Category Archives: Legal History

Brooklyn Law School’s Scholarship & Special Collections

BrooklynWorks is the online repository of Brooklyn Law School, providing open access to scholarship produced by the law school and to other collections of law school materials. The repository is a service of the Brooklyn Law School Library. Current collections focus on faculty scholarship, the law school’s journals and library special collections.

Within the law Journals collection, you can browse or search issues of the Brooklyn Law Review, the Brooklyn Journal of International Law, the Journal of Law & Policy, and the Brooklyn Journal of Corporate, Financial, & Commercial Law. Within the faculty scholarship collection, you can browse or search Brooklyn Law School’s faculty publications going back to 2010.

Within the Special Collections, you can browse the papers of David Trager from the 1986-1989 New York City Charter Revision Commissions. Included in this historic collection are various drafts of the New York City Charter, meeting minutes and letters to the members of the commission. The digitized documents were selected from materials he donated to the Brooklyn Law School Archives. To access the entire collection, you can contact the reference desk (refdesk@brooklaw.edu) and make an appointment to visit the archives.

Miranda v. Arizona: Fifty Years Later

On June 13, 1966 the United States Supreme Court handed down the decision in Ernesto Miranda v. the State of Arizona, 384 U.S. 436 (1966). This case was actually consolidated with three others: Westover v. United States, Vignera v. State of New York and California v. Stewart, however, this case has become known to be simply Miranda v. Arizona.

Ernesto Miranda was arrested in Phoenix, Arizona in March 1963 based on circumstantial evidence linking him to the kidnapping and rape of an eighteen year old woman named Mary Adams ten days prior to his actual arrest. At the police station, after hours of interrogation, he signed a confession. During the interrogation Miranda was not told of his right to counsel. During the trial the prosecutor entered his confession as evidence; Miranda’s attorney objected, stating that the confession was not truly voluntary and should be excluded. This objection was overruled and Miranda was convicted of rape and kidnapping at trial. The Arizona Supreme Court affirmed the trial court’s decision.

Miranda’s case and three other similar cases were appealed to the United States Supreme Court, with the Court handing down their decision fifty years ago this month. The Miranda case has become famous because it establishes a defendant’s right to counsel and of the right against self-incrimination. Judge Earl Warren wrote for the majority, in the 5-4 decision, that these rights were guaranteed by the Fifth and Sixth Amendments to the Constitution.

After the Supreme Court’s decision, the state of Arizona retried Miranda without the confession, but he was convicted on the strength of a witness and sentenced to 20 to 30 years in prison. He served eleven years and died in 1976, after being stabbed in a bar fight.

“Miranda Rights” have come to be known by the public through television shows and movies as the “right to remain silent” and “anything said can and will be used against in a court of law.” Hundreds of law review articles have been written about this case and a defendant’s “Miranda Rights.” The library also has a number of books about the Miranda case, including the titles listed below:

Miranda: the Story of America’s Right to Remain Silent by Gary Stuart (2004).

The Miranda Debate: Law, Justice, and Policing by Richard Leo (1998).

The Miranda Ruling: Its, Past, Present, and Future by Lawrence Wrightsman (2010).

Miranda Revisited by Frank Schmalleger (2001).

Court Ruling in Touro Synagogue Dispute

This week the NY Times published an intriguing article on the resolution of a four year legal battle over ownership of personal property, silver Torah ornaments called rimonim, used in worship services in the nation’s oldest existing synagogue, Touro Synagogue in Newport, RI. Judge John J. McConnell, Jr of the US District Court for the District of Rhode Island issued a 106 page opinion in favor of Congregation Jeshuat Israel, worshippers at the 252-year-old Touro Synagogue in Newport who have been battling Shearith Israel in New York City for control of the temple and the right to sell a pair of historic ceremonial ornaments worth millions of dollars. The suite was originally filed in Rhode Island Superior Court, Newport County, in November 2012 and later removed to federal court. Judge McConnell’s opinion begins;

