Brooklyn Law Notes Fall 2022

Vice Dean Miriam Baer Keeps the Communication Lines Open

Yet the brimming schedule signifies that Brooklyn Law School is transitioning back toward a pre-pandemic era, in which Baer sees her mission as twofold: keeping the lines of communication open among students, faculty, and administrators, and being cognizant that although the pandemic is not over, the Law School needs an in-person experience that works for all.

“The most important mission now is to comfortably and safely bring us back into the building and back to in-person teaching, meetings, and events,” said Baer. “We all seem to learn more through our in-person interactions, and we enjoy our jobs more when we see and talk to each other.”

Baer has been gathering student feedback, positive and negative, to share with faculty. Likewise, she ensures students are aware of the latest wonderful faculty happenings. This year, she also hopes to see alumni and students take advantage of the rich programming at the Law School’s centers.

During her sabbatical, Baer was a visiting fellow at Harvard University’s Edmond J. Safra Center for Ethics, where she worked on her book, Myths and Misunderstandings of White-Collar Crime (Cambridge University Press), forthcoming in early 2023. She connected with scholars from different fields whose work touches on ethics, using their expertise to inform her scholarship on white-collar crime and its inherent ethical failures.

“What my book ultimately says is that we need to change our federal criminal statutes, which actually hide more than they convey,” Baer said. “They’re so broad in their creation—it’s not just that they cover a lot of conduct, but that they fail to distinguish variations of the same type of conduct, so we end up learning less about our enforcement and about the laws that are actually being violated than we could if we had clearer statutes and subdivided statutes.”

Some of the most blatant examples include fraud and obstruction of justice, Baer said. Changing the federal criminal code requires Congressional action, but, Baer said, criminal law reform is that rare agenda item with aisle-crossing appeal. “The only way to make reform possible in this area is to imagine it, discuss it, and promote it.”

Baer inherited the Centennial Professor of Law title and advice from her mentor and friend, 1901 Distinguished Research Professor of Law Roberta Karmel, now retired. “How do I make my students better off; how do I make the institution better off? When we tackle those questions as a group, recognizing the importance of collegiality and camaraderie, it all comes together,” she said.

Associate Dean Jocelyn Simonson to Promote Research and Scholarship

In her new role, Simonson is charged with developing and promoting the Law School’s scholarly community, including the work of its outstanding faculty, which was ranked 33rd nationwide in a recent study of scholarly impact. She will help develop student scholarship, including work on Brooklyn Law School’s four law journals, and will coordinate with the Law School’s nationally known centers and institutes.

Simonson’s own scholarship, which has been cited twice by the U.S. Supreme Court, explores ways in which the public participates in the criminal process and in the institutions of local governance that control policing and punishment. She is currently working on a book, Radical Acts of Justice: Shifting Power to the People, from Community Bail Funds to Courtwatching (The New Press), forthcoming in 2023.

But when prosecutorial misconduct is behind the convictions, these cases are also disturbing from a professional ethics perspective. Bringing such misconduct to light is the mission of Accountability NY, a project led by a group of six law professors, including Brooklyn Law School Professor Cynthia Godsoe.

The group has filed ethics complaints concerning almost 40 prosecutors whom appellate courts had found committed misconduct. Although the first complaints were filed with the bar’s Grievance Committee in charge of attorney discipline 18 months ago, no action against the prosecutors has been publicly acknowledged. The cases include a Brooklyn prosecutor who withheld key evidence at trial that could have exonerated the accused, a man who spent 24 years in prison, and a Queens case in which three men spent over two decades in prison after what a judge called false statements to the court at trial and withholding evidence.

Prosecutorial misconduct should be investigated and addressed by each judicial district’s Grievance Committee, and could result in public admonition, suspension, or disbarment for the prosecutors. Yet the fate of the complaints filed with those committees is unclear, Godsoe said. The city’s lawyers fought against Accountability NY’s efforts to publish the complaints, but in July, the U.S. District Court of the Southern District of New York ruled in favor of Accountability NY, based on First Amendment rights.

“Our project illustrates how reluctant the bar seems to police its own,” Godsoe said.

The issue is widespread. A recent National Registry of Exonerations study found that prosecutorial misconduct was at play in one-third of 2,400 exonerations. The Death Penalty Information Center found more than 550 U.S. cases that led to capital convictions being overturned.

“Prosecutors don’t have clients, and they’re supposed to act in the interest of justice,” Godsoe said. Instead, “the primary way [District Attorneys’ offices] measure success is conviction rates, so the incentive is there to win at any cost. But you’re cheating people out of their lives.”

She sees signs of hope, including progressive prosecutors willing to address misconduct, such as Eric Gonzalez in Brooklyn and Alvin Bragg in Manhattan, not to mention her students.

“They have no patience for this,” Godsoe said. “They only want to work at the [D.A.] offices where this doesn’t go on.”

Watch video of Godsoe and two panelists discussing wrongful convictions and prosecutorial misconduct.

No Sleep for Clinic Aiding Domestic Violence Survivors

Instead, she and her colleagues and students worked to expand the clinic’s Survivors Justice Project (SJP), an interdisciplinary collective launched in 2020 with a mission to help incarcerated people seek reduced sentences under the state’s 2019 Domestic Violence Survivors Justice Act (DVSJA), which allows courts to consider whether sexual, psychological, or physical abuse contributed to convictions. SJP is led by a team of formerly incarcerated women, all survivors of long-term incarceration and most domestic violence survivors. The clinic has worked with eight survivors released from prison, including three who received indeterminate sentences as teenagers. The goal is to have New York serve as a model for other jurisdictions.

