Taking the Fifth

The Constitution Center has a great post explaining what "taking the Fifth" means:

Someone pleading the Fifth Amendment in a public proceeding is ingrained in our popular culture, thanks for decades of movies, television shows, and public hearings where the accused defiantly refuses to testify in a moment of high drama. In reality, a person isn’t pleading the entire Fifth Amendment, but just the part that refers to self-incrimination.

The post goes on to explain how this right was expanded to state court proceedings and hearings beyond the criminal courts. FFA students should take particular note of this article, as it touches upon concepts that you most certainly will be exposed to during your FFA studies.

No Bar Exam Required

The State of Iowa is considering joining Wisconsin as the only states to allow graduates from in-state law schools to start practicing law immediately after graduation. No practical training, no bar exam! The Des Moines Register has a short article explaining the proposal:

Graduates of Iowa’s two law schools could begin practicing law in the state soon after graduation rather than waiting until they pass the bar exam, under a proposal before the Iowa Supreme Court.

The proposal would apply only to law school graduates who stay in Iowa to work. Law school graduates would still have to pass an ethics exam and screening and background checks, according to the proposal. It also would require students to take an Iowa-specific law and procedure course.

Loser Pays Coming to America?

For the most part, the U.S. court system has tended to reject a loser pay system. As a general rule, each side is responsible for covering the cost of their legal representation, regardless of who wins. There are of course exceptions to this general rule, normally set forth in statutes that require a defendant in certain circumstances to pay the legal fees of the plaintiff should the plaintiff prevail.

But the problem of "patent trolls" is making the federal courts and Congress rethink their aversion to a pure loser pay system. Bloomberg News has more on this developing story.

Federal Courts Divided Over NSA Spy Program

Two recent decisions by lower federal courts illustrate a big difference between how the court systems in the U.S. and Germany operate, at least the constitutional courts.

In Germany, the Basic Law allows for individuals to apply directly to the Constitutional Court if they believe state actors have violated one of their constitutional rights. This centralized form of judicial review has the advantage of avoiding the problem raised by the title of this post: namely two lower courts applying the constitution to similar facts in a different manner.

In the United States, on the other, where the constitution does not explicitly call for the creation of a constitutional court, questions concerning whether one's constitutional rights have been violated by state actors are answered by lower federal courts. The result, as is often the case, is a similar set facts can come before two different courts, and these courts can come to polar opposite conclusions.

Andrew Cohen's recent article in The Atlantic entitled "Is the NSA's Spying Constitutional? It Depends Which Judge You Ask" highlights how a decentralized system of judicial review can be messy at times. Of course, both the lower court decisions to which Cohen is alluding will be appealed, and eventually an important question of constitutional law like this one will be heard by the nation's highest court, the U.S. Supreme Court, so even in a decentralized system of judicial review, important questions of constitutional law are eventually settled.

For more on these NSA cases see Cohen's interview on PBS news and this article in the Süddeutsche Zeitung.