Christmas Break

I won't be posting anything during the Christmas break. I'll be posting again during the second week of January when classes resume.

Gun Rights Go Before the Court

Cass Sunstein, one of America's preeminent legal scholars, had a great editorial piece in last Sunday's Boston Globe concerning what could be the most important Second Amendment case in the country's history. The Second Amendment, for those not familiar with the American Constitution, contains a provision that may or may not provide an unlimited right to own guns in America. Many Europeans are fascinated by the American "gun culture," but few have stopped to ask why owning a gun in America is so easy. The quick answer is the U.S. Constitution talks about gun ownership. Soon the U.S. Supreme Court will define, for the first time in many, many decades, what exactly the Constitution says concerning gun ownership. Prof. Sunstein's article is a must read if you want a basic understanding of what's at issue before the Court concerning this gun rights case.

The Limits of Peremptory Challenges

Students on common law learn early on that one of the more interesting features of the common law legal system is the use of juries. How juries are selected varies greatly from one common law country to another, and arguably the American system of jury selection is the most confusing. In the U.S., the parties themselves have considerable control over the make-up of a jury through the use of something called peremptory challenges. Basically, such challenges allow lawyers to remove potential jurors for any reason . . . except for the wrong reason. So what is a wrong reason? Well, removing someone based solely upon their race is one, according the U.S. Supreme Court in the 1986 case of Kentucky v. Batson. This week the U.S. Supreme Court considered whether a prosecutor improperly excluded all black potential jurors from serving on a jury in a murder case because of their race. The reach of the Batson case has never really been totally clear, and now the Court appears to be ready to provide further guidance. The Christian Science Monitor has a nice summary of the case before the Court and how it could impact jury selection in the U.S.. It's worth a read.

The Secret Circuit

As students in Common Law Legal System recently learned, the United States Court of Appeals is divided into 13 circuits. Eleven of the courts are divided regionally, leaving two court that we did not really discuss in class. The U.S. Court of Appeals for the Federal Circuit is one of these two courts, and definitely the one that even American-educated lawyers may not fully understand. The San Francisco Chronicle recently ran a review of the book The Secret Circuit, which does a nice job of quickly summarizing the book's main premise: what exactly does this court do? If you are interested in patent law and want to understand the U.S. Court of Appeals more fully, you may want to give this book review a quick read over.

Using English Punctuation Correctly

Another gem from wikiHow, this time a quick refresher on using English punctuation properly. Knowing when to use a period (or as the British say "full stop") or question mark is easy. But how about using a semi-colon, colon, or dash? Or the dreaded and often overused comma? This short refresher should help you with some common usage problems; so common that most native speakers could use a refresher or two every-so-often.

The Jury System in Japan

Japan is one of those mixed systems that uses a bit of common law, although it is modeled after the European civil system. Its criminal justice system is undergoing big changes that seek to introduce something that is uniquely common law: juries. Hailed as the "most significant change in its criminal justice system since the postwar American occupation," Japan will begin using juries in criminal trials sometime in 2009. But here's the catch. Traditionally, the Japanese are reluctant to express opinions in public, to argue with one another or to question authority. In short, many Japanese are dreading the idea of serving on a jury. The International Herald Tribune has more on this interesting experiment.

Press Freedom Revisited

A few weeks ago, I posted a piece about press freedom in Germany and the rest of Europe. Obviously, press freedom is a universal issue that impacts every country in some manner or another. In the U.S., there has been an ongoing discussion about the limits of press freedom. Americans were recently reminded of this debate when a video blogger was put in prison for refusing to turn over video he used for a story he posted on his blog. This was on the heals of the case of Judith Miller, a New York Times reporter who was jailed for failing to reveal her source for a story a series of stories she wrote for the Times. In light of these recent high profile cases, academics in America are calling for the Courts to revisit the U.S. Supreme Court's decision in Branzburg v. Hayes, holding that reporters cannot use the First Amendment's freedom of press right to refuse to cooperate with a criminal investigation.

Court TV

Jurists in both America and Great Britain are struggling with whether to allow television cameras into its highest courts. In the U.S., each state has dealt with this question differently; some letting camera into their courtrooms others not. But the federal courts still are a bit camera shy. Questions such as fairness to the parties and whether allowing cameras in will turn the court process into a circus are part of this often heated debate. In Britain, where the court system is undergoing enormous changes, especially at the very highest level with the creation of a new Supreme Court, the question is whether viewers should be allowed to watch Supreme Court proceedings on TV. Obviously, these proceedings are open to the public, i.e. one can go to the courtroom and watch it. Furthermore, other political proceedings are already televised in both Britain and the United States. But some judges aren't buying it. Recently, U.S. Supreme Court Chief Justice John Roberts expressed concern that the camera's in the courtroom would undermine the workings of the Court. However, in Britain it appears that many top judges have no trouble with having their work televised.

