The Two Headed Supreme Court

As students who have heard my lecture on the Common Law Court System might recall, American courts at both the state and federal level are courts of general jurisdiction. Put another way, they hear all kinds of cases and there is not, at least at the highest levels, a division between civil and criminal cases. But students will also remember that I use Texas as an example of the exception to this rule, Texas having a Supreme Court that is the highest court for civil cases and a Criminal Court of Appeals, which sits as the highest court for criminal cases. I ran across an interesting article about the Texas system recently that not only includes a short explanation of how this system developed, but also reports that some in Texas are considering doing away with this unique, by American standards, division of labor. It's worth a read if you are interested in the American court system and some of its idiosyncrasies.

Gun Control in America

Students who have been following the school shooting story out of Connecticut and its political aftermath might be interested in a recent story published by the National Law Journal. The question about what kind of gun control legislation is possible in America is a legal as well as a political question. In 2008 the U.S. Supreme Court, in a landmark decision, ruled that gun ownership was an individual right. How far this right can be limited remains a matter of debate, both politically and legally, as the Law Journal points out.

More on Judicial Recusal

Thomson, Reuters has a nice article explaining why outspoken Justices of the Supreme Court should not have to recuse themselves simply because they have already taken a public stance on an upcoming case. More importantly, the article gives good examples of when it is appropriate for Justices to remove themselves from a case. For that reason alone, it is well worth a quick read.

The Politics of Appointing Judges

The New York Times reminds us yesterday that the process for appointing federal judges in the United States has become extremely political in the past few decades, culminating with a current vacancy rate of 9% of all federal judgeships. The editorial is a good review of how federal judges are selected and what role the filibuster now plays in the U.S. Senate to stop a President from filling judicial vacancies.

Too Hard to Change?

Is the American Constitution too hard to amend? Here is one person, among many, who thinks so. For what it's worth, I think the answer is: it depends on who is trying to changing it and for what purpose.

Recusal

When must a judge or justice remove himself or herself from a case because of a conflict of interest? The question is rarely easy to answer as what amounts to a conflict of interest can be disputed. Recently, Supreme Court Justice Stephen Breyer recused himself from two upcoming cases concerning environmental regulations. Justice normally do not say why they are recusing themselves, but some speculate that Justice Breyer is taking a pass because his brother was on the appeals court panel that ruled on these two cases in the lower court. Reuters has an article detailing Breyer's recusal, including this interesting tidbit:

During each Supreme Court term, there typically are a handful of cases in which justices recuse themselves. Members of the court make those decisions based on a federal statute, court rules and personal judgment.

In its "Statement of Recusal Policy," the court spells out situations where a justice must bow out. These include cases in which a relative of a justice has appeared as a lawyer or a justice has a financial interest in the outcome. At the same time, the guidelines caution that members of the court should not go beyond the required recusals.

Finding A Lawyer

Wie finden Sie Ihren Rechts­anwalt? asks Stiftung Warentest in a recent online survey. Good question, and my hunch is Germans go about this task in a different manner than Americans, at least outside of the business context. One main reason for my suspicion is the fact that in the United States lawyers can advertise for their services. I grew up watching Sam Bernstein commercials on television, where he implored viewers to call him if they had been injured: 1-800-Call-Sam was the number (see above picture)! Such commercials surely have an impact on how people find a lawyer. Whether this is a good thing or not is an entirely different question.

Green Rush

The election in the United States a few weeks ago was about much more than just who would be the next President. Voters in many states were faced with important, ground breaking and controversial ballot initiatives. For the first time in U.S. history voters in two states decided to recognize same gender marriage. Up to now, these marriages were recognized in a handful of states either by courts or statute.

But perhaps even more surprisingly, voters in two states decided to legalize the possession of small amounts of marijuana. While the coffee house culture in Holland might be dying, it has perhaps found a new home in the states of Washington and Colorado.

The video above from Reuters and the SZ explains. One thing of particular note is the discussion near the end about what the federal government might do about these new state laws. State pot laws offer perhaps the best example of how confusing American federalism can be. More on that next semesters, at least for students in their 3rd semester of Uni Osnbrück's FFA.

The Price of Electing Judges

The New York Times had an interesting editorial yesterday about how judicial elections in the United States are becoming more and more expensive. The Times says:

This year’s round of state judicial elections broke previous records for the amounts spent on judicial campaigns around the country. The dominant role played by special-interest money — including money from super PACs financed by undisclosed donors — has severely weakened the principle of fair and impartial courts.