Bricks and mortar of a temple, and silver and gold of religious ornaments, may appear to be at the center of the dispute between the two parties in this case, but such a conclusion would be myopic. The central issue here is the legacy of some of the earliest Jewish settlers in North America, who desired to make Newport a permanent haven for public Jewish worship. Fidelity to their purpose guides the Court in resolving the matters now before it.

torah bells Touro Synagogue was established in 1763. During and after the Revolutionary War, most of the Newport’s Jewish residents moved away, many of them to New York. By the 1820s, no Jews were left in Newport, and Congregation Shearith Israel became Touro’s trustee. The two congregations began to feud when the Touro congregation tried in 2012 to sell the bells made by a noted 18th-century silversmith, Myer Myers to the Museum of Fine Arts in Boston for $7.4 million to improve the synagogue’s fiscal health. The New York congregation protested and Congregation Jeshuat Israel filed the lawsuit. Since, the museum withdrew the offer leaving the dispute to be decided by the federal court.

Touro Synagogue has become a national historic site drawing visitors from all over the world every year. Its most famous visitor was the nation’s first president George Washington who in 1790, stopped at Touro. After his visit he sent the congregants a letter saying the government of the United States “gives to bigotry no sanction, to persecution no assistance.” It is considered an important pledge of the new nation’s commitment to religious liberty. A search of Brooklyn Law School Library’s ProQuest Congressional database, available to members of the BLS community, will lead to 107 H. Con. Res. 62 dated July 17, 2001. The title of the resolution is “Expressing the Sense of Congress That the George Washington Letter to Touro Synagogue in Newport, Rhode Island, Which Is on Display at the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, Is One of the Most Significant Early Statements Buttressing the Nascent American Constitutional Guarantee of Religious Freedom”.

Chief Justice Earl Warren Biography

Today marks 125 years since the birth of Earl Warren, the 14th Chief Justice of the US Supreme Court, in Los Angeles, California. Warren’s tenure on the Court was from 1953 when President Dwight D. Eisenhower nominated him until his retirement in 1969. Earl Warren had enormous impact on the political and legal landscape of twentieth century America. In his long public service, Warren pursued a Progressive vision of ethical and effective government that brought moral integrity to the nation’s public policies, especially in the fields of racial relations, criminal justice, and freedom of marital association. Warren’s path-breaking approach to legal writing and his management of the responsibilities of the Office of Chief Justice encouraged public understanding of and support for the work of the Supreme Court.

A graduate of the University of California at Berkeley, he was elected district attorney of Alameda County in 1925 and continued to be reelected through 1938, when he was elected Attorney General of California. In 1942, Warren ran successfully for Governor of California as a Republican and was reelected in 1946 and 1950. He ran for Vice President of the United States in 1948 on the Republican ticket with Thomas Dewey, who lost to Harry Truman, the Democratic incumbent.

The Warren Court issued a host of notable decisions including decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that states are bound by the decisions of the Supreme Court and cannot ignore them (Cooper v. Aaron); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); the scope of the doctrine of incorporation in state criminal matters (Mapp v. Ohio, Miranda v. Arizona) was dramatically increased; reading an equal protection clause into the Fifth Amendment (Bolling v. Sharpe); holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Reynolds v. Sims); and holding that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses (Gideon v. Wainwright).

Warren was Warren Chair of the Warren Commission on the Assassination of President Kennedy. Serious lapses in judgment and uncritical deference to authority regarding national security issues in the report have clouded his legacy. The Brooklyn Law School Library has in its collection Earl Warren and the Struggle for Justice by Paul Moke (Call # KF8745.W3 M65 2015), a highly readable biography that offers an updated and balanced appraisal of Warren’s leading social justice decisions and a liberal critique of his failings that provides new insights into Warren, the man, the jurist, and the leader.

50 Years Ago, BLS Alum Helps Overturn Poll Tax

Joseph A. Jordan, was born in Norfolk Virginia and was a Brooklyn Law School graduate. He was a veteran, paralyzed from the waist down during World War II and confined to a wheelchair.