Then v. Than

Knowing when to use "then" or "than" isn't one of the recurring problems I see in students' writing. Nevertheless, it's always helpful to receive a little refresher and the WikiHow How-to-Manual has a short little piece that may be of assistance.

Policing Judges

As students of Common Law Legal System in Münster and Institutionen von Staat und Gesellschaft in Osnabrück learn, judges in common law countries, especially in the United States and England, are quite powerful. Many are appointed for life terms (in England, a life term means until the judge turns 70 years-old) and few ever face the threat of discipline, even for the most outrageous of acts. Every so often, however, one comes across a story about a judge who has gone too far. One such story surfaced this past week in Virginia, where a state court judge was removed from the bench for extreme behavior. In this particular case the judge had done things like decide a child custody case by flipping a coin (Münze werfen) and ask a female to take off her pants in court. It's rare that judges get disciplined. So rare that when they do, it's newsworthy.

Judges for Sale

Many states in America select their judges through an open election process. Thus, judges run for the post of judge just as any other politician runs for office. The upside? Judges become accountable to voters. The downside, and there are many? Judges, like other politicians in America, become reliant on campaign contributions. There are two interesting pieces in yesterday's USA Today highlighting the importance of money in the process of electing judges. One piece, written by someone in support of trial lawyers giving campaign contributions to judges makes the argument that if big business interests are giving money to judges, trial lawyers have no choice but to match those contributions in the hope of being able to equally influence judges. A sad commentary on this method of choosing judges, really. The other piece, I think, nicely points out the flaws of this system. Both pieces provide a nice understanding of the problems with electing judges in America.

Wallach: Waterboarding Used to Be a Crime

Students in Münster have the privilege of selecting from a wide range of elective courses during their final two semesters of the FFA. One class offered every winter semester is The Law of War, taught by U.S. Federal Judge Evan Wallach. I've sat in on this class before and I can tell you that it is both timely and fascinating. As a federal judge, Judge Wallach likely feels somewhat constrained as to what he can say about the current "war on terror" being conducted by the Bush Administration. That's what makes his opinion piece that appeared in yesterday's Washington Post extraordinary. As I wrote last week, the issue of whether an interrogation technique called waterboarding is torture has been the focus of the U.S. Attorney General nomination hearings currently taking place in Washington D.C.. Judge Wallach weighs in on this debate with an emphatic YES.

Press Freedom at Risk . . . in Germany!

In American Constitutional Law we learn about the central role that freedom of the press has played in the development of the American constitutional democracy. It goes without saying that press freedom is essential to any democracy. Which is why some of the measures taken by governments after the September 11 attacks in America are troubling. Der Spiegel has an interesting article on how the German government is joining the ranks of countries who are jeopardizing press freedom as part of the "war on terror."

Torture and the Appointment Process

Students of American Constitutional Law learn that the U.S. President has the power to appoint the government's chief law enforcement officer, the Attorney General. Students also know that while the President has the power to appoint, he must also receive the consent of the United States Senate. This nomination process has been playing itself out in Washington D.C. over the past few weeks with President Bush's nominee for Attorney General, former federal judge Michael Mukasey (link to Spiegel article in German), appearing several times before a committee of Senators who are responsible for determining whether the nominee is "qualified." If you have been following this process, which is somewhat unlikely because the German media has not been following it, the central question concerning whether Judge Mukasey should be approved as the new AG is whether he believes something called waterboarding is torture. Seems odd that the process should boil down to this one question, and even odder that Judge Mukasey refuses to give his position on it. So what is waterboarding, you might ask? There was a great piece posted yesterday on the Foreign Policy Magazine blog quoting a person who is very familiar with how the waterboarding technique works. Follow the link below and judge for yourself whether this technique is torture and then ask yourself, why won't Judge Mukasey simply tell the Senators that this technique is indeed torture.

• Ace interrogator: "Waterboarding is torture... period."

