BLS Library Blog

Topical areas where courts have made conflicting decisions on legal issues can be fruitful writing topics. Below are some resources useful in researching recent Circuit splits.

BNA U.S. Law Week is a weekly publication that reports summaries of new decisions from state, federal, and administrative courts, and reports on new legislative and regulatory developments. Circuit splits are featured by topic, case name, and summary of the disputed issue. This publication can be accessed from the Library’s Quick Links menu while at the law school or while connected through the proxy server from an off-campus location.

From the front page of BNA U.S. Law Week, select the “Advanced Search” option below the search box.

• To find circuit splits, try searching  circuit* /s split* /s report* and restrict by date to see recent splits.
• To find recent cases dealing with Fourth Amendment issues, try searching the HEADINGS field for “fourth amendment” and restrict by date to the last year.

There are also two great blogs devoted to reporting on splits among federal circuit courts:

• Split Circuits, written by law professor A. Benjamin Spencer
• Circuit Splits, written by two Texas attorneys, a law professor, and a law review editor

For additional tips on developing and researching a seminar paper topic, check out the Research Guide by librarian Kathleen Darvil, or speak to any of the Reference Librarians.

A Wells Notice is a notification from the SEC or another regulator like FINRA or NASD sent to a respondent when the regulator intends to recommend that enforcement proceedings be commenced against it. The Wells Notice provides the respondent with the opportunity to present a case against the commencement of these proceedings. Providing a Wells Notice is not legally required but it usually the practice for regulators to do so. See Section 2.4 of the SEC Enforcement Manual for more on the Wells Process.

The use of Wells Notices dates to 1972, when SEC Chairman William J. Casey appointed a committee chaired by John Wells, commonly known as the Wells Committee, to examine and evaluate the SEC’s enforcement policies. Among the recommendations made by the Wells Committee in its Report of the Advisory Committee on Enforcement Policies and Practices was the following:

Except where the nature of the case precludes, a prospective defendant or respondent should be notified of the substance of the staff’s charges and probable recommendations in advance of the submission of the staff memorandum to the Commission recommending the commencement of an enforcement action and be accorded an opportunity to submit a written statement to the staff to be forwarded to the Commission together with the staff memorandum.

Recent newsworthy instances of the use of Wells Notices include Standard & Poors, the largest U.S. credit-rating firm, which acknowledged last September that it had received a Wells Notice from the SEC warning the firm it could face civil enforcement action for its ratings actions in a 2007 collateralized-debt obligation, a pool of subprime mortgages and other assets sold in slices to investors. S&P said it was cooperating with the SEC on the probe and that the Wells notice was “neither a formal allegation nor a finding of wrongdoing.” More recently, Puda Coal, a Chinese company facing regulatory scrutiny over its financial reporting, received a Wells Notice from the SEC that it intends to recommend administrative proceedings to suspend or revoke the registration of its securities for failure to comply with certain rules under the Securities Exchange Act of 1934. The SEC offered Puda an opportunity to make a Wells Submission no later than January 16, 2012 setting forth any reasons of law, policy or fact why it believes the administrative proceedings should not be brought.

On December 16, 2011, Rep. Darrel Issa (R-CA) Carolyn B. Maloney (D-NY) introduced H.R. 3699, the Research Works Act, similar to the Fair Copyright in Research Works Act from 2008. The legislation would end the current requirement that research paid for by taxpayers be publicly available for free. The main section of the RWA states: “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.” 

The impact of the RWA would be greatest on the National Institute of Health because of its Public Access Policy. Other agencies that share the results of research gained through public funds would also be inhibited from doing so in the future. The bill’s primary supporter is the Association of American Publishers which argues that charging for search results is justified as publishers add value and credibility to the research and that allowing free public access to the research results would deny publishers just compensation. Proponents of the bill claim that the peer review process assesses the research for validity and significance and adds value to justify charging for articles outlining the results.

If the bill becomes law, researchers can expect to pay $25 to $30 for access to a research paper. It will cut off a valuable source of information for schools, scientists, medical professionals and anyone interested in learning more about research. Opponents of the bill (which include the Alliance for Taxpayer Access, the American Library Association, and the American Association of Law Librarians) argue that these research results are already public property as taxpayer funds paid for the research. Those who would purchase the articles essentially pay for the research twice. These organizations stress the importance of access to publicly funded research and would like to continue its availability to those individuals whose funds made the research available in the first place. See their letter in opposition to H.R. 3699 to the House Committee on Oversight and Government Reform. Read more on at the Chronicle of Higher Educations article, Library Groups and Open-Access Advocates Speak Out Against Bill (Brooklyn Law School Library users can ask a reference libraran for the username and passwork). Open access articles on the subject incldue the NY Times op-ed Research Bought, Then Paid For and the WIRED article Congress Considers Paywalling Science You Already Paid For.