The editorial goes on by citing Florida and my home state of Michigan as extreme of examples of campaign spending on judicial elections gone out of control.

What Happens in the Event of A Tie

So what happens if both candidates for President end up with 269 votes? How might "provisional ballots" leave us in a state of confusion after the election? What role mights lawyers and new voting laws play in the outcome? Answers to these questions and more can be found in this SZ article. The interactive map showing how the Electoral College works is also pretty cool.

The Role of Campaign Contributions in American Politics

From the SZ and Reuters, a great video on the impact of money on the American presidential campaign:

Much More Than the Presidency is at Stake

The SZ has a nice piece on the battle to control the U.S. Senate, which is also up for grabs next Tuesday. Who controls the Senate is important because the Senate, in many instances, can directly check the power of the President (treaties, nominations, etc.). But equally important is the fact that the Senate is a co-equal partner with the House of Representative in the legislative process. Put a different way, if one party controls both the House and Senate, that party is more likely to be able to draft bills that they favor.

More importantly, as the SZ points out, who controls the Senate may also determine what the next President can accomplish:

"Zurzeit sind fünf Szenarien denkbar, die zeigen, wie unterschiedlich groß der mögliche Spielraum für Obama und Romney trotz eines Sieges sein kann. (see here for the five scenarios)"

How We Pick Our Judges: Missouri Style

Apparently some folks in the State of Missouri are not at all happy with the system they have for selecting judges. In Missouri, court vacancies are filled using an independent commission who sends candidates to the governor for his or her approval. Currently, the commission is made up of a Supreme Court judge, three lawyers selected by the Missouri Bar Association and three gubernatorial appointees who are not lawyers. Critics of the plan claim that this gives too much power to the Bar Association, which according to critics, are dominated by trial lawyers.

Under an alternative plan that will be on the ballot next Tuesday, the Supreme Court judge would be replaced with a forth gubernatorial appointee. But the fiercest critics of the judicial nomination system in Missouri are not endorsing this alternative plan, instead continuing their push for open and contested elections for all judges.

“The issue is very important,” said Gary Harris of the advocacy group Better Courts for Missouri. “Everyone wants access to fair and impartial courts and everyone wants judges who are impartial.”

A question for students to ponder. If the goal is indeed fair and impartial courts, is a push for elected judges really the answer?

All About the Swing States

Der Spiegel has a rather accurate description of what the U.S. Presidential Election has come down to: Swing States. The modern Presidential Election is fought not nationwide, but in a few states where the election close. Places like California, Texas, and New York are rarely visited by the candidates despite having the most votes in the Electoral College, because it is already assumed that one candidate or the other will win the state. I would be curious to hear what students think about this system after reading the Spiegel piece.

Everything You Need to Know About Presidential Debate History

The Week has an interesting, concise history of American presidential debates. A few take away factoids: The debates between Stephen Douglas and Abraham Lincoln in 1858 are widely considered to be the first debates between presidential candidates. These debates have taken on mythical proportions in the American political psyche. The first modern television debate took place between Richard Nixon and John F. Kennedy in 1960, but this did not begin a tradition, as it was not until 1976 until another set of debates took place. The Nixon/Kennedy debate also seemed to put in motion the importance of style over substance. Give the article a read to see how so. 

Engel v. Vitale at 50

Students in any of my courses that have touched upon religion in the United States are familiar with the case Engel v. Vitale, one of the most important or at least controversial Establishment Clause cases decided by the United States Supreme Court. In fact, students in my American Constitutional Law course looked at the case in depth yesterday. Unbeknown to me, yesterday was also the 50th anniversary of the Court's decision. The Desert News has a nice piece reflecting on the importance of the decision and how 50 years later it is still at the center of controversy.

When Government Breaches for Non-Payment

What happens when the federal government enters into a contract with private parties to provide some kind of services for the government, and then Congress refuses to allocate money to cover the costs of these services, or put a different way, refuses to give the government the money needed to pay for the services under the contract? Breach? You bet, said the U.S. Supreme Court yesterday.

Apparently Congress has created something called a "Judgment Fund" to cover costs related to court judgments issued against it. The Court determined that when the government breaches a contract, it must dip into this fund to make good on the promises it made under the contract.