The Joke's on Him

Did you hear the joke about the American lawyer who sued a dry cleaner for $54 million because the dry cleaner lost a pair of pants he brought in for $10.50 worth of alterations? Okay, as you probably know it was not a joke. An actual lawyer filed a real lawsuit in Washington D.C. earlier this year over missing pants. And yes the amount claimed in damages was $54 million. The lawsuit was rightfully dismissed, but the damage had been done. This case, and many others, keep the stereotype that many Germans have of Americans as being litigation happy alive and well. According to this stereotype, Americans will sue over just about anything (being served coffee that is "too hot," getting sick from smoking cigarettes or eating fast food, etc.). As I will point out in later posts, while the stereotype of Americans may be fair, it's not limited just to Americans. But back to the dry cleaner lawsuit. You may remember that the lawyer who filed the suit was also an administrative law judge. Well not for much longer, according to the Washington Post.

More on el-Masri

Earlier this week I mentioned the case of Khaled el-Masri and how the U.S. Supreme Court has basically told him that he has no remedy for being wrongly abducted and held by U.S. authorities. Spiegel Online has a nice summary of the Court's decision in both German and English. It's worth read in whatever language you choose. The title of the piece Security Trumps Liberty says it all.

Access to Justice

There is an access to justice problem in Canada, according the country's top judge. The issue, which is not unique to Canada, is the cost of going to court to seek redress for a wrong. According to a recent Toronto Star report, the cost of a routine three-day civil trial in Ontario is about $60,000, more than the median Canadian family income. The Star reports:

In a speech to the Canadian Bar Association yesterday, the country's top judge declared access to justice "a basic right" for Canadians, like education or health care. Although [Chief Justice Beverely] McLachlin has spoken out about the problem in the past, she sharpened her remarks yesterday and went further than she has before, citing what she described as an "increasingly urgent situation." The justice system risks losing the confidence of the public when "wealthy corporations," or the poor, who qualify for legal aid, have the means to use the court system, she said, noting that for "middle-class" Canadians, resolving a legal problem of any significance often requires taking out a second mortgage or draining their life savings.

Others have argued that the problem is "money grubbing" lawyers who are charging excessive fees and lack principles.

More to Come

And yet another semester begins.

Since I last wrote, the branches of the U.S. government have been struggling with how much power the government should have to intercept electronic communication of suspected terrorists. Yet, with the U.S. Supreme Court's recent refusal to hear the case of Khaled el-Masri (a case of particular interest to Germans because el-Masri is a German) and the President's refusal to turn over documents to Congress related to his powerful surveillance program, it appears that the struggle is far from over. But this is really a constitutional law question, and that was last semester. So what's new in the news concerning classes being held this semester? A lot! Over the course of this semester, I will be posting items related to our discussions in class as a way of illustrating that the theory we discuss in class is related to everyday current events taking place in common law countries. Check back regularly.

Another Semester Break

I won't be posting during break. I'll resume posting at the start of next semester. Have a nice break!

An interesting piece was posted on the Slate Magazine website a few days ago entitled "How to Keep Brown Alive." As I noted in my last post, the Supreme Court has made it clear that race cannot be used as a factor in assigning students to schools; even if the classification is aimed at creating racial diversity. The Court held that the government could not meet the strict scrutiny test, which it is required to do for race-based classifications. So does this mean that the legacy of Brown v. Board of Education is dead? No says Richard Kahlenberg over at Slate. How about using wealth as a factor in assigning kids to schools? Kahlenberg notes that some 40 school districts are already using plans that assign kids to schools using wealth as a factor. He notes that these policies actually result in very diverse schools . . . even from the stand point of race.

Would such a classification survive Court scrutiny? Possibly. Classifications based upon wealth would be subject to the rational basis test, which as we discussed in class is a far easier hurdle for the government to clear. The goal of having diverse schools would likely be considered a legitimate government interest and using a wealth classification to achieve this goal would likely be deemed reasonably related to the goal. But could this classification still be challenged as being a race-based classification? Possibly. It is likely that white students would claim that this wealth classification is nothing more than a disguise for a race-based classification. Furthermore, these students could probably show that many of these policies were created to get around the recent Supreme Court ban on race-based classifications for assigning students to schools. So both effect and purpose could possibly be shown.

Another Controversial Finish

The United States Supreme Court finished its 2006-2007 term this week with a bang. As I mentioned last week, the Court still had some rather controversial cases left to decided as it entered its last week of session. The court did not disappoint . . . at least when it came to creating a controversy. The week started off with the Court holding that students do not have the right to engage in speech that contradicts a school policy against illegal activity. The policy in question was a school's anti-drug policy. The speech in question was a sign with the words "Bong Hits for Jesus" on it. In a 5-4 decision, the majority of the Court concluded that schools have the right to restrict student speech that advocates illegal behavior. In this case, a majority of the Court concluded that the sign was a pro-drug message, even if the student who created the sign didn't intend it to be. Many legal scholars see this as a narrow ruling, but at least three justices on the Court appear to be willing to give schools significantly more power to restrict student speech.

