally solemnized in other jurisdictions is consistent with New York’s common law, statutory law, and constitutional separation of powers.”

The Arizona-based Alliance Defense Fund (ADF), a conservative Christian non-profit organization with the stated goal of “defending the right to hear and speak the Truth through strategy, training, funding, and litigation” filed an Article 78 Petition on behalf of Sen. Marty Golden (R-Brooklyn), Sen. Serphin Maltese (R-Queens) and Assembly Republican Minority Leader James Tedisco (R-Schenectady). Alleging that Paterson overstepped his authority because New York law does not allow for same-sex marriages, the suit claimed that the issue is for the NY State Legislature. In 2006, the NY Court of Appeals ruled in Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 821 N.Y.S.2d 770, that New York law does not permit same-sex marriage and that there is no constitutional right to same-sex marriage. Other plaintiffs included Conservative Party chairman Michael Long and Duane Motley of New Yorkers for Constitutional Freedoms which claims to be New York State’s only full time Christian Lobby Organization.

On May 14 of this year, Gov. Paterson issued the directive to state agencies to allow for gay married couples to have access to the same rights and privileges as heterosexual couples based on a ruling in Martinez v. County of Monroe, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4th Dept. 2008). That case involved a Monroe County couple, one of whom sued Monroe Community College after the school refused to provide health insurance for her partner whom she married legally in Canada. The court ruled the plaintiff had to be awarded health insurance by the college because of the state’s policy of recognizing marriages performed elsewhere.

The ADF and the Governor’s office had no immediate response to the ruling. A list of New York State statutes and regulations that use the terms “spouse,” “husband” and “wife” was prepared by the Association of the Bar of the City of New York and the Empire State Pride Agenda Foundation in 1,324 Reasons for Marriage Equality in New York State.

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers according to the US Department of Labor’s History of Labor Day. The holiday originated in 1882 when the Central Labor Union of New York City sought to create “a day off for the working citizens”. That year, the first Labor Day Parade took place in New York City on Tuesday, September 5, 1882. The Library of Congress American Memory web site has a brief entry about the First Labor Day parade in Union Square.

The DOL site states that the New York State Legislature was the first to introduce a state bill recognizing Labor Day, but the first to become law was passed by Oregon on February 21, 1887. Later that year, Colorado, Massachusetts, New Jersey and New York also enacted laws establishing the Labor Day holiday followed by Connecticut, Nebraska, and Pennsylvania by the end of the decade. By 1894, 23 other states had adopted the holiday in honor of workers. Finally, on June 28, 1894, President Grover Cleveland signed S. 730 into law declaring Labor Day, the first Monday in September of each year, as a national holiday.

Originally, Labor Day legislation did not require private employers to give their employees a day off from work, much less require them to give employees holiday pay. See N.Y. Laws of 1887, Ch. 289; 28 Stat. 96 (1894). Some businessmen voluntarily gave their employees a day off, but not most. As Samuel Gompers explained to a Labor Day crowd in San Francisco in 1911, “Labor day in America was not given to us any more than other things are given to us, on a silver platter. It was wrung from unwilling employers and legislatures. We just took it.”

Today with the diminishing strength of the American labor movement, Labor Day has come to mean merely a three-day weekend marking the end of summer and time to go back to school. This Labor Day, September 1, Workplace Fairness will launch the Take Back Labor Day blog project on the Today’s Workplace blog. You can visit the blog and share your opinions about workplace fairness in the US. For a list of participants in the project on workplace issues, click here.