As an attorney, Jordan and his firm, Jordan, Dawley & Holt, fought civil rights cases across the South during the 1960’s. One such case made constitutional history,

In November 1963 Jordan filed suit on behalf of Mrs. Evelyn Thomas Butts to have the state’s poll tax declared unconstitutional. The poll tax was a tax levied on individuals as a prerequisite for voting. Although levied on all voters regardless of race, the tax effectively disenfranchised the poor, including many African-Americans. The tax was outlawed nationally in January 1964 by ratification of the 24th amendment, but it only addressed federal elections and remained silent on state and local applicability.

Jordan’s suit was defeated nine times by local and state courts before finally working its way up to the U.S. Supreme Court. In March 1966 the case became part of the landmark decision, Harper v. Virginia State Board of Elections. Only six years out of law school, Jordan argued before the U.S. Supreme Court that Virginia’s poll tax should be struck down. The court agreed and ruled it unconstitutional under the equal protection clause of the 14th Amendment.

Joseph A. Jordan went on to become the first black elected to the Norfolk City Council since 1889. He served three terms on the council, including two years as vice mayor. In 1977, he was appointed to Norfolk’s General District Court and retired in 1986.

First Woman Attorney before US Supreme Court

A Presidential Proclamation for Women’s History Month, 2016 states that “we remember the trailblazers of the past, including the women who are not recorded in our history books, and we honor their legacies by carrying forward the valuable lessons learned from the powerful.”

To commemorate Women’s History Month, Brooklyn Law School Associate Librarian Linda Holmes has added some interesting titles in the display case on the first of the library opposite the elevator, including Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers by Jill Norgren (Call # KF367 .N67 2013). The book recounts the life stories of a small group of nineteenth century women who were among the first female attorneys in the United States. Beginning in the late 1860s, these pioneers, motivated by a love of learning, pursued the radical ambition of entering the then all-male profession of law. They desired recognition as professionals and the ability to earn a good living. One prominent early woman attorney was Belva Lockwood, born in New York State in the Niagara County town of Royalton on October 24, 1830. In 1879, a bill was passed in both houses of Congress and signed by President Rutherford B. Hayes allowing Lockwood to become the first woman to practice before the Supreme Court of the United States. On March 3, 1879, she became the first woman admitted to practice before the United States Supreme Court. One of her first actions was to nominate a black Southern colleague for admissions to the court.

In 1884, Lockwood was nominated for president of the United States by the National Equal Rights Party along with Harriet Stow as the vice presidential candidate. Running against James G. Blaine (Republican) and Grover Cleveland (Democrat) at a time when women were not allowed to vote, she received 4,194 votes. She ran for president again in 1888. Lockwood’s professional life focused on women’s rights and she helped women gain equal property rights and equal guardianship of children. She served as president of the Women’s National Press Association, commissioner of the International Peace Bureau in Berne, president of the White House chapter of the American Woman’s League, a senator for the District of Columbia Federal Women’s Republic, chairman of the committee on industrial police for the National Council for Women, and president of the National Arbitration Society of the District of Columbia. She died on May 19, 1917. In 1983 she was inducted into the National Women’s Hall of Fame and on June 18, 1986, the United States Postal Service issued a memorial stamp. For more on Lockwood, see the entry at the New York State Library at this link.

Presidents’ Day Library Hours

The Library will be open on Monday, February 15, 2016 from 9:00 am – 10:00 pm.

Presidents’ Day is an American holiday celebrated on the third Monday in February. Originally established in 1885 in recognition of President George Washington, it is still officially called “Washington’s Birthday” by the federal government. Traditionally celebrated on February 22—Washington’s actual day of birth—the holiday became popularly known as Presidents’ Day after it was moved as part of 1971’s Uniform Monday Holiday Act, an attempt to create more three-day weekends for the nation’s workers.

Most people associate Presidents’ Day with George Washington and Abraham Lincoln, since Lincoln’s birthday is in February also (February 12).

The Library has several books on both of these presidents. Check out the titles below if you wish to learn more about these two presidents.