The Court's final decision, handed down yesterday, was every bit as controversial, if not more. The Court, in another 5-4 decision, struck down school policies that used race as a deciding factor in determining where a student would attend school. At issue was a policy intended to create racial balance in schools that resulted in students being bused across town to achieve this racial balance. This scheme had its origins in the landmark Brown v. Board of Education decision, which said that separate schools for blacks and whites could never be equal. While the Court ruling yesterday doesn't overturn Brown or cases that allow for affirmative action, it seems to severely limit government's ability to create diversity by using race as a factor. The Court basically said that the policy in question was not necessary to serve the states compelling interest. What other means the state could have used to create racial balance in its schools is left unsaid by the majority of the Court. The dissenters, on the other hand, claim the majority ignored past precedent and basically overturned past precedent without expressly doing so. This decision appears to be part of a larger strategy to limit the reach of past precedent that many conservatives believe were incorrectly decided, without actually overruling the precedent.

Interesting times at the United States Supreme Court and surely proof that the judicial appointments made by President Bush two years ago have made an enormous impact on the direction of the Court.

The Final Eight

Entering it's last week of 2006-2007 term, the United States Supreme Court still has eight cases left to decide. And as usual, they are some of the most controversial cases on the docket. Students in my Conversation and Presentation Skills class know that the court is trying to figure out whether a student can be punished for holding up a sign saying "Bong Hits for Jesus" at an event held outside of the school. This case has the potential of redefining how the court deals with the free speech rights of students. But some of the other cases left to decide are equally interesting. For instance, the Court must still determine whether schools can take race into account when assigning students to schools in a given school district. The practice has been used for decades to make sure there is some kind of racial balance in schools. As students in my Constitutional classes know, the issue how race classifications operate under the Equal Protection Clause has been controversial since the adoption of the 14th Amendment to the Constitution. Also still on the undecided list is a case dealing with the death penalty and mentally ill defendants, as well as the ability to bring Establishment Clause challenges, as the Court looks at what kind of "harm" one must show to be a plaintiff in a challenge based upon the Establishment Clause. The issues involved in these cases touch upon some of the most hotly debated issues in America, and many people are anxiously awaiting this last week of Court decisions.

Electing Judges

The New York Times has an interesting piece on a new study looking into the impact of campaign financing on judicial election campaigns. The study found that an average of $244,000 was spent on each judicial campaign. That's the average. You can be sure the campaigns for state supreme courts cost much more. Take Alabama's Supreme Court race for instance. According to the Times, the Alabama contest was the second most expensive in the history of the nation, with over 17,000 radio and televisions being run throughout the state during the campaing. 17,000! Take a look at the article for interesting facts on spending in judicial campaigns.

Symbols Aren't Always Speech

American Constitutional Law students learn that symbols are also considered speech that is protected by the Constitution's First Amendment. But one must be careful when dealing with symbols, as a biker club in California recently found out. For symbols to be speech they must communicate a reasonably understandable message. What does this mean exactly? Well for starters the person wearing the symbol must intend the symbol to express a thought or idea. Second, a reasonable person must be able to at least remotely understand the message being expressed.

A recent case in California, we will call it the California biker case, dealt with a prohibition of motorcycle club insignia and gang colors at something called the Gilroy Garlic Fair. The bikers in question wore a club symbol (pictured above) showing a skull, wings and a top hat; and were forced to leave the fair for violating the fair's aforementioned policy. They sued claiming the club symbol was speech protected by the First Amendment. They lost because not even the members of the biker club could agree on what the symbol meant. The court reasoned that if the bikers themselves didn't know what message was being expressed by wearing the symbol then how could the symbol be speech.

40 Years Ago Today

It was forty years ago today that the United States Supreme Court struck down laws banning blacks and whites from marrying. The now famous Loving v. Virginia case was brought on behalf of an interracial couple who were thrown in jail for violating Virginia law. They were eventually forced to move from the state until the Supreme Court finally stepped in to say that the practice of banning interracial marriages, which was still law in 17 states at the time, violated the Constitution's Equal Protection Clause. The Associated Press has a fascinating short piece on the history of the case. It's worth a read.

