Local Currency

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.

Trying To Keep Up

It has been a busy few weeks for critics and defenders of the Bush Administration as numerous memos and reports related to the use of torture by U.S. officials have been released to the public. Trying to keep up with this flurry of information is daunting . . . but not impossible. Thanks to Foreign Policy Magazine's Passport Blog, you too can try to keep up with the latest news on the "war on terror" and torture. Take a look and remember, this is just the tip of the iceberg.

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.

Torture Docs Released

The Central Intelligence Agency (CIA) released documents yesterday related to torture techniques used by the prior Administration. The follows on the heals of the release of several legal memos by Attorney General Eric Holder that served as the legal basis in justifying the use of torture. ABC News has more.

After the Fall

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.

Parting Thought

Posting has been light because of the semester break. I will resume posting in early April. As a parting shot, I wanted to share a little something from the website of my local paper, which recently had an insert on Barack Obama. The following survey question was on the website for the newspaper:

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."

When Congress Can Reverse the Supreme Court

When is the Supreme Court the law of the land and when is legislative overruling of the Supreme Court appropriate? Today President Obama signed his first bill into law as President. The bill dealt with equal pay for women. More specifically, it dealt with an instance where the Supreme Court interpreted a federal law one way, and Congress turned around and passed a new law which basically said that the Supreme Court's interpretation was wrong (by the way, this is what is meant by legislative overruling). Can Congress do that? Sure, but only when Congress is reversing the Court's interpretation of a FEDERAL LAW. It is different, however, if the Court says that a federal violated the U.S. Constitution. This is what is meant by the Supreme Court is the law of the land. The Court and only the Court has the last say on what is and what is not constitutional. But not every matter deals with the Constitution, and quite often the Court is merely asked to interpret a federal law that has nothing to do with the Constitution. The website Scotusblog has more.

When Family Autonomy Goes Too Far

Students in my Introduction to American Law class recently learned that family law in the United States is primarily regulated by state law. I did, however, give some examples as to when federal law (or more specifically the federal constitution) comes into play in the area of family law. The primary example concerns a liberty interest that is sometimes referred to as familial relations. Put simply, there are some instances when the state, via family law, cannot interfere with the relationship between parents and children. But obviously this has its limits. A recent New York Times piece on parents who are being criminally charged after failing to provide their child with medical care led to her death illustrates the limits. The case concerns parents who believed that only God could heal their sick child. They are now claiming that using child neglect and endangerment laws against them violates their constitutional rights to freedom of religion. This sounds outlandish, but this area of the law is actually still somewhat unsettled in the United States, which is why this case is receiving a bit of attention. The Times piece is a must-read if you are interested in this topic.

Debts and Marital Property

For those of you in my Introduction to US Law class, a recent story in the international press may have caught your eye and made you think. Former Lehman Brothers CEO Richard Fuld apparently "sold" his $13.3 million Florida home to his wife for $100 (or $10 depending on the news story you read). Why would he do that? Isn't it still a marital asset that can be claimed by a creditor? Based upon what we discussed in class, the answer is yes, but as a technical matter the answer is no for a variety of reasons. First, as a general matter, marital debt is shared just as marital assets are. But if shareholders of Lehman obtain a judgement for money against the former CEO, this debt could be considered personal to Fuld alone, not a marital debt. Thus, by transferring the home into his wife's name, it is possible that the home would be protected from creditors of Fuld. Second, Flordia has a law that protects the family home from creditors. Some have agrued that Fuld himself is not a Florida resident but his wife is. Thus, for her this is the family home and it could be protected from creditors under Florida law. You can find a bit more on this here (in German) and here (in English).

The Treaty Power

Earlier this month two former members of the Bush Administration published on op-ed in the New York Times encouraging the Senate to use it's treaty power to keep President Obama check. The argument is simply breath-taking when you stop to consider that these two individuals played an important role in the Bush Administration's power grab after September 11. During their years in service, these two men were part of an effort to create an imperial presidency that had no use for the checks and balances built into the Constitution. They were part of an effort to keep secrets from Congress. They were part of a group that consistently told the Supreme Court it had no jurisdiction to review decisions made by the President.

