14 December 2009
13 December 2009
Margaret H. Marshall, chief justice of the Supreme Judicial Court, expressed frustration while hearing an appeal in a Lowell first-degree murder case in which the defense claims a trial judge committed an error when he referenced the television show “CSI: Crime Scene Investigation. . . .’’
Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.
27 November 2009
25 November 2009
A riding lawn mower may have four wheels, a powerful engine and can cost as much as a used car. If it's stolen, however, the Georgia Supreme Court concluded Monday that it's not a motor vehicle.This is clearly not an easy call, as the 4-3 split indicates. The case can be found here. It is an interesting read.
The 4-3 decision overturned the conviction of Franklin Lloyd Harris, who was convicted of felony motor vehicle theft after he loaded a Toro riding mower in 2006 from a Home Depot in Dalton into his van and sped away. Because Harris was a repeat offender, he was sentenced to 10 years in prison.
23 November 2009
On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.The New York Times has more on this fascinating individual and case.
15 November 2009
Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices.More on this can be found at law.com.
13 November 2009
People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a higher court or, if they suspect judicial wrongdoing, ask a bar association to investigate. But one thing people can't generally do is sue. The rationale behind the notion -- called absolute judicial immunity -- is straightforward: Judges shouldn't have to defend themselves in court whenever they issue a ruling that makes someone unhappy.Two recently filed lawsuits in the state of Pennsylvania are trying to pierce this immunity. For more on this, I highly suggest reading the full article.
11 November 2009
In saying that he could not sue officials involved in his rendition, the United States Court of Appeals for the Second Circuit ruled by a vote of 7 to 4 that Congress could always create a civil damages remedy for harms suffered through rendition, but it had not done so.Setting aside the question of how Congress could have created a remedy for violations arising from a program about which it was not informed by the Bush Administration, there are some very interesting points to take away from this article.
“We decline to create, on our own, a new cause of action against officers and employees of the federal government,” Chief Judge Dennis G. Jacobs wrote in a 59-page majority opinion joined by six other judges.Judge Jacobs said that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from government officials for a constitutional violation.
First, in class students are told that hearings in the Court of Appeals are presided over by a three judge panel. So how do we get a 7 to 4 vote here? The decision was actually one made by an "en banc" panel. See here for a full discussion of this.
Second, boiled down to its simplest form, the argument being made by the majority here is they do not have jurisdiction to hear this case. Remember, Article I of the U.S. Constitution gives Congress the power to create lower federal courts and determine the courts' jurisdiction.
Finally, one could argue that this is an example of there being no common law in American federal courts. Many scholars argue that the only sources of law in the federal courts are statutes and the Constitution, not common law. When the judges say "we will not create a remedy," what they are really saying is we will not create a common law (judge-made) remedy.
08 November 2009
06 November 2009
04 November 2009
03 November 2009
30 October 2009
29 October 2009
Thomas - who hasn't asked a lawyer a question during arguments in nearly four years - said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments. "So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama. . . .Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court. "All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me.The Tuscaloosa News has more on Justice Thomas' visit.
27 October 2009
Watch your language out there, because profanity and blasphemy could lead to criminal charges. We might hope that First Amendment-protected free speech lets us utter profanities, blasphemies and other choice phrases that occasionally slip from our intemperate tongues. After all, the U.S. Supreme Court protected a man who wore a jacket into a Los Angeles County Courthouse bearing the words "Fuck the Draft." That led to the famous Cohen v. California (1971) ruling in which Justice John Marshall Harlan — a conservative during the Warren Court years — uttered a phrase that has become First Amendment lore: "One man's vulgarity is another's lyric." But hold on. Yes, in a free society adult citizens outside of special contexts (jobs, military, school) can speak their minds in the open air. But if you think old laws punishing profanity and blasphemy no longer exist, you're wrong — a surprising number of state laws still prohibit such speech. Even though the laws are rarely enforced, they are still on the books.You can read more here.
20 October 2009
Unless you have been in a cave for the past year, you know that there has been a sea change in Washington D.C. with the election of President Obama, and it appears that this change is even reaching the medicinal pot users. How so? Well, the Department of Justice (the federal office responsible for enforcing the federal anti-pot laws) recently decided that the limited federal law enforcement resources may be better spent going after real criminals instead of people who are doing something perfectly legal under their state's law. They will no longer enforce federal law against medicinal pot users in states where the use of medical marijuana is legal.
For those new to this blog and/or this topic, this issue really illustrates: 1) how state and federal governments can have different laws, 2) how the laws can sometimes conflict, and 3) how a change in government can make a huge difference, among other things.
23 July 2009
22 July 2009
10 July 2009
09 July 2009
24 June 2009
22 June 2009
UPDATE - According to the Associated Press, the process is now moving to the U.S. Senate.