Freeman, Douglas Southall, George Washington, a biography (7 vol. set)

Marshall, John et al, The Life of George Washington (1838) Online Library of Liberty

Thomas, Benjamin Platt, Abraham Lincoln: a biography

Hubbard, Charles M., Lincoln, the law and presidential leadership (E-book)

Watergate Revisited

The 43rd anniversary of the January 30, 1973 convictions of former Nixon aides G. Gordon Liddy and James W. McCord Jr. for conspiracy, burglary and wiretapping in connection with the break-in at the Watergate hotel brings to mind the turbulent years leading to the only presidential resignation in US history. The conviction was later upheld in United States v. Liddy, 509 F. 2d 428 (D.C.Cir. 1974).

The BLS Library has an extensive collection of material related to the Watergate scandal. One item was written by a noted alumnus of Brooklyn Law School, the late Leonard Garment (Class of 1949) who later became a member of the BLS Board of Trustees and an Adjunct Professor of Law. Garment (1924 – 2013) was an attorney who served Presidents Richard Nixon and Gerald Ford in various positions from 1969 to 1976, including Counselor to the President, acting Special Counsel to Nixon for the last two years of his presidency, and U.S. Ambassador to the Third Committee at the United Nations. Born in Brooklyn, he graduated Brooklyn Law School and joined the law firm of Mudge, Stern, Baldwin, and Todd (later called Nixon, Mudge, Rose, Guthrie & Alexander). There, Garment met Nixon and then worked on his 1968 presidential campaign, later becoming part of Nixon’s White House staff as special consultant to the president. He advised the president and worked on various special projects, particularly on civil and human rights, Indian affairs, and the arts.

His 418 page book Crazy Rhythm: From Brooklyn and Jazz to Nixon’s White House, Watergate, and Beyond (Call No. E856 .G38 1997) is a fascinating autobiography of a Washington/Wall Street insider who thrived despite hard blows dealt him on more than one occasion. Garment tells how he left home early to pursue a career as a clarinet/saxophone player in jazz bands. After serving in WW II, he earned his law degree and soon became a close friend of the former vice president. An important member of the Nixon team, Garment became an all-purpose troubleshooter for the president. The tough-talking administration’s informal envoy to both US Jewry and Israel, Garment (who describes his ex-boss as operationally progressive but rhetorically retrogressive on social issues) also worked on civil-rights programs. He was untainted by Watergate, but his comments on the scandal are marked with perception and compassion. He eventually returned to New York City to serve as Daniel Patrick Moynihan’s special assistant for human rights during his stint as US ambassador to the UN, and then resumed the practice of law. The book is an engaging recollection of a free-spirited advocate who learned from his experiences close to the seats of power.

The New York Court of Appeals: Women at the Top

Janet DiFiore

On Thursday, January 21st, 2016, Janet DiFiore, former Westchester County District Attorney, was confirmed by the New York State Senate as the second female Chief Judge for the New York Court of Appeals, the highest court in New York State. The chief judge of the Court of Appeals is also head of the New York State Court system. Ms. DiFiore was nominated for this position by Judge Andrew Cuomo in December 2015.

Judge DiFiore was originally elected as Westchester County District Attorney in 2005 and then re-elected in 2009 and 2013. She has been a strong advocate for those who are affected by both child and elder abuse, forming teams within her office to deal with these issues.

She has been a strong advocate of reviewing what could be possible wrongful convictions, and her office was able to overturn the conviction, based on a new DNA analysis of crime scene evidence, in the case of Jeffrey Deskovic, who had been wrongly convicted of the rape and murder of a high school classmate.

Ms. DiFiore led the effort to establish the Westchester Intelligence Center, where Westchester County’s many local police departments, county police, state police and other state, regional and federal law enforcement agencies share information.

Prior to becoming Westchester County District Attorney she was a Supreme Court Justice from 2003-2005 and a Westchester County Court Judge from 1998-2002.

Judith Kaye

On January 7, 2016, Judge Judith Kaye, the first female Chief Judge for the New York Court of Appeals died after a courageous bout with cancer.

Judge Kaye was initially nominated to the position of associate judge by Governor Mario Cuomo in 1983 and she served in that position until 1993 when Chief Judge Sol Wachtler resigned and Cuomo appointed Judith Kaye as Chief Judge. She served in that position until December 31, 2008, when she reached the mandatory retirement age of seventy. She was not only the first female chief judge of the state of New York, but also the longest-serving chief judge.