The same day the online blackout of SOPA and PIPA protested the broadening of copyright law as censorship, the US Supreme Court issued its 6-2 opinion in Golan v. Holder, a copyright case that may possibly have greater impact on scholars, librarians, and archivists. Plaintiffs, a group of conductors, educators, and others challenged the constitutionality of the Uruguay Round Agreements Act (URAA) of 1994 which removed millions of books, films, songs, and other creative works, mostly foreign, from the public domain to “restore” their copyrights in order to bring the US into compliance with international agreements on intellectual property Section 514 of the URAA restored copyrights in certain foreign works that were previously in the public domain in the US. Included among the works were Prokofiev’s “Peter and the Wolf,” the symphonies of Shostakovich, Picasso’s “Guernica,” the English films of Alfred Hitchcock, Fritz Lang’s Metropolis and the musical compositions of Stravinsky.

Plaintiffs, who relied on the availability of these artistic works in the public domain for their livelihoods, sued the federal government challenging the constitutionality of the URAA. The 10th Circuit Court of Appeals ruled that § 514 of the URAA was within Congress’s power under the Copyright Clause and that it did not violate the free speech and expression rights of the plaintiffs who had enjoyed freely using the foreign works that had been in the US public domain before restoration.

Justice Ginsburg writing for the majority (Justices Breyer and Alito dissenting) found that “neither the Copyright and Patent Clause nor the First Amendment … makes the public domain, in any and all cases, a territory that works may never exit.” The plaintiffs argued that removing works from the public domain and putting them back under private ownership violated the “limited Times” restriction of the Copyright Clause of the US Constitution (Art I, §8, Clause 8) which states: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” While prohibiting perpetual copyright, it does not specify how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Since 1790, Congress, has extended copyright term four times. The Court in Eldred v. Ashcroft, 537 US 186 (2003), rejected the argument that the Sonny Bono Copyright Term Extension Act passed in 1998 created a de facto “perpetual copyright on the installment plan”.

The court rejected the argument that restoration of copyright for works in the public domain is inconsistent with the purposes of the “limited Times” requirement, holding instead that “limited Times” simply means “not forever.” The term of restored copyright, the court noted, is not perpetual, and therefore Congress acted within its power. As for the possibility that Congress would enact more restorations to achieve perpetual copyright on the installment plan, the court held that the possibility of this “hypothetical legislative misbehavior” was not worth considering. The Court also rejected the plaintiff’s First Amendment argument, but Justice Ginsburg said “some restriction on expression is the inherent and intended effect of every grant of copyright.” But the Court said Congress’ move to re-copyright the works to comport with an international treaty was more important.

For more on the topic, see the Brooklyn Law School Library’s online edition of Copyright and the Public Domain by Stephen Fishman (2011) which brings clarity to the question of what is protected by copyright and what is not. In plain language, it explains how and why works of authorship enter the public domain. It provides detailed coverage of copyright requirements, the duration of copyright, copyright forfeiture and abandonment, the publication requirement, restoration of copyrights to foreign works under GATT, conducting copyright renewal searches, non-copyright restrictions that may protect works in the public domain, and many other important issues.

Rent control and rent stabilization in New York City has been a contentious issue since its inception in the 1920s and after when President Franklin D. Roosevelt signed into law 60 years the Emergency Price Control Act (EPCA) providing for a universal, nationwide price regulatory system. For a history of rent control in NY, see this link. Now a pro se petition for a writ of certiorari may give the Supreme Court an opportunity to reconsider its ruling in Yee v. City of Escondido (1992) that “government regulation of the rental relationship does not constitute a physical taking”. The case asks the Court to review the ruling in Harmon v. Markus where Second Circuit upheld the district court’s dismissal of the landlord’s complaint against the NYC Rent Guidelines Board claiming that the RSL is an unconstitutional taking of their property under the Takings Clause of the Fifth Amendment. The NY Times story A Landlord’s Uphill Fight to Ease Rent Restrictions provides the facts of the case.

An op-ed (subscription required – see a Brooklyn Law School reference librarian) in the Wall Street Journal by NYU Law Prof. Richard A. Epstein argues “Rent control and rent stabilization are inimical to the long-term health of New York City. Ordinary tenants paying market rents contribute their fair share to the public treasury. By contrast, rent-controlled tenants on lifetime leases who have a specially privileged legal status are a constant drain on the community, discouraging investment in residential rental real estate by posing a persistent if inchoate threat of subjecting future properties to rent control. Mr. Harmon is asking the Supreme Court to uphold the Constitution and make right a long-standing wrong. It should take up his invitation and do so.”

The US Supreme Court docket shows that a number of interested parties have file amicus briefs including the Rent Stabilization Association of New York, Inc., the Pacific Legal Foundation, and the Atlantic Legal Foundation and Center for Constitutional Jurisprudence. The City of New York has until February 3, 2012 to respond.

The BLS Library has in its New York collection Rent Control: Statutes, Documents, Decisions and Annotated Bibliography by Robert Allan Carter (Call #KFN5837.5.R3 C37) and Rent Control: Regulation and the Rental Housing Market edited by W. Dennis Keating (Call #KF6068.R3 K43 1998) which provides a thorough assessment of the evolution of rent regulation in North American cities. Contributors sketch rent control’s origins, legal status, economic impacts, political dynamics, and social meaning. Case studies of rent regulation in specific North American cities from New York and Washington, DC, to Berkeley and Toronto are also presented. This is an important primer for students, advocates, and practitioners of housing policy and provides essential insights on the intersection of government and markets.