New UK Supreme Court Taking Shape?

As part of their introduction to common law, students in Münster's FFA program are given an overview of the court structure in England. This is an exciting time to be learning about the UK court system (well, we really learn about the system in England/Wales) because it is in the midst of unprecedented change. Receiving most of the attention is the new UK Supreme Court, slated to open its doors in 2009. This new high court will basically replace the House of Lords as the top court in the UK. The plan is for the 12 Law Lords who make up the current top court to become members of the new Supreme Court. But eight of the twelve current Law Lords are set to retire before 2009 (remember, Law Lords must retire at age 75 in the England/Wales system, although the retirement age for most other judges is 70).

Reports out of England (yes, I am aware that this link is to a page run by the University of Pittsburgh law school and that Pittsburgh is NOT in England) indicate that the current Lord Chief Justice will likely sit as the head of the new court when it opens in 2009, replacing the current head of the Law Lords who is set to retire sometime this year. The other three vacancies will likely be filled under the new appointment system, which may include submitting an application and doing interviews.

Self-taught lawyers in America

Here is something I may have overlooked in lectures concerning how one becomes a lawyer in the United States. It appears that there are still states that allow people to teach themselves about the law. Put another way, there are states that do not require one to have a law degree to practice law. Here's how it generally works. The states of California, Maine, New York, Vermont, Virginia, Washington and Wyoming allow one to study in a law office (basically an apprenticeship) before sitting for the state bar exam. To be honest, I had no idea that these states still have this as an option. There is a long tradition of self-taught lawyers in the United States, Abraham Lincoln being probably the most famous, but as this article points out, they are a dying breed. Only 44 self-taught lawyers applied to take state bar exams in 2006, and of those only 18 passed (a 41% passage rate). Nationwide, the passage rate was 67%. Maybe going to school to study law isn't such a bad idea.

Fewer High Court Cases Explained

About a year ago, I posted comments concerning the trend in both the U.S. and Canada of fewer cases being heard by their respective supreme courts. In Canada, the top court hears only about one-third of the case it did back in the 1990s. In the U.S., Justices' caseload has been cut in half since the mid-1980s. Is this a case of lazy (or distracted) judges? According to Solicitor General (the person appointed to represent the Federal Government in cases before the U.S. Supreme Court) Paul Clement, the answer is NO. Clement claims that fewer cases being heard by the Court is a result of fewer laws being passed by Congress. He goes on to say that there also are fewer instances where the Circuit Courts (court of appeals) have differing opinions. Valid explanations.

The Comma Debate Heads to the Court

Back in December, I wrote about how the question of whether gun ownership is a fundamental right under the U.S. Constitution is currently under review by the U.S. Supreme Court. The New York Time recently published an excellent guest editorial about the role of the comma in this debate. Yes, I said the role of the comma. You see, part of the problem with the Second Amendment is its odd punctuation. The Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Notice the placement of the commas! It's confusing at best, unintelligible at worst. As the Times piece explains, advocates of gun rights claim the second comma, after "State," endows individuals with the right to bear arms. The U.S. Court of Appeals for the D.C. Circuit agreed with this interpretation, and struck down a Washington D.C. law attempting to regulate gun ownership. Other advocates talk about "absolute phrases" and "main clauses;" things that would make a grammarian proud but leave the rest of us perplexed.

The author of the Times piece makes an interesting claim about how commas were used at the time the Second Amendment was written, and essentially claims the Court should ignore the commas altogether. Give the article a quick read to see how comma placement can cause headaches, especially when the commas were placed by people who use different grammar rules than we use today.

Voter ID

One of several important cases argued before the U.S. Supreme Court this week involves whether states can require people to show a picture ID (driver's license, passport, any other government-issued identification card with a picture on it) before being allowed to vote. The arguments for strict voter ID rules deal with stopping voter fraud. The arguments against such strict rules focus on access to voting as a large segment of lower income people in the U.S. may have difficulty meeting a strict ID test (put another way, they may not have a picture ID). For more on this issue, I suggest taking a listen to this piece on National Public Radio and reading this article in the New York Times. I've never asked anyone before what voters in Germany have to show before they can vote?

Stare Decisis and the U.S. Supreme Court

Upon being introduced to common law, students quickly learn about the important role that precedent and stare decisis play. As students know, or should know, the U.S. Supreme Court is not bound by its own precedents. Or put another way, there is no vertical horizontal stare decisis at the highest level of the American federal judiciary system. In class we discussed several reasons why the Supreme Court may decide to overrule itself. However, the idea that the Court is not bound by its own decisions is often debated in the U.S.. Such a debate recently broke out within the Court itself. Earlier this week Justice Stephen Breyer wrote that the Court should always try to follow it's own past rulings, even if the rulings no longer make good law! Six other Justices signed onto this opinion. The two dissenters wrote that sometimes fairness requires past decisions to be overruled. Tony Mauro over at The Blog of Legal Times has a great post describing the recent spat over stare decisis among the Justices. It's worth a quick read.