During her many years on the court she worked hard to address problems on many fronts, but one of her primary concerns was improvement in the New York State jury system and she worked to change what she saw as problems in the system. She was able to end automatic exemptions for certain groups so that more people would be available to serve and she also recommended the expansion of juror source lists to include unemployment and other lists that were not previously used. She also had brochures and pamphlets developed for potential jurors so that they could understand the juror selection process and the work of a jury. She also sought to improve courthouse facilities so that jurors would at least have a pleasant place to “serve their time.”

Judge Kaye led in the development of problem-solving courts that seek to address the underlying problems that brought people into the court system. There are now courts that deal specifically with with drug, mental health and sex abuse issues as examples.

Judge Kaye received many honors and awards during her lifetime, as well as many honorary degrees. At Brooklyn Law School’s 93rd commencement exercise on June 14, 1994, Judge Kaye was awarded an honorary degree and gave the commencement address. At the end of her remarks, I’ll always remember her telling the graduates that she wished them “the same good luck and good sense in the future” as had gotten them to this day. Spoken, I thought, like a wise judge, woman and mother.

The library has several books in its collection on the New York Court of Appeals, including:

The Judges of the New York Court of Appeals: A Biographical History

The History of the New York Court of Appeals

The Powers of the New York Court of Appeals

Alcohol Prohibition and Repeal

Eighty-two years ago, on December 5, 1933, Amendment XXI to the US Constitution was ratified, repealing Amendment XVIII which had mandated nationwide Prohibition on alcohol on January 17, 1920. The Twenty-First Amendment is the only one of the 27 amendments of the U.S. Constitution to repeal a prior amendment. It is also unique as having been ratified by state ratifying conventions rather than by state legislatures.

The story of National Prohibition of alcohol and its ultimate repeal seems an historical oddity with little meaning for 21st Century life. Yet only recently in November 2012, voters in Colorado and Washington voted to legalize the production and sale of cannabis for social use, a first not only in the United States but also the world. Medical cannabis is now legal in twenty states and Washington, D.C., and many Americans use it in place of conventional pharmaceuticals. Nevertheless the federal government continues to raid and arrest people: 49.5 percent of all drug-related arrests involve the sale, manufacture, or possession of cannabis.

The story of alcohol prohibition under the Volstead Act is worth reviewing. Much of it is told in the Brooklyn Law Library’s copy of Amendments XVIII and XXI: Prohibition and Repeal by Sylvia Engdahl (Call # KF3919.A844 2009). Its 160 pages discuss the social and cultural forces that lead to Prohibition, the unintended consequences of the Eighteenth Amendment, the passage of the Twenty-first Amendment, and connections to the War on Drugs. National Prohibition was viewed by millions of Americans as the solution to the nation’s poverty, crime, violence, and other ills and they eagerly embraced it. After its adoption in 1920, Evangelist Billy Sunday staged a mock funeral for alcoholic beverages and then extolled on the benefits of prohibition. “The rein of tears is over,” he asserted. “The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs.” With the ban on alcohol which was seen as the cause of most, if not all, crime, some communities sold their jails.

It soon became clear that Prohibition not only failed in its promises but actually created other serious and disturbing social problems leading to an increasing disillusionment by millions of Americans. Journalist H. L. Mencken wrote in 1925 that “Five years of prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.”

It was nine prominent New York lawyers, organized as the Voluntary Committee of Lawyers and chaired by eminent Park Avenue lawyer and Harvard Law School graduate Joseph H. Choate, Jr., who helped bring about Prohibition’s repeal. In 1927, the lawyers formed the VCL declaring as their purpose “to preserve the spirit of the Constitution of the United States [by] bringing about the repeal of the so-called Volstead Act and the Eighteenth Amendment.” With this modest platform they undertook first to draft and promote repeal resolutions for local and state bar associations. Their success culminated with the American Bar Association calling for repeal in 1928, after scores of city and state bar associations in all regions of the country had spoken unambiguously, in words and ideas cultivated, shaped, and sharpened by the VCL. For more on this remarkable story, see The VCL: Architects of Repeal by Richard M. Evans.

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