Acing Your First Year of Law School: the Ten Steps to Success You Won’t Learn in Class by Shana Connell Noyes & Henry S. Noyes (Main – Call # KF283 .N69 1999)

How to Succeed in Law School, 2nd ed., by Gary A. Munneke (Main – Call # KF283 .M86 1994)

Law School Confidential: the Complete Law School Survival Guide: By Students, For Students by Robert H. Miller (Main – Call # KF283 .M55 2000)

The Law Student’s Pocket Mentor: From Surviving to Thriving by Ann L. Iijima (Reserve – Call # KF283 .I35 2007)

Reading like a Lawyer: Time-Saving Strategies for Reading Law like an Expert by Ruth Ann McKinney (Main – Call # KF283 .M398 2005)

Slaying the Law School Dragon: How to Survive–and Thrive–in First-Year Law School, 2nd ed., by George Roth (Main – Call # KF283 .R68 1991)

Succeeding in Law School by Herbert N. Ramy (Reserve – Call # KF283 .R36 2006)

Now that the Brooklyn Law School 1Ls have gone through orientation, this is a good time to suggest reading Professor Orin S. Kerr’s How to Read a Legal Opinion (available for downloading at SSRN’s Legal Scholarship Network) published in the Autumn 2007 edition of the GREEN BAG, An Entertaining Journal of Law, Vol. 11, No. 1, p. 51. As stated in the abstract, this popular essay “is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.” SSRN is available on the Brooklyn Law School Library Database page. To download the full text of the article on SSRN, registration is required.

On the eve of the national conventions of the two major political parties, C-Span aired a Massachusetts School of Law forum on Presidential Power in America: Article II of the Constitution. Panelists included Peter Irons, Professor of Political Science at the University of California, Jules Lobel, Professor of Law at the University of Pittsburgh and David Adler, Professor of Political Science at Idaho State University. The entire hour long panel discussion is worth viewing. Of particular interest at 24 minutes into the video is Professor Adler’s discussion of “A Constitutional Presidency” which runs for 12 minutes.

In his section of the panel discussion, Professor Adler says that the Bush administration has claimed powers for itself that the British people had refused to grant King George III at the time of the Revolutionary War. “No executive in the history of the Anglo-American world since the Civil War in England in the 17th century has laid claim to such broad power,” he says. “George Bush has exceeded the claims of Oliver Cromwell who anointed himself Lord Protector of England.” He goes on to say that Bush has “claimed the authority to suspend the Geneva Convention, to terminate treaties, to seize American citizens from the streets to detain them indefinitely without benefit of legal counseling, without benefit of judicial review. He has ordered a domestic surveillance program which violates the statutory law of the United States as well as the Fourth Amendment.”

Adler relates that the authors of the US Constitution wrote that the president “shall take care to faithfully execute the laws of the land” because “the king of England possessed a suspending power” to set aside laws with which he disagreed, “the very same kind of power that the Bush Administration has claimed.” Former Attorney General Alberto Gonzalez, Adler notes, repeatedly referred to the President’s “override” authority, “which effectively meant that the Bush Administration was claiming on behalf of President Bush a power that the English people themselves had rejected by the time of the framing of the Constitution.”

Adler says the Framers sought an “Administrator in Chief” that would execute the will of Congress and the Framers understood that the President, as Commander-in-Chief “was subordinate to Congress.” That very concept, Adler states, derived from the British, who conferred it on one of their battlefield commanders in a war on Scotland in 1639 and it “did not carry with it the power over war and peace” or “authority to conduct foreign policy or to formulate foreign policy.” That the Commander-in-Chief was subordinate to the will of Congress was demonstrated in the Revolutionary War when George Washington, granted that title by Congress, “was ordered punctually to respond to instructions and directions by Congress and the dutiful Washington did that,” according to Adler.

Adler relates how John Yoo, formerly of the Office of Legal Counsel, wrote in 2003 that the President could authorize the CIA or other intelligence agencies to resort to torture to extract information from suspects based on his authority. However, Adler points to the 1804 case in Little vs. Barreme, 6 U.S. 170, where the US Supreme Court affirmed that the President is duty-bound to obey statutory instructions issued by the Congress along with United States v. Smith, 27 Fed. Cas. 1192 (C.C.D.N.Y.1806) where Justice Paterson wrote that “[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids”. Adler also cites the reference in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) to the “equilibrium established by our constitutional system” as an argument against unchecked executive discretion.

