BLS Library Blog

On October 5, the first Monday in October 2009, the US Supreme Court is scheduled to begin its new term. To mark the occasion, the first of the Library Wednesday Workshop Lunch & Learn sessions at Brooklyn Law School, “The New Term of the U.S. Supreme Court and How to Research the Court”, will take place on Wednesday, September 30.

The ABA web site has a Preview of the Court cases for the upcoming 2009-2010 term with not only an alphabetical listing of the nearly 50 cases that the Court will review but also an argument date menu and links to the Question Presented in each case along with the Merit Briefs and Amicus Briefs. The Questions Presented in the cases scheduled for argument in October run a wide range of issues that when decided will significantly change the practice of criminal law, immigration law, copyright law, labor law, attorney-client privilege and practice regarding attorney’s fees.

One case worth watching is Alvarez v. Smith, a challenge to Illinois’ Drug Asset Forfeiture Procedure Act (DAFPA). The issue in Alvarez concerns the seizure of the petitioners’ property by police who suspected that the property had been involved in a drug crime. Three of the petitioners had their cars seized, three had cash taken. None were served with a warrant or charged with the crime. Under DAFPA, the State can delay for up to six months before an aggrieved property owner can obtain a preliminary hearing on warrantless seizures of less than $20,000.

Civil asset forfeiture is one of most potent weapons used by law enforcement in the war on drugs. It allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors’ offices, providing a strong incentive to seize as much property as often as possible.

At the federal level, in order to “provide a more just and uniform procedure for Federal civil forfeitures”, Congress in 2000 passed the Civil Asset Forfeiture Reform Act (CAFRA) which changed the government’s standard of proof to “a preponderance of the evidence,” prevented the use of hearsay, and provided for compensation for attorney’s fees for defendants who won in court. CAFRA reforms applied only to federal law, not to the states. llinois’ DAFPA law allows the state to use hearsay evidence and sets the state’s evidentiary burden at probable cause. Property owners who want to use the “innocent owner” defense are not permitted to use hearsay, and are held to a “preponderance of the evidence” standard. They are also required to post a bond on the seized property in order to get a hearing.

The 14th Amendment’s Due Process clause says that a State may not “deprive any person of life, liberty, or property, without due process of law.” How the US Supreme Court will apply the 14th Amendment to Illinois’ DAFPA provision is uncertain. A post written on the noted law blog, the Volokh Conspiracy, stated “The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence.”

On the subject of forfeiture, the BLS Library recently added to its collection Asset Forfeiture: Practice and Procedure in State and Federal Courts by Dee R. Edgeworth (Call #KF9747 .E34 2008) with chapters Forfeiture terminology – Property subject to forfeiture – Seizure of property for civil forfeiture – Initiation of civil forfeiture proceedings – Civil pre-trial motions – Civil discovery – Civil trial proceedings – Criminal forfeiture proceedings – Parallel proceedings –Disposition of forfeited property – Real property forfeitures – Constitutional protections – Ethical considerations.

During the summer, the librarians at Brooklyn Law School have been working hard to improve access to our research resources.  Many of the new tools at your disposal will be available when the new Brooklyn Law School web site rolls out later this fall.  However, one of our new modules  (which we call Sara 2.0) can be accessed now, off the library portal page, or directly at http://brooklaw.aquabrowser.com.

What does Sara 2.0 do that Classic Sara does not?

Sara 2.0 is a discovery platform to search the library catalog.  Although it has an advanced search feature to help you find particular items, its main function is to help you explore your library space by recommending searches to you, and refining your results in a right hand navigation pane.  For example, in the picture below you will see the search results for the keyword search:  Professional ethics

In New York to attend the UN General Assembly, Dominican Republic President Leonel Fernández spoke at Brooklyn Law School to discuss constitutional reform measures he is introducing in his country. Library Director Victoria Szymczak hosted President Fernandez and his wife, First Lady Margarita Cedeño de Fernández in the Moot Court Room where Dean Joan G. Wexler introduced the President to speak about how he is preparing the Caribbean nation to meet the challenges of the 21st century. Dean Wexler told the assembled guests about Fernández’ being born in Santo Domingo and having moved to the US to spend his childhood in Washington Heights. The Dean went on to explain that Fernández started his Law Studies in the Universidad Autonoma de Santo Domingo where he graduated at the top of his class and that he became active in the Dominican Liberation Party in 1973. She also spoke about his first presidential term from 1996 to 2000 after which he was unable to run for a second term, as the constitution did not allow it. After a change in the constitution, Fernández was sworn in for a second term in 2004 and was re-elected to another term in 2008.

President Fernández spoke about the independence movement in Latin America, which took place about 200 years ago in 1809 when most Latin American countries became free from Spanish rule. He noted that the DR declared its independence from Haiti in 1844. Citing a novel titled The Feast of the Goat by Peruvian writer Mario Vargas Llosa about dictator Rafael Trujillo, Fernández spoke about the military dictatorship from the 1930s until Trujillo’s assassination in 1961. He also spoke about the 1963 democratically elected government of Juan Bosch which ended with the 1965 US invasion which President Lyndon B. Johnson justified based on fears that the DR was turning into “a second Cuba”. Except for the period of authoritarian rule under Joaquin Balaguer until 1978, he said, the DR has moved toward representative democracy.