Independent Judges

There is a fierce debate currently being waged in the United States over how independent judges should be. As students of common law learn, the common law judge both interprets law and makes law. But there is a clear distinction between the two. When the legislature or constitution speaks to an issue, it the judge's job to interpret what the law or provision means. So what happens when judges, while interpreting law, end up doing so in such a way that actually looks more like lawmaking? In America, there is a movement to limit the ability of judges to interpret law in a manner that is inconsistent with the intent of the drafters of the law or the Constitution. But some "legal heavywieghts" are weighing in on this issue opposing efforts to place constraints on judges. One such advocate of "judicial independence" is retired Supreme Court Justice Sandra Day O'Connor, who recently gave a speech at the University of Tulsa on this issue. O'Connor's comments in the Tulsa World are worth a look.

Separation of Church and State

In our Constitutional Law class we will soon be discussing the religion clauses of the First Amendment. One of the more controversial interpretations of the First Amendment's Establishment Clause is that government and religion should be separate, or as Thomas Jefferson wrote, there should be "a wall separating church and state." The are many arguments in support of this interpretation of the Establishment Clause, but the one that is most convincing to me is that we should not allow government and religion to mix because America is a religiously diverse country and some religions will be given an advantage over others. For instance, if we allow prayer in public school, whose prayer should we allow? Christian? Jewish? Muslim? Hindu? If we simply allow the majority to decide then surely those practicing a minority religion will feel left out.

A nice illustration of this is currently being debated in Indonesia, which is predominately Muslim, but also has majority Christian areas. Many areas within Indonesia base their laws upon the Koran, also known as Sharia law. For instance, in some parts of the country all women, even those who are not Muslim, must abide by the Sharia law dress code for women. In response to this, politicians in a Christian area of the country are proposing basing their laws on the Bible. But is this really the best way for a diverse country to operate? Is it preferable to have a patchwork of relgious based laws across the country? Or is the better solution to simply keep religion and government separate, as Thomas Jefferson proposed at the birth of the United States.

Sleeping Judges

As the Wall Street Journal Law Blog recently pointed out, the media in America has said a lot lately about the election of judges and how much judges are paid, but they missed an interesting story that also deals with the quality of the judiciary--sleeping judges. That's right, apparently there is a problem in countries across the globe concerning judges who simply cannot stay awake while on the bench. The WSJ Law Blog writes:

Ronald Grunstein, a professor in Sydney, Australia, specializing in human sleep physiology, investigated 15 cases of “judicial sleepiness” around the world. His conclusion: Judges should be more actively monitored for falling asleep on the bench, a problem that could have consequences in the courtroom. The study is included in the current issue of Sleep, the official journal of the Associated Professional Sleep Societies. Here’s the 26-page study

.

Supreme Court Allows High Speed Car Chases

A few weeks ago the United States Supreme Court handed down a very interesting ruling concerning high-speed car chases. The question before the Court was whether a person injured during a high-speed car chase with police could sue the police for his injury. The case in question dealt with an individual who was trying to get away from the police. After several minutes of a high-speed chase (captured on this fascinating video), police decided to end the chase by nudging the fleeing suspect's car, causing the suspect to lose control and crash. The fleeing suspect was severely injured and sued police. The Court found the suspect could not sue police for his injuries. But what really makes this case interesting is 1) the video and 2) Justice John Paul Stevens' dissenting opinion where he criticizes the Court for engaging fact finding. Students of Common Law Legal System will remember that appellate courts in the United States generally don't engage in fact finding. That is job of juries and trial court judges. But in this case Justice Antonin Scalia, who wrote the majority opinion for the Court, used evidence that was not used by lower courts (the video) in making his decision. Stevens said that the Supreme Court should not be engaged in this kind of fact finding. His colleagues (and I would argue the Constitution), however, did not agree. Stevens was the lone dissenter in this case.

Views on Guantanamo

Last week in class I made the off-hand remark that most Americans don't care about what is happening at Guantanamo Bay. My opinion was based more upon anecdote than fact. However polling data does appear to support my claim. A 2005 poll found that while Americans were beginning to question the war in Iraq, they still firmly supported the government's handling of the detainees at Guantanamo. While the rest of the world considered the American policy to border on lawlessness, seven-out-of-ten adults in America believed the prisoners there were being treated "better than they deserve" (36%) or "about right" (34%). However, a year later polls found that 70% of American believed that the detainees should not be held indefinitely without being charged with some kind of crime.

Why the reversal? First, the second poll was taken just after the U.S. Supreme Court had issued it's opinion in Hamdan v. Rumsfeld saying that the U.S. must provide detainees with some kind of hearing to challenge their detention. Arguably, before this case caught the media's attention most Americans had no idea these detainees had never been given the chance to challenge their detention. Second, Americans are becoming increasingly suspect of many things the Bush Administration is doing as part of their "War on Terror." With that said, it's striking that no Presidential candidate from either party dares to mention Guantanamo. That's likely because most Americans still believe that Guantanamo houses the "worst of the worst" terrorists, as we have been told repeatedly by the President. As an award winning radio story nicely illustrated recently, the idea that the "worst of the worst" are at Guantanamo is just part of the long line of untruths spread by the Administration concerning it's war on terror policy.