Why? Lyle Denniston at SCOTUS blog sums up the Court's rationale nicely:

In stressing that the government must live up to what it promises its contracting partners, the Court majority said that this would actually benefit the government’s overall contracting operations, because more partners will be willing to join in contracts with the government if they know that the government has to meet whatever obligations it commits itself to satisfy.  Those who would enter a contract without such an assurance, the Court added, are likely to insist that the government pay a premium to “account for the risk of nonpayment.”

The Court is an Issue

Every four years Americans are reminded by the press about just how important the Presidential Election is to the U.S. Supreme Court, or at least to the composition of the Court. A recent piece in the U.S. Today begins by stating that "[t]his presidential election year, the most important numbers at the court could be 79, 76, 75 and 73. Those are the ages" of four of its members. Put a different way, up to four Justices might be retiring in the near future. Now might be good time for students in my American Constitutional Law and Common Law Legal System courses to reflect on our discussions about the Court and how its members are selected.

No One is Popular

The popularity of Congress is at an all-time low, according to many polls. President Obama is not very popular, but his opponent Mitt Romney is even less popular, although that might change. And now we are being told that the U.S. Supreme Court approval rating is at an historical low. The New York Times has more.

Time for a Fix?

Recently I came across a series in Slate Magazine that has somehow escaped my attention: How Can We Fix the Constitution. This is certainly not a new topic. Heck the founders were talking about how to fix the Constitution even before they ratified it. Remember, the Bill of Rights was basically a concession to anti-federalists who feared the strong central government being created by the new governing document. Put a different way, the Bill of Rights was kind of a fix to the new Constitution.

Last week, U.S. Supreme Court reporter Linda Greenhouse weighed in on the question of whether there should be term-limits, like those that exist for member of the Bundesverfassungsgericht, for members of the U.S. Supreme Court. It is an interesting, and yes short read. Check it out.

As an aside, the Slate series was inspired by the new comedic book by Kevin Bleyer, a writer for the very popular fake news program The Daily Show entitled  Me the People.

Not Again

I touch upon freedom of speech in several of my courses. When I do, I always like to point out that even offensive speech like swearing or flipping someone the bird is protected speech under the U.S. Constitution's First Amendment. I also like to point out that not a year goes by that I fail to see some news article about some city who has tried to punish someone for swearing in public. And right on cue comes an Associated Press piece about a small town in Massachusetts who just passed a local ordinance banning "loud, profanity-laden language." Incredibly, or maybe not, I wrote a similar post a year and one day ago about another local government punishing someone for swearing.

Election Time is Fast Approaching

The SZ recently published two interesting articles concerning the upcoming elections in America. One looks at the influence of the 24-hour cable news network Fox News, while the other explains how a recent U.S. Supreme Court ruling has led to even more reliance on campaign contributions and created a situation where outside, so-called Political Action Groups may have more influence on the elections then the candidates themselves. The articles should be of interest to anyone interested in the American political system, which I assume some of you studying American law are.

Supreme Court declines to hear 'So help me God' lawsuit

The Establishment Clause of the U.S. Constitution, or least the way the Court has struggled with it, is not an easy concept for students to grasp. What makes it most confusing is that America is perceived as an über-religious country, and then students read about the wall of separation and are left totally confused. I assume most religious conservatives in America share their plight.

But if there really is this wall separating church and state in America, why are references to God seemingly everywhere: on money, in the national motto, in the pledge of allegiance, said by the President after almost every televised speech, as so on. Recently the U.S. Supreme Court was asked to consider the same question in the context of an Establishment Clause challenge to the taking of the Presidential oath whereby the Chief Justice finishes the oath by asking the soon-to-be President to repeat "so help me God."

Time for a Change?

Judicial elections in the State of Michigan have become some of the most expensive and downright nasty in the country. In a recent guest commentary published in the Detroit Free Press, several judges suggest it is time to fix a system where:

2010 candidates for the Michigan Supreme Court raised a total of $2.6 million. The political parties and state-based interest groups reported spending another $2.5 million. But data collected from the public files of state television broadcasters and cable systems showed that an additional $6.3 million was spent by the political parties and interest groups.

 Among the ideas suggested: scrap elections of judges!

Do Away With Life Tenure?

The United States Constitution provides that judges "shall hold their Offices during good Behavior," which put another way means they are appointed for life. Is that a good idea? Not really claims one law professor.