“We’re trying to build best practices in the implementation of DVSJA, and the clinic is at the center of that,” said Mogulescu. To help corral statewide data that looks at the role of geography, race, and other factors, she has secured a generous $200,000 commitment over two years from four law firms: Cravath, Swaine & Moore; Davis Polk; Weil, Gotshal & Manges; and Paul, Weiss, Rifkind, Wharton & Garrison. Those funds allowed SJP to bring aboard new legal fellow Clarissa Gonzalez, who will lead SJP efforts to be a DVSJA clearinghouse for data collection and fielding inquiries from survivors in jail and prison.

But, at a Brooklyn Law School virtual event on Sept. 19, professors and thought-leader guests discussed potential legal paths to address a decision that all agreed was devastating to women’s rights. Associate Dean Karen Porter moderated the event, which was co-sponsored by the Center for Health, Science, and Public Policy and the Women’s Leadership Network.

Professor Susan Herman, president emeritus of the American Civil Liberties Union, said post-Dobbs battles will be fought on various fronts across a nation now divided into states where abortion remains legal and those where abortion restrictions snapped into place.

PROFESSOR STEVEN DEAN joined a panel of tax experts for a “Strengthening the IRS to Create a More Equitable Tax Code” webinar hosted by Prosperity Now on June 15. Experts at the webinar outlined how proper funding and a better-funded tax code can benefit the lowest-income families, especially families of color.

PROFESSOR HEIDI K. BROWN, author of the new book The Flourishing Lawyer, moderated a panel titled “Coaching Law Students for Healthy Performance” on July 5 at the Congress for the International Academy for Law and Mental Health in Lyon, France.

PROFESSOR FRANK PASQUALE discussed the challenges and advantages of artificial intelligence and how it is changing medical practice during a virtual Sydney Ideas, held July 25 by the University of Sydney.

New York Bar Associations—with pro bono support from PROFESSOR CYNTHIA GODSOE—counted a victory July 25 when a New York state judge ordered the state and New York City to pay assigned counsel for children and indigent adults at the same pay rate received by assigned counsel in federal court. It marks the first rate increase in 20 years.

ADJUNCT PROFESSOR CYRUS D. MEHTA, a renowned immigration law scholar, was named the new editor-in-chief for the American Immigration Lawyers Association Law Journal in July.

Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt (NYU Press, 2022)

Americans’ trust in public institutions is at near historic lows and “bureaucracy” and “big government” are pejorative terms. Araiza investigates the sources of this phenomenon and explains how we might rebuild trust in our public institutions. Using an interdisciplinary approach, with insights from history, political science, law, and public administration, Araiza explores our current bureaucratic malaise and presents a road map to finding our way out of it, toward a regime marked by effective, expert regulation that remains democratically accountable and politically legitimate (see Professor Araiza discussing his book at the Brooklyn Book festival).

The Flourishing Lawyer (ABA Book Publishing, 2022)

The Flourishing Lawyer offers an empathetic guide for members of the legal profession to cultivate their personal and professional well-being, identify and develop their individual strengths, and define success on their own terms. Drawing from lessons and research from the fields of psychology, health care, sports, and medicine, this book is an affirming guide to becoming a better contributor to the profession while living a flourishing life (see “Flourishing” in the Field of Law”).

New Scholarship Established in Honor of Becky McBride ’13

Becky passed away April 9, 2020, after a two-year battle with breast cancer, surrounded by her family and grieved by friends. She was 35.

Her parents, Robert and Randye McBride; her brother, Ben, and his wife, Glenny; and numerous friends and colleagues still marvel at her legacy. Born on New Year’s Day 1985 in New York City, Becky grew up in East Windsor, N.J., and attended American University, majoring in philosophy, and minoring in Spanish. After graduating in 2007, she moved to Argentina, where she volunteered at a nonprofit organization, became fluent in Spanish, and decided to focus on practicing law in defense of the underserved, which prompted her entering Brooklyn Law School.

As director of legal services at Atlas:DIY and as a staff attorney at Central American Legal Assistance (CALA), both in New York, native Spanish speakers knew her as Abogada (lawyer) Becky, and staff recall her as often clad in a favorite leather jacket. Her work reunited families, stopped deportations, and was directly responsible for hundreds of newly recognized and soon-to-be citizens in the U.S. That included undocumented minors, who she always referred to by name and treated as unique individuals, not cases.

Her colleagues remember Becky warmly. “She was an example of how to care, how to be responsible, how to laugh,” recalled CALA Director Ann Pilsbury.

The scholarship will be open to second- or third-year students and is based on financial need. Primary consideration will be given to students with a demonstrated interest in not-for-profit immigration law, with particular preference given to those wishing to serve marginalized communities, including refugees.

Brooklyn Law’s Associate Dean of Experiential Education Stacy Caplow stayed in touch and worked with Becky after she graduated. “I take pride in being one of her mentors who supported her dedication to immigration law,” Caplow said. “We who admired and cared about her will miss her tremendously.”

What does it mean to be a “flourishing lawyer”?
In studying applied positive psychology with the field’s founder, Martin E.P. Seligman, I read his book, titled Flourish. In my studies, I dove more deeply into the concept of flourishing, aspiring to apply it to the legal profession. Flourishing is not just feeling good, which psychologists call “hedonic well-being,” but includes “eudaimonia,” a Greek term that means “functioning well.” Flourishing isn’t just smiling all the time and having a good day. We all know that’s unrealistic. To function well, we set up cognitive, emotional, and physical systems to remind us that, when we do encounter stress or anxiety or fear, we remember that we’ve been through situations like that before and we are equipped with resources to tackle each problem. We learn to trust our systems and ride out the rise and fall of stress symptoms to get through inevitable rough times. Just as athletes and performers train in multiple dimensions before they step into the performance arena, we can do the same.