Withdrawing the War Power

In our Constitutional Law classes we have been discussing the powers possessed by each branch of the American government. As we learned, Article I of the Constitution gives Congress the power to declare war. While the last actual declaration of war was just after the attack of Pearl Harbor, Congress has on many occasions passed resolutions giving the President the power to engage in hostilities on foreign soil. Most recently Congress did this with Iraq. While never specifically declaring war against Iraq, Congress did pass a resolution allowing the President to send troops there should he see fit. As we know, he saw fit. Currently the Democrat-controlled Congress and Republican President are at odds over when, or whether, to bring the troops back from Iraq. Congress has tried to pass funding bills that also include timetables for troop withdrawals. The President has resisted this effort by vetoing such bills.

Now comes an interesting proposal from someone who herself wishes to be President one day. Sen. Hillary Clinton has proposed that Congress withdraw the resolution it passed several years ago giving the President the authority to attack Iraq. The question that legal scholars are surely asking themselves at the moment is, can they do that? Once Congress gives the President the power to make war, can Congress withdraw that power? My hunch is no. But it does raise an interesting question.

Bush, the Commander Guy

This week we will be discussing the President's power of Commander-in-Chief in our Constitutional Law classes, although it should have been already clear after our discussion of Congress's war power that the President is indeed the commander of the armed forces. Apparently, President Bush feels that Commander-in-Chief is too formal a title for an "average Joe" like him.

“The question is, ‘Who ought to make that decision, the Congress or the commanders?,’’ Mr. Bush said. “As you know, my position is clear – I’m the commander guy.”

That's right, the Constitution might say that Bush is the Commander-in-Chief, but in his mind he is simply "the commander guy."

Civil Liberties in an Age of Terror

Spiegel Online International (Spiegel's English website) has an excellent, albeit long, piece on the delicate balancing act currently taking place between the war on terror and civil liberties. I suggest taking a look at it because it discusses many issues with which German law students are familiar. Sometimes reading complicated foreign language text is easier if the reader is already familiar with the topic. Furthermore, while we don't talk specifically in the FFA about some of the issues raised in the text, there are general principles with which all FFA students will recognize, especially those concerning Constitutional Law. For instance:

In addition, in any constitutional democracy government measures against terrorism and suspects of terrorism ought to be subject to review by an independent and neutral institution just as in non-exceptional cases. When civil liberties are concerned, the appropriate institution is the judiciary. Governments tend to invoke the grand values when it comes to fighting terrorism, and they paint gloomy pictures in order to justify extraordinary means. Courts operate from a certain distance, do not have to look to the next election, and can employ a more sober view. There is no good reason to exempt anti-terror measures from judicial scrutiny. In delicate cases in-camera procedures are better than no judicial control at all.

Appeals Court: Fight over Bible Display Moot

The Associated Press reported last week that the 5th Circuit Court of Appeals ruled that a dispute over the placement of monument depicting an individual holding the Bible on public property was moot. In a few weeks American Constitutional Law students will be introduced to the concept of mootness. The short story on mootness is the Court no longer felt there was an active dispute that needed a remedy. Those students in my Conversation and Presentation Skills for Lawyers are by now all too familiar with why religious displays on government property cause concern. Students in both classes may want to take a quick look at the linked article above. It's a good introduction to both mootness and the display of religious symbols on public property.

Happy Birthday Justice Stevens

Last week United States Supreme Court Justice John Paul Stevens celebrated his 87th birthday. At 87 Stevens is the third oldest Justice in Supreme Court history. The record is held by Oliver Wendell Holmes, who was 90 when he retired from the Court. Stevens is currently the longest serving member of the Court (31 years), but he would need to serve until 2012 to break the record of service held by Justice William O Douglas (36 years). Students may remember that one is appointed to the Federal Court in the United States for life. Most judges take this seriously and either die in office or retire well beyond the "normal" age of retirement. These lifetime appointments are somewhat unique in the Common Law system. Judges in England must retire at age 70, while Supreme Court Justices in Canada must step down upon reaching age 75.