The Electoral College

Just in case my explanation of the way Americans choose their President was not clear, the Economist magazine has a very clear and concise one. The wonderful British accent of the narrator perhaps makes this explanation much more enjoyable to listen to than the one I provided in class.

Jury Nullification. Unlawful?

One concept that seems to boggle the minds of students learning about the common law jury system is jury nullification. As students have learned, generally this is the principle whereby jurors may ignore the law when reaching their verdict if they believe in good conscience that applying the law strictly in a case would be unjust. As I repeatedly tell students, most jurors have no idea that they have such power, and no judge in his or her right mind would instruct the jury about this right.

But would happen if a private citizen tried to inform potential jurors of this right on their way into the courthouse? Could that be considered tampering with the judicial system? Illegal? It should be, argued New York prosecutors in a case they brought against an 80 year old retired professor who stood outside courthouses and distributed information to people about jury nullification. See here for the result.

The Veepstakes

Yes, even the selection process for choosing a potential Vice-President of the United States has been boiled down to some catchy, made for TV tagline. Today we refer to the selection of a running mate for a presidential election as the "Veepstakes." Probably not what the founders had in mind when they created the position in Article II of the U.S. Constitution. Of course, as students in my American Constitutional Law course should already know, the founders set forth a different means for choosing a Vice-President than the one we have today. It was changed by the 12th Amendment.

But my real point here is not rehash what we learned in class, but to direct you to an in-depth article in Die Zeit about the current speculation as to who GOP presidential nominee Mitt Romney will select as his running mate. The article goes into why this choice may be important, and gives examples of how a bad choice can hurt the presidential candidate. A good, albeit long, read. At least its in German.

Kiffen gegen die Staatskrise

Well actually "Kiffen gegen Schmerzen" is the name of a very informative Die Zeit article on California's medical marijuana law, although the article also notes that "Kiffen gegen die Staatskrise" may be equally applicable as the State of California receives over $1 billion dollars annually in tax revenue from the sale of medical pot. But I digress.

Students in any of my courses where we have discussed the American version of federalism should immediately know why this law is of interest to us. Students currently in my American Constitutional Law course will learn why next week. Either way, anyone interested in learning more about California's somewhat controversial law should take a look at the article in Die Zeit.

Tweeting in the Courtroom

Does the use of Twitter by reporters to send out real-time reports of a courtroom proceeding endanger the rights of criminal defendants? According to one Chicago judge presiding over a highly publicised case, yes:

The judge in the Illinois case fears that feverish tweeting on smartphones could distract jurors and witnesses when testimony begins April 23.

"Tweeting takes away from the dignity of a courtroom," said Irv Miller, media liaison for Cook County Judge Charles Burns. "The judge doesn't want the trial to turn into a circus."

Burns is allowing reporters to bring cellphones and to send e-mails periodically, a notable concession in a state that has only recently announced it will begin experimenting with cameras in court and where cellphones are often barred from courtrooms altogether.

There's also an overflow courtroom where reporters can tweet freely. But there will be no audio or video of proceedings in the room, just live transcripts scrolling across a screen.

The issue extends beyond journalists to jurors, whose tweets have raised issues of their own across the country.

Last year, the Arkansas Supreme Court threw out a death row inmate's murder conviction after one juror tweeted during proceedings and another slept. Juror Randy Franco's tweets ranged from the philosophical to the mundane. One read, "The coffee sucks here." Less than an hour before the jury returned with a verdict, he tweeted, "It's all over."

Using Google to Choose a Jury

The selection of a jury in the United States can be a complicated matter. In fact, it can at times look like a game. As more and more Americans make information about themselves available via social networks and the like, it was bound to happen sooner or later that clever lawyers would start conducting Google searches on prospective jurors. But is it OK for lawyers to google jurors during jury selection? Recently a New Jersey court answered the question affirmatively.

Stille Nacht an Currywurst mit Grünkohl

I forgot to post this link to an article that Die Zeit ran before Christmas about the revival of interest in German culture among Americans. Since then I have read a few more articles in Die Zeit along the same lines. Anyway, my students studying American law may find this short article to be a nice diversion.

Is A Disgraced Reporter Morally Fit to be A Lawyer?

This is the question currently in front of the California Supreme Court concerning the law license application of Stephen Glass, a former reporter for the New Republic magazine who was fired in the late 1990s after it was discovered that he fabricated most of the articles he wrote for the magazine. The San Francisco Chronicle has more on this fascinating question of how morally fit must one be to practice law in California.