Saturday, December 31, 2011

Gay Man's Memorial for Dead Veteran Husband at Naval Academy as "As Don't Ask Don't Tell" Ends

The Chicago Sun-Times had a short article about the gay widower of a decorated navy veteran who approached the Naval Academy about setting his husband's ashes in the columbarium there. One of his husband's wishes had been to be cremated and have his ashes interred at his old school, where he had wonderful memories. So Mark Ketterson contacted the U.S. Naval Academy to inquire about the possibility, and the memorial coordinator asked his relationship to the deceased.

“They were always polite, but there was this moment of hesitation,” Ketterson recalled. “They said they’re going to need something in writing from a blood relative. They asked, ‘Are you listed on the death certificate?’ ‘Do you have a marriage license?’ ”
(The article is quoting Ketterson.) Fortunately, Ketterson was listed on the death certificate, and the couple had been married in Iowa when same-sex marriage became legal in that state. When the memorial coordinator received the death certificate and the marriage license, Ketterson said, "I was respected. From that moment on, I was next of kin. They were amazing.”

Ketterson's husband, John Fliszar, received the same standard memorial service and interment that all alumni of the academy receive. Ketterson was able to compose a memorial and publish it in the alumni magazine as well, which is also a standard option for families. The article says the notice created a bit of a stir, since it was clear that the couple was a same-sex union. But Ketterson has heard from a number of officers, including the organization USNA-Out, the organization for gay graduates of the naval academy. Again, the article quotes Ketterson:
“It’s been some months. I’m still doing mourning. As a gay man who grew up in a military family, getting communications from USNA, having heard from alumni who say, ‘You will always be one of us’ — that’s powerful, and healing.

“One of the e-mails said that I was a ‘trailblazer,’ I didn’t blaze any trail. I buried my husband.”
The article makes it clear, however, that the key to the way the Academy was able to deal with Mr. Ketterson was the marriage license. The author, Neil Steinberg, could not find a spokesperson to speak for the entire Navy on the topic. But one of the points he makes in the article is that without that marriage license to send to the memorial coordinator, this pleasant story does not seem to have been on the books. According to Mr. Ketterson's telling, it was a turning point when he was able to produce both the death certificate with his name listed and, especially, the marriage license. The article notes that "such practical concerns" were not on their minds when Ketterson and Fliszar married after dating for six years. Ketterson says he married "because I loved him and he asked me." But that act made so much difference later!

And the fact that they had the ability to marry made all the difference!

Thursday, December 22, 2011

Happy Holidays

I enjoyed this parody of Hallelujah Chorus from Handel's Messiah, and I hope readers of the OOTJ blog will too. It is not the traditional version, but it is certainly topical.

Happy Holidays!

Wednesday, December 21, 2011

Judge Throws Book at the Brooklyn Public Library

It's not every day that a judge paraphrases Mel Brooks in an opinion. But in Rodriguez v. Brooklyn Public Library, Brooklyn Supreme Court Justice Arthur Schack did just that. The decision, handed down on November 29, rejected the Library's claim that it was a New York City agency and entitled to the protections that such agencies enjoy. The suit grew out of a traffic accident in which David Rodriguez was injured; he was a passenger in a car hit by a Library van. Rodriguez's injuries required surgery, and he sued the Library about ten months after the accident. The Library sought to dismiss the lawsuit, claiming that as a municipal corporation it had to receive notice of the lawsuit within ninety days of the accident.

Justice Schack was scathing in his refusal to recognize the Library as a municipal corporation. He seems to have looked at material beyond what was included in the briefs, and cited the following factors: only 62% of the Library's funding comes from the city; it has private insurance; its employees aren't municipal workers. Furthermore, the Library is running a good-sized deficit (over $1,000,000) despite employing a professional fund raiser "who receives more in compensation than every New York State judge, including the Chief Judge." Paraphrasing Mel Brooks's famous line from History of the World: Part I, "It's good to be the king!", Justice Schack wrote, "It's good to be operating a deficit running non-profit, receiving 62% of its revenue from the financially challenged City of New York!" The Daily News's article about the lawsuit characterized the opinion as a "written tongue lashing," and the Brooklyn Daily Eagle's account highlighted Justice Schack's scrutiny of the Library's tax return from 2010, and praised his "witty" decision that included a history of the Library.

The photo accompanying this blog post shows the impressive main doors at the central branch of the Brooklyn Public Library at Grand Army Plaza.

Monday, December 12, 2011

Put the Big Rocks in First

My law school is arguing right now about changing from a 14 week semester to a 13 week one. That sounds like a tempest in a teapot. But it will bring a lot of collateral changes with it. Some will be very good, and some will be very challenging. One of the challenging items will be the need for all of us who teach to think hard about what we cover in our syllabus.

