Removing Their Own

The Constitution Daily blog asks an intriguing question to which my constitutional law students should know the answer: "Can a senator serve in Congress after a conviction in court?" The answer to the question can be found in my lecture slides about the legislative branch or in the above linked to blog post.

Jurors told not to surf the web

Jurors in England will soon be told that surfing the web while serving as a juror in search of information related to the case or parties is strictly verboten. As Law Society Gazette reports:

The juror notice states that it is illegal for jurors 'to look for any information at all about your case on the internet or anywhere else during the trial or to have anyone else look for you'.

Jurors cannot look for any information about: any person involved in the case, including the judge and legal teams; the law and legal terms used in the case; the crime or crime scene; and court procedures.

England Considering Raising Small Claims Court Limits

Students in my introduction to common law courses learn that England has a multi-tiered system of civil procedure. At the one extreme are the complex cases where the parties have the ability to undertake all kinds of pre-trial preparation. At the other end is are the small claims cases where the amount is so small that it makes no sense to hire a solicitor. In between is a tier where the process is probably too complex for a claimant or defendant to appear without representation.

At the moment, personal injury claims with potential damages of more than £1,000 are barred from the small claims process and must be heard using the more expensive and complex middle tier process. Recently, the Ministry of Justice announced that it would like to raise the limit to £5,000. This would result in more cases being heard using the small claims process, a process that normally does not require parties to hire legal representatives. As the Law Society Gazette points out, The Law Society is none too pleased about this development, claiming that it will result in courts becoming clogged and parties obtaining less for their injury than they otherwise would. Of course, solicitors also will lose some business.

Follow the link to the Law Society Gazette to obtain a better understanding of how this system works and what these changes might mean for parties.

England Raises Maxmimum Age for Jury Service

News items in the Daily Mail don't usually catch my attention, but one from a few days ago did and will also be of interest to students in most of my courses. The headline: "Top age limit for jurors to rise by five years to 75 from next month - adding THREE MILLION people to the jury 'pool'" The article goes on to give some interesting facts:

It is thought the move to introduce a new upper age limit - first proposed in 2013 - could add an estimated three million eligible 70 to 75-year-olds to the overall jury 'pool', meaning the number rises by a tenth from around 31 million to 34 million.

Roughly 178,000 people in England and Wales undertake jury service each year. Officials estimate that between 3,000 and 6,000 of the average annual jury service number would be aged between 70 and 75 after the change.

Making Sense of the High Court's Brexit Decision

Brexit was back in the news yesterday as the High Court handed down a decision that could force the UK government to bring the question of whether to invoke Article 50 before the full Parliament. I am on shaky grounds here writing about this because the case deals with British constitutional principles that are a bit over my head. I write only to clarify something students in some of my courses have heard me say in class: courts in England do not have the final say on what the British Constitution says.

To understand this case and how the question of law facing the court does not contradict what I have said in class, one must first realize that the government was trying to make a decision on its own without first getting approval from Parliament. Put differently, Parliament was not being allowed to have any say on the issue. Furthermore, the constitutional principle being applied by the government was one created by "convention" (basically tradition) whereby the executive (formerly the King) can make decisions under certain circumstances without first getting the approval of Parliament (See this BBC piece for a bit more context).

As the High Court decision notes, "the most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses." So far so good. The Court then goes on to note that no constitutional convention allows the government to override legislation passed by Parliament. Clearly this is also true. Finally, the Court claims that the decision to exit the EU would override legislation passed by Parliament in 1972 that basically allowed EU law to be incorporated into and ultimately in most case be superior to laws passed by Parliament. The court notes that both parties to this case agreed that the the question of whether the government is violating parliamentary sovereignty is one for the courts.

In short, what I said in class still stands: Parliament has the final say over whether the laws it passes are constitutional. However, the courts can weigh in when the claim is that the government is exercising a constitutional convention in a manner that violates concepts of parliamentary sovereignty. At least I think that is what the court is saying.   

Minority Judges in England

My favorite UK legal blog "Legal Cheek" recently reported something we talked about in my course "Introduction to Common Law Legal System," namely the dearth of minority judges in England.

Stats from the Judicial Appointments Commission show that, of the lawyers who applied to be recorders (low-level judges) last year, only 10% of BME candidates were ever shortlisted. This is compared to 20% of white candidates. Of those who made the shortlist, 29% of BME lawyers were recommended for appointment. This is 17 percentage points less than the corresponding figure for white lawyers (46%).
It should also be noted that, since 2012, not a single BME candidate has applied to or been appointed to the Court of Appeal.