19 June 2009
Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.The American Civil Liberties Union (ACLU) has also taken issue with the law saying that the legislation’s limits on commercial speech are broader than needed to accomplish the goal of reducing under-age smoking, i.e. the law is not narrowly tailored.
The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.
But the tobacco industry denies that any of its advertising is aimed at young people.
18 June 2009
It appears that some legislators in western states are not all that happy with President Obama and have decided that now is the time to challenge the power of the federal government. How do they intend to do this? Pass laws, especially dealing with gun control, that are in direct conflict to federal law with the hope that the courts will get involved in the dispute and overturn prior rulings that have given the federal government broad power. As the Times piece points out:
Supporters of the bill want the Supreme Court to eliminate gun controls and, eventually, curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use.As an aside, don't you find it somewhat disturbing that the modern cases challenging federal power seem to only involve sex (U.S. v. Morrison), drugs (Gonzales v. Raich) and guns (U.S. v. Lopez)?
16 June 2009
Before a high-profile federal trial began in Baltimore last month, lawyers for the three black defendants filed a motion claiming that the prosecution deliberately - and illegally - dismissed black jury candidates to pack the panel with whites.I highly recommend reading the rest of the article here.
"They want a jury that may be sympathetic to the death sentence," defense attorney Archangelo Tuminelli said.
But the judge ultimately ruled that the allegation was wrong. And, it turns out, the stereotype might be, too.
15 June 2009
(1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state's interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.Should any of these reasons be enough for the state to pass the rational basis test under the Equal Protection Clause?
10 June 2009
07 June 2009
One of the more important recently decided Commerce Clause cases dealt with whether the federal government could enforce federal anti-drugs in California after voters there decided to legalize marijuana for medicinal purposes. (see Raich v. Gonzalez) The answer given by the U.S. Supreme Court was yes, the Feds can arrest people for using marijuana even if users are doing so pursuant to California state law. The question many students must have is: so is it still legal to purchase marijuana in California, under state law, for medicinal purposes? The quick answer is under state law YES, but people who use the drug still run the risk of being arrested by federal agents under federal law. But it gets even more confusing. The San Diego Union-Tribune newspaper recently reported that San Diego County is suing the State of California to repeal the medical marijuana laws. Lawyers for San Diego and San Bernardino counties will argue that the state cannot force counties to issue identification cards to qualified medical marijuana patients because the drug is illegal under federal law.A few months later a California appeals court ruled that the federal law did not preempt the state law and ordered the two counties to issue medical marijuana licenses under the state law. The counties, of course, appealed their case to the U.S. Supreme Court (remember, because the federal law is at issue, the U.S. Supreme Court can have the final say). The Court declined to hear the case, letting the lower court ruling stand. As the L.A. Times reminds us:
Four years ago, the Supreme Court ruled that Congress and the federal government had the constitutional authority to regulate the sale and use of marijuana under its power over interstate commerce. The 6-3 decision, in the case of Gonzales vs. Raich, rejected the claim that personal use of homegrown marijuana was off-limits to federal authority. But the court did not rule on whether a state's law allowing medical use of marijuana was void because it conflicted with the federal law.By rejecting the case, the Supreme Court is not saying that no conflict exists. It is simply saying that it does not want to review the California appeals court case. Thus, the issue is "settled" until the U.S. Supreme decides to revisit the issue via another case, if it ever does decide to do this.
05 June 2009
29 May 2009
If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?If you are interested in the answers that more than a few law professors in the United States give to these question, I encourage you to read the rest of the article.
26 May 2009
24 May 2009
21 May 2009
This quote left me wondering. How can moving people into American prisons increase the potential for individuals to undertake attacks in the U.S.? Does he mean the individuals who would be put in prison might engage in attacks? Or does he mean that now terrorists will have even more incentive (hard believe that is possible unless one thinks that people like Bin Laden have gone soft on the U.S.) to attack the U.S.?
17 May 2009
So who counts when determining a state's population? Everyone. That's right, citizens and non-citizens, legal residents and illegal residents, registered voters and non-registered voters, adults and children. Everyone. More information is provided here by our friendly Census Bureau (the fine folks who conduct this decennial recount).
As an aside, as part of my search for this answer, I came across information concerning a movement here in Germany back in the late 1970s to introduce a census. Apparently a planned census in 1983 was halted by the Bundesverfassungsgericht. More can be found here.
16 May 2009
14 May 2009
12 May 2009
11 May 2009
Can a public high school prohibit students from wearing T-shirts bearing the Confederate Flag? According to the Sixth Circuit Court of Appeals, the answer is yes. The court's decision, which is relatively easy reading, can be found here.