When you have been teaching a course that has 14 leisurely weeks to cover a subject, and then are asked to shave one week off that syllabus, you really should consider whether you are going to cover all the same subjects in all the same detail. It’s going to be a hard question, and I know some people are just going to ignore it and cram the same package into the smaller box.

I had a course design workshop last summer that was very enlightening. It was fun, as well. The first thing that really caught my attention was the image of a video that our moderator used (this is a different version, but equally illustrative)

I have read the parable before. You choose the “big rocks” and put them in the bucket first, and then fit the little pebbles or sand around them and it all fits. In most of our lives, we have all the little pebbles (which stand for the little niggling tasks and distractions in our lives) that fill up our days. We need to choose the big rocks – the important priorities that we really want to devote ourselves to, and prioritize those, and then fit the pebbles around those.

In this course design workshop, the same analogy means a slightly different thing. Our courses have big rocks and little pebbles, too. We have a few big ideas that are really important for our students to remember, we hope, in 5 years. Think about a few of your law or library classes, and try to remember one or two of the big ideas from them.... Can you come up with one? If so, that was a successful professor, who managed to communicate one of the core concepts to you – a “big rock” thought! This course design workshop urged us to really focus and pare down our syllabus until we had a handful of these, and then build the course around those.

It took a good deal of courage and a bit of interior weeping to let go of so much of my long-term syllabus. And it takes a GREAT deal of courage to create a syllabus that is really for my students and not at all for my colleagues. The first (MANY) times I created a syllabus for my courses, I really wrote them with the idea in the back of my mind: “What if one of my colleagues sees this? What will he or she think? What if I don't cover Justinian's Code? Will they think I'm ignorant?”

Instead, we should be creating syllabi focused entirely on student needs, and the shape of our semester. That really does call for courage and a lot of rethinking. What is it I really need a student to remember 5 or 10 years from now about this class? What will still be useful for them to know? In legal research, that’s a particularly tricky question, as so many of the publications and databases change more and more quickly. I have come to the conclusion that the most useful thing I can teach is how to evaluate materials and teach themselves. I still teach resources, but mostly in the context of how to evaluate them and how to learn about an unfamiliar resource.

Will you all think I'm ignorant? Gee... I'm trying not to care.