One reason cited for the changes made by the 2005 judicial selection reforms was the desire to diversify the bench in England. While the bench most surely has become more diverse, it appears that there is still a lot of work to do.

Only a Third Find Pupilage

Students in my Introduction to Common Law class know that a step in becoming a barrister is securing a pupilage, the practical training step at the end of the long road to becoming a barrister. In class I have stressed how difficult it is to secure such practical training, and a recent study has shown just how difficult it really is. The English law website Legal Cheek notes:

The statistics, published today by the Bar Standards Board (BSB), show that 35% of all UK/EU domiciled grads that started the Bar Professional Training Course (BPTC) in the academic years commencing in 2011-2013 have gone on to gain pupillage.

The article goes on to discuss how diverse the Bar is becoming:

On the diversity front, the report shows that the number of women progressing to a career at the bar is similar to men; 47% of pupillages were awarded to women. It must be borne in mind that more women are enrolling on the BPTC in the first place, which may suggest that men have a greater chance of success. It’s also speculated that white aspiring barristers are more successful in finding pupillages than black ethnic minority (BME) candidates, but “more research is needed to determine whether and, if so, why this may be the case”.

Did Jury Nullification Just Get a New Influential Supporter?

If there is any aspect of the use of juries in the common law system that confuses non-common law students, it is the concept of jury nullification. How can it be, ask many students, that the jury can simply ignore the law? Recently, U.S. Supreme Court Justice Sonya Sotomayor weighed in on the topic. Reason.com reports that the Justice had "kind words" for jury nullification, albeit measured words, when she was asked about a recent federal court case where the judge dismissed a juror who apparently could not bring himself to voting to convict suspected drug dealers:

"In United States v. Thomas, the 2nd Circuit heard a challenge to a judge's dismissal of a juror in a federal drug case who resisted finding the five defendants, all of whom were black, guilty of selling crack. After interviewing the jurors, the judge concluded that the holdout, who was the only black member of the jury, had "immoral" motives because "he believes that these folks have a right to deal drugs, because they don't have any money, they are in a disadvantaged situation and probably that's the thing to do." The judge added that "I don't think he would convict them no matter what the evidence was." 

The 2nd Circuit rejected the juror's dismissal, saying the judge did not give sufficient consideration to alternative explanations for his resistance. But it also said the dismissal clearly would have been justified if the juror was in fact determined to acquit the defendants regardless of the evidence. "As an obvious violation of a juror's oath and duty," the court said, "a refusal to apply the law as set forth by the court constitutes grounds for dismissal."

Perhaps the most interesting part of this is the fact that the federal appeals court also seems to be saying that jury nullification has no place in American federal courts. And here is where Justice Sotomayor seems to come out in favor of jury nullification, noting that the court of appeals probably got the case wrong. The short story here is jury nullification exists, but most judges certainly do not like it and some even believe its use is prohibited.

Racism in the UK Bar

One of my favorite UK legal website, Legal Cheek, has a post directing legal watchers to a video interview of England's first black female High Court Judge. Legal Cheek goes on to say:

Dame Linda Dobbs has exposed shameful incidents of racism and sexism at the bar, particularly from her own clerks, in a revealing interview for the First 100 Years project — an ambitious video history which aims to highlight and celebrate the achievements of female lawyers in a profession long dominated by men.

A link to the video interview can also be found on the Legal Cheek website.

Failing to Answer as a Strategy

A quick review of how a case is filed in common law countries. The plaintiff begins by filing a pleading called a complaint (or claim in England), which states the facts of the case (from the plaintiff's perspective) and the legal claims. The next step calls for the defendant to file an answer to the complaint. In class we learned that failure to file this answer will usually result in the plaintiff winning the case. In the United States this is often referred to as a default judgment or in England a judgment in default. Recently the Chelsea Football Club was sued by one of its employees. After receiving the claim, Chelsea opted not to file an answer, thus resulting in them losing the case. An amateur mistake made by the football club's high paid legal advocates? Not all. To learn why check out this post at Legal Cheek.

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.

Too Much Independence?

The main purpose of the 2005 constitutional reforms in the United Kingdom, which created a new Supreme Court, was to increase the independence of the judiciary. But now some three years into this constitutional experiment, some are questioning whether the Court has become too independent. The Guardian has more.