“In these last eight years,” Adler states, “we have seen presidential powers soar beyond the confines of the Constitution. We have understood that his presidency bears no resemblance to the Office created by the Framers… This is the time for us to demand a return to the constitutional presidency. If we don’t, we will have only ourselves to blame as we go marching into the next war as we witness even greater claims of presidential power.”

For more on the Constitution and the powers of the President, see The Constitution and the Termination of Treaties by David Adler, Call No. KF5055 .A94 1986 and Bush, the Detainees, and the Constitution: the Battle over Presidential Power in the War on Terror by Howard Ball, Call No. KF5060 .B35 2007 in the BLS library collection

An earlier post here reported the 2nd Circuit Court of Appeals’ ruling affirming the dismissal of the complaint which challenged the Atlantic Yards development project in downtown Brooklyn on the grounds that it violated the Public Use Clause of the Fifth Amendment. On June 23, the US Supreme Court refused to hear the case. Justice Alito was the only member of the Court who would have granted certiorari of the ruling’s affects on local property rights. According to an article in The Brooklyn Paper, local opposition to the Atlantic Yards project has now turned to the state courts focusing on the condemnation proceedings.

On August 1, 2008, those opponents filed a petition with the Appellate Division in New York seeking to prevent the condemnation of their property by the New York Empire State Development Corporation (ESDC). The Appellate Division has exclusive jurisdiction over the Eminent Domain Procedure Law. The nine property owners and tenants whose homes and businesses face condemnation to make way for the $4 billion project that includes the Barclays Center arena for the NBA’s Nets and 16 mixed-use buildings specify five claims in the petition:

1. the condemnation violates the public use clause in the New York State Constitution (the Second Circuit already held that it did not violate a similar provision in the federal constitution) asserting that the State’s claims of public benefit are a pretext to justify a private taking
2. the plaintiffs’ due process rights under the State Constitution were violated (here they allege that the public process was a sham and that this was a “back room deal” with former Governor Pataki, Mayor Bloomberg and Bruce Ratner, the developer of the Atlantic Yards project)
3. the Equal Protection clause of the State Constitution was violated (because they were singled out for unequal, adverse treatment, and because Ratner was selected to receive favorable treatment)
4. the State Constitutional requirement that the housing part of the project be restricted to persons of low income with a preference for persons who live or shall have lived in the area has not been met and
5. the condemnation violates the “public use, benefit or purpose” requirement contained in the State Eminent Domain Procedure Law

The main claim is that the condemnation is for luxury housing and violates Article 18, § 6 of the State Constitution regarding the low-income and current resident requirement. Article 18, § 6 states:

No loan, or subsidy shall be made by the state to aid any project unless such project is in conformity with a plan or undertaking for the clearance, replanning and reconstruction or rehabilitation of a sub-standard and unsanitary area or areas and for recreational and other facilities incidental or appurtenant thereto. The legislature may provide additional conditions to the making of such loans or subsidies consistent with the purposes of this article. The occupancy of any such project shall be restricted to persons of low income as defined by law and preference shall be given to persons who live or shall have lived in such area or areas.

Oral arguments are expected to take place in January 2009.

In the “The Paper Chase”, the TV series that ran from 1978 to 1986, the fictional curmudgeon and Contracts Professor Charles W. Kingsfield, Jr. famously said “You come in here with a skull full of mush and you leave thinking like a lawyer.” Law school does in fact change the way you read, the way you think, and the way you analyze; it’s designed to remake you into something much different than you were before. Here are some things to do to ease the grueling journey:

1. Get advice from successful upper class members.

One key to success is to learn from students who are already successful in the areas where you want to excel. All law students want to make good grades, since they, more than anything else, are rewarded upon graduation. Seek out students who are at the top of their class and find what worked for them, how they managed their time, and how they prepared for their finals. Find students who’ve had professors you are taking to learn what to expect and what the professor expects of you. If you want to learn litigation skills, look for a mentor on the national mock trial or moot court team. If you want to become an editor of a law review or a law journal or want to improve your writing skills, find someone who’s already on a journal to learn about what it’s like and get tips on effective time management.