Image decorating this post is courtesy of

Sunday, December 11, 2011

Curator of Provenance

Wow! Librarians understand the "thrill of the chase," and the subtle skills needed to follow cold trails and murky indications through to the end. I think OOTJ readers will be as fascinated as I was to find out about a new job at Boston's Museum of Fine Arts, Curator of Provenance. The Boston Globe reports today in an Ideas story by Geoff Edgers, "A detective's work at the MFA" about Victoria Reed, the MFA's new curator of provenance. Apparently it is still a new position and a rare one among museums world-wide. Her job is to trace the origin, or provenance, of works of art, when there is question about it. Edgers illustrates the need very nicely with a story about a medallion the museum was considering purchasing, that turned out to have been looted from a museum in Germany during the Nazi era. Due to Ms. Reed's careful detective work, the MFA dropped its purchase plans and the dealer has promised to return the looted medallion to the original holding museum.
This concern for tracing provenance is actually a new one in the art museum world. I recently read a fascinating article in The Smithsonian magazine, by Ralph Frammolino, "The Goddess Goes Home." The article tells about a remarkable statue that came on the ancient art market in the 1980's, of unknown provenance. A seven-and-half foot tall young woman striding, apparently through a wind, dressed in ancient Greek woman's garb, the statue was broken in pieces. She also was remarkable in that the head and arms were of smooth marble while the body is rough, a different stone. The lack of provenance and the broken nature are two hallmarks of statuary that has been looted, according to the article. Many museums were leery of buying this statue, as remarkable and beautiful as it is. But the J.Paul Getty Museum in L.A. was not put off. The curator there, Marion True, purchased the statue in 1986, concluding that it represented Aphrodite, and displayed her prominently at the museum, despite pleas from others on the staff that it was a "hot potato."
Afterwards, True reformed and became an outspoken critic of museums' willingness to purchase materials of questionable provenance. She pushed through a new acquisitions policy at the Getty, that pulled them out of the black market. So she was completely shocked when she arrived in Rome in 1999, to return 3 looted items to the Italian government and was approached by a prosecutor during the signing ceremony to hand back the items, to ask her to return the statue. She said, if they could produce evidence that it was looted, she would consider it. But it was very difficult to get such evidence. At last, by focusing on the "bottom" of the art trade, the Italian art police turned up evidence: thousands of Polaroids of artifacts, freshly dug, broken and dirty propped on newspapers in a car trunk. Investigators painstakingly matched these photos of dirty, "before" images to the clean, museum items around the world, over years, identifying objects in Japan, Germany, Denmark, the MFA in Boston, and, more than anywhere else, the Getty! Most of the 40 artifacts they traced to the Getty were acquired during Marion True's tenure as curator.
In December 2004, based on the Polaroids and other evidence, [Italian prosecutor] Ferri won a conviction of the middleman, Giacomo Medici, for trafficking in illicit archaeological objects. It was the largest such conviction in Italian history, and it resulted in a ten-year prison sentence and $13.5 million fine. The sentence was later reduced to eight years, and the conviction is still under appeal. The following April, Ferri secured an indictment of True as a co-conspirator with Medici and another middleman. She was ordered to stand trial in Rome. Ferri’s evidence list against True included Getty objects depicted in the Polaroids, plus one that was not: the Venus of Morgantina. He had added it at the last minute, he said, hoping to “make a bang.” Marion True was the first curator in the United States to be accused by a foreign government of trafficking in illicit art. (In her written statement to Smithsonian, she described her indictment and trial as a “political travesty” and said, “I, not the institution, its director nor its president, was used by the Italian state as a highly visible target to create fear among American museums.”)
Well, the goddess did, eventually, "go home," and Marion True resigned from the Getty in 2005, and her case in Italy was eventually dismissed when the statute of limitations had run. But the American museums were certainly shaken by the images of True, trying to shield her face from the Italian paparazzi as she walked to and from the courthouse. Museums like the Metropolitan in NY, the MFA in Boston, and more have returned cherished ancient artifacts to the home countries in recent years. The Globe article notes other moves that were not, apparently driven by the fear engendered by the prosecution of Marion True, I am happy to say -- apparently the museums were coming to this conclusion on their own, as well. And we see, now, that there is a new job category, at least at the Museum of Fine Arts in Boston. According to the Globe article, when museums wanted to purchase items before, curators with expertise in the object's area would do their own research on the provenance. But time pressure, as this job was squeezed in between all the "main" jobs would mean that the research would be skimpy too often. Also, Reed has been given a budget line for resources that is protected with a donation from a patron who recognized the importance of the need.
Not everyone totally admires the MFA or Reed for the work they are doing. New York art lawyer Raymond Dowd criticizes the lack of transparency of the MFA and Reed in his blog, Copyright Litigation: Copyright law, fine art and the courts. The MFA was involved in a suit over claims to several pieces of art by holocaust survivors families, and moved to avoid discovery of Ms. Reed's investigation into provenance. It does not sound like the MFA'a finest moment, but it's difficult to tell without hearing the MFA's side. The Globe article quotes Reed's reply to the attack, (does not appear in the online version of the story)
"I know that I sound defensive and I'm trying, as I get older to sound less defensive," she said. "But I think there are a lot of loud voices out there that are inaccurate." The next day, reed asks that even that mild criticism be struck from the record. She doesn't want to come off too strong.
She does defend the MFA, which she says shares the results of all its Nazi-era provenance research on its website on gallery labels, and in gallery talkes. The only exception is when there is a legal matter that includes correspondence that is privileged.
The decoration is the mysterious goddess from the Smithsonian website

Friday, December 09, 2011

Going Paperless in the UK

From the United Kingdom comes this story about a plan "to give jurors a basic 89 pound Kindle in a bid to cut down on paperwork." The idea behind the plan is to facilitate jurors' review of evidence, with the ultimate goal of creating a "paperless" court system in the United Kingdom.

As of next April courtrooms across the UK are set to "go digital" and ditch traditional paper files and case bundles ...

The plan will be to use existing court computers and secure email systems to allow the prosectuion to present its case on a giant screen from a laptop which can be seen by the judge and jurors.

"By April 2012, the aim is to have all criminal justice system agencies transferring information digitally.

This is part of work across the criminal justice system to provide a simpler, swifter and more transparent service that meets the needs of victims and the public."

There will be a "mock trial" later in December to test prosecutors' use of "tablet devices"--Kindles aren't mentioned--to communicate with police and to retrieve evidence. When the plan goes live, jurors will not get fully loaded Kindles that would allow them to access the Internet; rather, they will be issued basic units.

This approach might meet the concerns of critics of the British Kindle initiative. The first concern is that although issued Kindles for trial-related purposes, jurors might try to download novels or surf the Internet. Limited or no access to the Internet through a basic Kindle would answer this objection.