Fernández’ address about the DR’s new constitution, which has been ongoing for the past several months, stressed his view that it was a continuation of a liberal social democratic tradition that has been growing since the end of the dictatorships. He stated that the process included public consultation and that its content came from the bottom up rather than from the top down. In the Q&A after the President’s remarks, BLS students questioned key provisions of the new constitution, notably Article 30 of the constitution which would introduce the inviolability of life from “conception to death” and thus outlaw a woman’s choice of abortion even in cases of rape, incest or a threat to her life. Fernández stated that this clause was the result of the country’s large Roman Catholic population. Another questioner raised the issue of the new constitution’s impact on Haitians living in the DR and their ability to become Dominican citizens. Fernández said that the widely-held view that Dominicans exploit Haitian workers was unjustified as Haitians emigrate to the DR for a better life and are likely to have lower standards of living than native Dominicans just as Dominicans who emigrate to New York have compared to native New Yorkers. Fernández remarked that it appeared that BLS students were well informed on the the issues that he addressed.

A Jurist posting last week reports that the French National Assembly (the lower house) approved a new version of a controversial three strikes Internet piracy law on downloading copyrighted material. The law would grant discretion to a judge to suspend a user’s Internet services for up to one year. The determination to suspend access would be made on an infringer’s third violation, after previously receiving two warnings. In addition to internet disconnection, the law imposes fines of hundreds of thousands of euros and even jail for repeat offenders. Consumers could be sanctioned for negligence for any illegal downloading unauthorized users conduct through their Internet accounts.

France is not alone in seeking to disconnect file-sharers. Last month, an agency of the UK government, introduced proposals “for adding suspension of accounts into the list of measures that could be imposed” for those who persistently share copyrighted material online. IMPALA, the Independent Music Companies Association, in a Memorandum to its members counts Ireland, Norway, Spain, New Zealand, Japan and possibly the US as countries where internet service providers have or will cooperate in a three-strike disconnection system to combat online piracy.

On the international level, the Office of the US Trade Representative (USTR) and 37 other countries are negotiating the Anti-Counterfeiting Trade Agreement (ACTA), a new worldwide trade agreement that aims to reduce counterfeiting and copyright infringement. Despite Freedom of Information Act requests and a lawsuit from the Electronic Frontier Foundation, details about ACTA remain scant. The American Association of Law Libraries (AALL), along with others, has expressed concern about the “Internet provisions” of ACTA. In a July 14, 2009 letter, AALL wrote “Based on negotiating documents that have become public – but not made available by the U.S. government – we have good reason to believe that the ACTA negotiations could harm a significant portion of the economy as well as consumer interests.” An earlier September 18, 2008 memo from AALL expressed concerns that ACTA provisions may have significant implications for U.S. law including the “best practices” idea of encouraging government-led discussions on a “graduated response” three strikes approach to termination of repeat infringers.

There have been five rounds of negotiation on ACTA, most recently in France in December. A press statement from the fifth round in Morocco announced “that the next round will be hosted by the Republic of Korea in November 2009. With regard to the progress of negotiations, participants confirmed their intention to conclude the agreement as soon as possible in 2010.” 

On the subject of copyright infringement, the Law Librarian Blog links to RiP! A Remix Manifesto, Brett Gaylor’s 90 minute documentary that explores “issues of copyright in the information age, mashing up the media landscape of the 20th century and shattering the wall between users and producers.” The video is worth watching for those interested in the legal grey area of remixing existing works and the concept of copyleft as opposed to copyright. It will also appeal to those who like to listen to some outrageous music.

Constitution Day recognizes the ratification of the United States Constitution and is observed on September 17, the day the U.S. Constitutional Convention signed the Constitution in 1787. The Library of Congress’ Thomas website has a page on Constitution Day Resources that includes links to its American Memory Collections, Books and a Webcast called The Words We Live By: Your Annotated Guide to the Constitution by Linda R. Monk. 

Linda Holmes, Associate Librarian at the Brooklyn Law School Library has specific Constitution Day materials in the display case in the first floor elevator lobby area.

The BLS Library has recently added to its collection a new title Plain, Honest Men: The Making of the American Constitution by Richard Beeman (Call # KF4510 .B44 2009). Chapters include: The Constitutional Convention of 1787: a chronology — The crisis — The indispensable men of the Convention — “We the people” or “We the states”? Creating the American Congress — Imagining the American presidency — Compromise: large states, small states, slave states, and free states — Beyond the Connecticut Compromise — “The people are the King” — Sep 17: Day of decision — The People’s Constitution: “Federalists” seize the initiative — U. S. Constitution (Sep 17, 1787).

BLS Assistant Professor of Law Robin J. Effron has her an interesting blog post on the Civil Procedure & Federal Courts Blog about Tummino v. Hamburg (password required) available on Westlaw at 2009 WL 2762822. The opinion by Eastern District of New York Judge Edward R. Korman (BLS Class of 1966 and Vice Chairman of the Board at BLS) addresses the issue of standing in connection with a motion by three Christian lobbying groups to intervene in the case where Judge Korman issued an order in March 2009 directing the Food and Drug Administration to allow the marketing of the emergency contraceptive Plan B to 17-year-olds without a prescription. Judge Korman’s August 27 ruling refused to allow the three groups who oppose abortion to intervene to challenge the ruling, holding that Concerned Women for America, Christian Medical & Dental Associations and Christian Pharmacists Fellowship International failed to show they were harmed by his March 23 ruling and thus lacked standing to challenge his decision to allow over-the-counter sales of the pill.

Prof. Effron joined Brooklyn Law School’s faculty in 2008 and teaches several courses including Civil Procedure, Comparative Contract Law Seminar and International Business Transactions. Her scholarly publications are available on her Selected Works page.

Included in the BLS Library databases is the Center for Computer-Assisted Legal Instruction (CALI) which hosts computer-mediated legal instruction and lessons on a variety of legal topics. On the topic of civil procedure, standing and motions for intervention, see the CALI lesson called Joinder of Claims and Parties (password required). Obtain the authorization code from one of the BLS Law Librarians.