Court Reverses Itself

A decision handed down by the U.S. Supreme Court last week nicely illustrates several recurring themes in most of our common law courses. Early on students learn that because of the concepts of precedent and stare decisis courts are suppose to follow rules created earlier in time by higher court decisions. They are then taught that the highest court in most common law countries are not really obligated to follow their own past decisions, only the lower courts are. Finally they realize that when high courts don't follow their own past decision it's primarily because some or all of the members of the court have changed.

Last week's decision illustrates this point very nicely. In 2000 the United States Supreme Court struck down a law prohibting a particular kind of abortion procedure because it failed to make an exception that would allow the procedure to be used if needed to protect the health of the woman. This exception has been part of Supreme Court abortion rulings for well over 30 years. Last week the Court reversed itself saying that such a law was valid despite the fact that no exception for the woman's health existed. So what changed between 2000 and 2007? Simple really. President Bush was able to appoint two new members to Court because of the death of one Justice and the retirement of another. Those two appointments shifted the majority view of the court on this matter in a way that basically led the Court to reversing itself.

The Deliberative Body

In last week's Constitutional Law classes I put forth the idea that of the Houses of Congress (Legislative Branch), the Senate is the far more deliberative body. In support of this I explained how Senators serve six year terms, which means they are a bit less influenced by public opinion and more willing to look closely at issues. More importantly, though, is the filibuster power. It takes only 41 senators to stop debate on a bill. 41 you may ask. Well, as I explained last week it takes 60 senators to terminate the filibuster power being used on a piece of legislation. A recent debate in the United States Senate over prescription drug prices nicely illustrates how this power works. Follow the link below to an Associated Press article describing this debate and see if you can understand exactly what happened, and more importantly why a minority of Senators was able to stop the bill in question from being voted on by the full Senate.

• Senate Blocks Medicare Drug Price Bill
  

Canadians Celebrate Charter of Rights

Canadians are celebrating the 25th anniversary of the passage of the Charter of Rights, Canada's version of a bill or rights enshrined in the constitution. Prior to it's passage, Canadians were protected from government abuse by the Canadian Bill of Rights, which was federal law that could be changed at the whim of Parliament. By adding rights to the Constitution itself, Canada took the important step of making these rights basically untouchable by the majority-elected Parliament and subject only to Supreme Court interpretation and/or amendment of the constitution itself, not an easy task. In celebration of this anniversary, the Toronto Globe and Mail polled Canadian legal scholars to see what are the ten most influential Supreme Court cases interpreting the Charter. Not surprisingly many of the cases deal with issues that much of the western world, and specifically the United States, has been grappling with for the past few decades: abortion, gay rights and the rights of criminal defendants.

Electoral College

Yesterday during the introduction lecture for U.S. Constitutional Law we discussed the many ways that the American form government created by the Constitution is far from a direct democracy. One example given is how the President is elected, where the winner of the popular vote can still lose the election, as was the case in 2000 when Al Gore won the most votes across the country and still lost the election. The reason for this, as we discussed, is the Electoral College that actually elects the President (click here for more on the Electoral College). As I mentioned in class, in all but two states the winner of a given state gets all of that state's Electoral College votes. Thus, a person could win a big state, say Florida, by only a few hundred votes. Yet the loser of the state gets absolutely none of that state's Electoral College votes, in Florida's case 27 votes (see above map for allocation of Electoral Votes among the states). To make a long story short, another state seems to be joining Maine and Nebraska in allocating their Electoral College votes differently. Maryland has just passed legislation that would award all of its Electoral College votes (10) to the winner of the national popular election and not the person who receives the most votes cast in Maryland. This is obviously part of a movement to make the Electoral College irrelevant without having to change the U.S. Constitution.

Canadians Want to Elect Judges

The selection of judges in common law countries varies from jurisdiction to jurisdiction. In the United States, where you have a federal court and 50 individual state court systems, the selection of judges is a mixed bag. All federal judges are appointed by the President for life terms. But the selection of judges at the state level varies. A growing number of states allow their citizen to elect judges, like they do other political offices. It appears that a majority of Canadians like the idea of judges campaigning for their spots. The Toronto Globe and Mail reports that two-thirds of Canadians want to abandon their current judicial selection system and replace it with elections. Not everyone in Cananda thinks this is a good idea. Ontario's Chief Justice questioned whether the country's judicial system would remain impartial noting that:

if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

The Chief Justice also cautioned that money needed to run judicial campaigns could lead to abuse.

Posts Resuming

I will be posting again this week with the start of the new semester. Stay tuned.

Is Defending Guantanamo Detainees Unpatriotic?

The answer seems to be yes, at least for one high ranking U.S. Department of Defense official. Jurist Legal News and Research (operated by the University of Pittsburgh) has a great summary of how US Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson believes that some of the nation's top law firms are acting against the country's interest.