The second concern smacks of ageism. Some critics have said "that some members of a jury may not be up to speed with the technology," and couldn't be expected to learn how to use a Kindle to review evidence. A lot of training will be required for jurors in the 60-to-69 age group, and this will have costs for the court system. (In England, people over the age of 70 do not serve on juries.) Frankly, the notion that once you celebrate your sixtieth birthday, you can't be expected to use technology is ridiculous. How hard is it to use a Kindle?

Wednesday, December 07, 2011

Justice Kagan's First Year

Hearing Dahlia Lithwick speak about the Supreme Court at last summer's AALL conference was the high point of the meeting for me. She was insightful, funny, erudite, and entertaining. In a recent issue of New York, Lithwick turns her attention to the newest Supreme Court justice--Elena Kagan--and offers a review of her first year on the bench. Entitled "Her Honor," the article describes the controversy over whether Justice Kagan (as well as Justice Clarence Thomas, whose wife is affiliated with a group that has openly opposed the Patient Protection and Affordable Care Act) should recuse herself from the challenge to the Act when it comes before the Court. The argument in favor of Justice Kagan's recusal is that when she served as Solicitor General, Justice Kagan "both strategized about and advised the administration on the law, and also expressed opinions on its consitutional merits, in violation of the recusal rules." For another view, also largely positive, of Justice Kagan's first year on the Court, see this article from the Washington Post.

Lithwick portrays Justice Kagan as anything but the "frothing ideologue" her opponents tried to make her out to be before her confirmation. Nor is she a "self-serving careerist and party hack." Justice Kagan is a good listener who pays careful attention during oral argument both to the attorneys and to her colleagues. She does ask questions (fewer than Justice Sonia Sotomayor, who asks a lot of questions), but tends to be deferential to the other justices, some of whom ask lengthy, tortuous questions. Lithwick also points out that Kagan has earned high marks for her writing:

Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It's as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. ... Kagan has repeatedly used the words imagine and you and writes directly to the reader, ... a technique that instantly "draws the audience into the process of decision-making."

But it also signals something about the way Justice Kagan thinks. She's interested in working through the argument--both sides fully credited--and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview.

Lithwick believes that ultimately Justice Kagan will not recuse herself from the health-care case any more than Justice Thomas will. "She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent."

Thursday, December 01, 2011

Turmoil at NYPL

As an occasional user of the venerable Research Division of the New York Public Library on 42nd Street in Manhattan, I have watched the ongoing restoration of the building with a great deal of interest. Recent work on the exterior of the iconic, century-old building has brightened the stones and lighting fixtures, and made the details of the Beaux Arts architecture come more clearly into view. More significant work is planned for the interior of the building, as is described in this article from The Nation.

The author, Scott Sherman, spoke to a number of NYPL staffers and administrators about the Central Library Plan (CLP) for the renovation, details of which are "closely guarded." Based on what they know, however, staffers "worry that the makeover would not only weaken one of the world's great libraries but mar the architectural integrity of the landmark building ... " What does the CLP call for? Seven levels of stacks which "hold 3 million books and tens of thousands of adjustable and fixed shelves" will be "demolished." The resulting space will be used for "construction of a state-of-the-art, computer-oriented library designed by British architect Norman Foster ... a "library within the library." Most of the dislocated books will be stored, either in a facility below the library or in Princeton, New Jersey, from both of which they will be retrievable. For the first time in history, patrons will be able to check books out of the Research Division collection. What will this "new high-tech circulating facility" cost? Estimates range from $250 million to $350 million, a staggering sum of money at any time, but particularly so during an economic downturn which has left many public institutions, including NYPL, in acute financial distress. The article explores a number of issues, including whether the money committed to the CLP would be better spent improving the eight-seven branch libraries, many of which have fallen into disrepair, and enhancing the collections of both the research and branch libraries, which have fallen victim to ongoing budget cuts.

I was also interested to read about the new president of NYPL, Anthony Marx, who took office in July after a successful tenure as president of Amherst College, where he became known for his efforts to increase the economic diversity of the student body. As the parent of an Amherst alumna, I met President Marx a few times at social events at the college. He impressed me as a thoughtful individual with a genuine passion for opening up access to elite institutions to a broader range of individuals. Given that background, his appointment to the presidency of NYPL makes sense. Library administrators have said that "the objective of the CLP ... is to democratize the Forty-second Street library, incorporate the latest digital technology and serve the public. ... [After the renovation,] "users will have access to almost 70 percent of the building," compared to only 32 percent of the space today.

I don't envy Marx his new position. He must deal with demoralized staff, many of whom disagree with the library's current plans; trustees, who are used to calling the shots; potential donors (much of his time is probably spent fundraising); unions representing the library staff; and members of the public, at least some of whom care a lot "about the shape of the entire New York Public Library in the years to come."