28 April 2009
Article I of the U.S. Constitution gives the federal government sole authority to print money. But that isn't stopping local businesses in cities like my hometown of Detroit from printing their own (il)legal tender. USA Today has more.
23 April 2009
UPDATE - the Economist's Democracy in America Blog also has a torture news round-up. It seems as though torture is all anyone can talk about these days.
17 April 2009
15 April 2009
A while back I wrote about the impeachment of Illinois Governor Rod Blagojevich. In the last week the former Governor has been indicted AND signed on to star in an American reality show. I guess that answers the question of what happens to a person once they have been impeached.
03 March 2009
Gibt Obama auch Ihnen Zuversicht?
|Ja. Ich glaube, dass er überzeugende Antworten auf die globalen Probleme des 21. Jahrhunderts hat.|
|Nein. Er wird sich wie fast alle US-Präsidenten um amerikanische Interessen kümmern - um nichts weiter.|
So let me get this straight, Obama and all past Presidents are judged by how well they have tackled global problems? If they have instead opted to tackle the problems facing the people who actually elected them, they are seen as merely protecting American interests and nothing more? Is this really a fair question? Not surprisingly, 85% of respondents opted for "Nein."
29 January 2009
28 January 2009
27 January 2009
23 January 2009
So why do these two who once advocated for a supreme President now want Congress to keep the new President in check via the Treaty Clause of the Constitution? Simple really. Pursuant to the Treaty Clause, the President needs 66 votes in the Senate to ratify a treaty. These two former Bush aides are scared to death of the U.S. losing it's sovereignty by signing treaties dealing with global warming and international war crimes tribunals (read their op-ed and you will see what I mean). By claiming that the President should be forced to use the usual treaty route (the article explains, and student in my Constitutional Law class learn, how Presidents can get around the Treaty Clause), they are banking on the 41 Republican members of the U.S. Senate voting against such treaties, effectively defeating ratification.
A simply shameless argument, really, but not wholly unexpected. Look for more of this kind of back-tracking by people who supported the imperial presidency of George Bush. Now that they are out of power, an all powerful President doesn't seem like such a good idea. Go figure.
21 January 2009
20 January 2009
UPDATE - the graph on The Economist blog has been updated to include Obama's speech.
19 January 2009
The poll found 69 percent of blacks said King's vision has been fulfilled in the more than 45 years since his 1963 "I have a dream" speech -- roughly double the 34 percent who agreed with that assessment in a similar poll taken last March. But whites remain less optimistic, the survey found.Thus, in one year the number of African-Americans who feel King's dreams have been achieved has doubled! Can the election of one man really have changed so many minds? Or is this just a case of people being swept away by the symbolic significance of what we will see tomorrow?
18 January 2009
The United States Solicitor General is the person chosen by the President to argue cases on behalf of the government in the Supreme Court. In addition to actually arguing cases, the Solicitor General may also file amicus briefs in support of a party whose position is favoured by the government.
So why write about this now? Simple. President-elect Barack Obama has appointed the Dean of Harvard Law School, Elena Kagan, to be the next U.S. Solicitor General. This is significant because she will be the first female to hold this post (it should be noted that a woman held this post for six months on a temporary basis during the transition between the Clinton and Bush administrations). The fact that the media has not highlighted this landmark achievement for women may say much about how the presence of women in high powered positions is changing in the United States.
More importantly, Kagan's selection and the people with whom she is surrounding herself illustrates the dramitic shift that is taking place in Washington. For instance, Kagan has chosen a lawyer who argued before the Court on behalf of the rights of detainees at Guantanamo as one of her deputies. Put another way, people who spent the last eight years arguing against positions taken by the Bush Administration will now be representing the government before the Court!
UPDATE - the New York Times has more on Ms. Kagan, including the fact that she will be the first woman to fill the post.
15 January 2009
Carol Browner, President-elect Barack Obama's choice to be his climate czarina, served until last summer as a member of a socialist organization whose mission is to enact progressive government policies, including toward environmental concerns like climate change.Can you imagine? The person soon-to-be President Obama wants to deal with climate issues aims to enact progressive policies regarding climate change. The nerve!
05 January 2009
Students of common law, and more specifically American law, know that the rulings of the U.S. Supreme Court form binding precedent on courts below it. But happens when the Supreme Court itself says that it's decision is only limited to the case before it, and thus not binding on future cases in lowers court? That is exactly what the Court did in the infamous case of Bush v. Gore. That is the case, you may remember, that gave George Bush the presidency after the hotly contested 2000 election. Using the now famous words: "Our consideration is limited to the present circumstances," the Court limited, or at least tried to limit, the reach of its importance in future cases. Mission accomplished? Until recently yes, but a spate of election-related lawsuits have called into question whether the Court has successfully limited the reach of it's ruling. The New Times has more.