In an on Federal News Radio Thursday on the fifth anniversary of the US military prison, Stimson predicted that "when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line in 2001 those CEO's are going to make those law firms choose between representing terrorists or representing reputable firms." The former Navy lawyer said "It's shocking...The major law firms in this country...are out there representing detainees."

Advocates for such things as the Rule of Law and fairness immediately criticized Stimson. As the current American Bar Association President rightfully said,

Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work -- and doing it on a volunteer basis -- is deeply offensive to members of the legal profession, and we hope to all Americans. The American Bar Association supports lawyers who give of their time and expertise defending those involved in legal actions. In fact it is one of the basic tenets of the Association's Second Season of Service, that lawyers should perform pro bono and volunteer work.

A Defense Department spokesperson quickly backed away from Stimson's comments saying they did not reflect the official view of the Department. Let's hope so. Stimson himself eventually tried to reverse himself using the age-old excuse "my comments were taken out of context." Right.

Semester Break

I will not be posting material during semester break (Feburary & March). I will resume posting in early April.

Judge's Pay In America

Recently the Chief Justice of the U.S. Supreme Court said that the government was facing a constitutional crisis. Was he talking about attempts by the Bush Administration to increase the power of the Executive Branch? No. In fact he was talking about the wages received by federal court judges. In our Common Law Legal System class, I noted that many people who are appointed to courts in England and the United States actually take a rather large pay cut by becoming a judge. According to Chief Justice Roberts, this is taking a toll on the judicial branch of the U.S. government. There is an interesting commentary on the Law. com website on this topic that is worth checking out.

What is an "American Baby"

The U.S. toymaker Toys R Us recently ran a competition whereby the "first American baby" born in 2007 would receive a $25,000 bond. The apparent winner was born in New York City at the stroke of midnight on January 1st. After naming the baby of Chinese immigrant Yan Zhu Liu as the winner, the company quickly revoked the prize claiming that the baby was not an "American baby" because the parents are not citizens or legal residents of the United States. The award was then given to a child in Georgia, whose parents were both "born and bred" Americans. A firestorm erupted as Chinese-American pressure groups cried foul. The company, sensing a public relations disaster, quickly reversed itself again and gave the $25,000 prize not only to Ms. Liu's child, but also allowed the child born in Georgia to keep its prize. The company even decided to give the award to a third child, whose parents are immigrants from El Salvador. Apparently, the fine print contained within the sweepstakes' rules limited winners to children born to American citizens or legal residents, but the large print simply said "American baby", raising some interesting contract interpretation questions. With our Common Law of Contract exam fast approaching, here is another question to ponder. Why is a competition like this one deemed an offer and not an invitation to treat?

10 Worst Civil Liberties Violations in 2006

Slate Magazine writer Dahlia Lithwick has come up with a list of "The 10 most outrageous civil liberties violations of 2006." Of course she is talking about civil liberties being violated in the United States (Slate is a U.S. magazine started by Microsoft in 1996). The list contains some well-known issues such as the treatment of detainees at Guantanamo Bay, Bush's wiretapping scheme, and the Military Commission Act of 2006, which created military tribunals to try the Guantanamo Bay detainees. It also contains a few items that didn't receive as much media attention. For those who are interested in American politics and especially American constitutional law, the article is worth a look.

Santa's Butt Can Be Displayed

Well, it can be displayed on beer bottles at least, according the Maine Bureau of Liquor Enforcement. Last month I wrote about a First Amendment case in the State of Maine concerning a beer bottle label showing a cartoon of a bare-bottomed Santa. According the Associated Press, the State of Maine will allow bottles with this label to be sold in stores. State officials admitted that a Court would probably find that the labels are protected by the First Amendment's free speech provision.

Few Cases Reach High Court

It appears that legal trends in the United States, at least those involving the Supreme Court, have a tendency to migrate north. Last year there was concern that the appointment of justices to the Canadian Supreme Court was becoming too political, just like the American process for filling court vacancies. Now comes word that Canada's highest court's caseload has been dwindling over the past several years, just like the caseload of the U.S. Supreme Court. The Toronto Globe and Mail reports:

A steady drop in the number of judgments produced by the Supreme Court of Canada hit a striking new low in 2006, with the court rendering just 59 decisions. Statistics compiled by The Globe and Mail show a total that is dramatically lower than years such as 1990, when the court rendered 144 rulings, and 1993, when it handed down 138 rulings.

This decrease looks remarkably similar to what is taking place in the U.S. As the New York Times reported last month:

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s.