2. How you do on the final is more important than how you answer a question in class.

Most 1Ls are terrified of the Socratic Method and it’s easy to be caught up in reading for class to make sure you can answer the question when a professor calls on you. But knowing the details of every case won’t get you the best grades. Instead, step back and see the big picture. Don’t panic if you get an answer wrong in class. Make sure you understand why you missed it. Focus on preparing for the final exam because that’s what really counts.

3. Don’t reinvent the wheel.

Every year, 1Ls start their outlines from scratch. Creating your own outlines is useful, especially when you first start studying the law. But the time you have is limited. Make the best use of your time by using existing outlines as a starting point, which you can then edit and make your own. Of course, don’t rely solely on someone else’s outline. Make sure you agree with their conclusions and summary of the law. When in doubt, ask a professor.

4. Get to know your professors.

Law schools pride themselves on low student to professor ratios so that professors have the opportunity to get to know their students. But, it’s up to you to take advantage of this opportunity. Take the time to meet with professors with questions during the semester, rather than waiting till the end of the semester. Some students never set foot in a professor’s office and do very well on their exams. Just because they haven’t been in the professor’s office doesn’t mean they haven’t spent the semester getting to know the professor. Seek out prior exams or model exams that the professor has made available, so you know what to expect on test day. The Registrar maintains Exams on File which you can access with your BLS username and password.

5. Get to know your law librarians.

Law librarians are a great resource. They know how to use online resources like Westlaw and Lexis, as well as print resources better than probably anyone else in the law school. They are also there to help you find what you are looking for. Law librarians are familiar with many databases and resources often overlooked by experienced researchers or lawyers. They can also help you form good searches, give you search tips and point to the best starting point for your topic.

6. Find time for yourself.

Law school will be the most challenging undertaking in your life. So maintain a healthy lifestyle with regular sleep patterns and exercise. It may be hard to fit these into your busy schedule but they’re more crucial to a balanced life for 1Ls.

7. Use technology wisely.

The smaller the laptop, the better. You law school books too big and heavy to lug a 17 inch laptop around every day. Back up your work or email yourself documents that you are working on at the end of each day. On the weekends, back your laptop up to external drives or to a thumb drive.

8. Master the law school exam.

Your entire grade for a law school class is often based on a single final exam. Master the law school exam process: read the paperback Getting to Maybe: How to Excel on Law School Exams (Call No. KF283 .F47 1999)and see http://www.leews.com/. Law school exams consist of a long fact pattern followed by a series of questions. There are often no right or wrong answers. You’re graded on spotting issues and analyzing potential outcomes. The prediction isn’t what you are graded on; it’s the analysis of the facts and law that leads to your prediction that’s graded. If you don’t correctly spot the issue, you lose the opportunity to get points for either the analysis. A very simple way to think of a law school answer is set forth by the IRAC Method: Issue, Rule of Law, Analysis, and Conclusion.

9. Join a study group.

Going over the material with another person or a small group of people will help you hash out concepts, and ensure a thorough overview of the subject. Study groups sessions should be secondary to extensive individual study, so as a group you can focus on practice questions, clarifying issues, and making sure you have hit all the main concepts.

10. Don’t underestimate the value of after-class review or overestimate the value of reading for class.

After-class review is as important, if not more important than reading for class. Reviewing after class ensures that you completely understand the material. It should be the third time you are covering the material, the first being when you read before class, and the second being when you went over it in class. After-class review also allows you the opportunity to take any questions you still have on a topic to your professor for clarification. After class review sessions are also the perfect time to review and make notes to your outline.

Good luck to all 1Ls as you start class here at BLS.