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.

Rendered to Guantanamo

Students in my Debating Controversial Supreme Court Case class recently learned about one of the cases dealing with the detainees being held at Guantanamo Bay, Rasul v. Bush. Part of our discussion focused on whether the men being held there are/were truly the "worst of the worst" who were "picked up on the battlefield" as the American public was repeatedly told by Bush Administration officials. The New York Times recently ran an article about a former detainee who was picked up in Indonesia and whisked off to Guantanamo as part of the extraordinary rendition program being run by the U.S. government. The other thing you should check out if you are remotely interested in this topic is a radio program put together by the public radio program This American Life. Acts One and Three by Jack Hitt chronicle the lives of a few of the detainees. If these two pieces don't make you question whether Guantanamo housed the "worst of the worst" than nothing will.

It's All About "Hope" . . .

. . . sometimes "change" too. The Economist has a great graph charting the use of the words "hope" and "change" in past inauguration addresses. Interestingly, the Presidents who used the word "hope" in their address the most were mostly Republicans. And only Bill Clinton used the word "change" more than "hope". Check out the graph and then check back after the speech to see how Barack Obama fits into this Hope-o-meter.

UPDATE - the graph on The Economist blog has been updated to include Obama's speech.

King's Vision Fulfilled

Today is Martin Luther King Day in the United States. It is somehow fitting that the inauguration of the nation's first African-American President takes place a day after. I cannot help but wonder whether a recent CNN poll showing that 2/3 of African-Americans feel that King's vision has been fulfilled and the Obama's rise to the presidency are not somehow related. According to CNN:

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?

The Government's Lawyer in THE Court

While students in my Debating Controversial Supreme Court Cases course are tackling the social and cultural issues underpinning many of these controversial cases, I am afraid that I have been lax in explaining what happens when these cases actually reach the Supreme Court for argument. In this post I want to address the role of the federal government in cases that reach the Court, or more specifically the role of the Solicitor General.

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.

The S Word

No, not that S word. I am talking about the one conservatives in the United States like throw around when talking about those on the left side of the political spectrum: Socialist. Students in my Law and Society class may be a bit surprised that some in America still believe there is a Red menace in America. Didn't that become passe with the end of the McCarthy era? Apparently not, at least not for those who get their news from Fox News. Under the headline: "Obama Climate Czarina Was Member of Socialist Group's Environmental Commission," Fox tells it's readers that:

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!

Limiting it's own Reach

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.

Be Back Next Year

Posting to the blog will stop for Christmas break. I will resume posting on or around January 5th.

Amending the Constitution

The American constitution has been changed (amended) only 17 times in the last 221 years. Students in my Introduction to American Law class were told how difficult it is to amend the constitution, but some legal scholars beg to differ. According to a piece in the Wall Street Journal, some scholars think that the founding fathers wanted a constitution that could be amended with relative ease. The article is worth the read if you are at all interested in how the American constitution can be changed.

Gun Control

I just wanted to follow up on the very informative presentation that was given in our Debating Controversial Court Cases class last week concerning gun control. As our presenters noted, Washington D.C., the city whose law was struck down by the Supreme Court as violating the 2nd Amendment, is busy trying to pass new gun ownership restrictions. The Associated Press had a piece on the subject yesterday. It's worth a look if you are interested in the topic.

Presidential Power and the War on Terrorism

What are the limits of Presidential power? The Bush Administration's "war on terrorism" has sought to push the limits of presidential power, and was doing so rather successfully until the Supreme Court started reviewing the question a few years ago. The Administration has now lost three of four cases before the Court concerning their anti-terrorism policies, all of which they say stem from the power of the President. Might the Administration be heading for it's fourth defeat? The Court has decided to grant review in a case dealing with a terrorist suspect who was seized in the United States and has been held in custody for six years without any hint of criminal charges being filed. In short, the question is whether the President can designate someone not picked up on the battlefield as an enemy combatant and detain that person indefinitely. McClathy news service has more on the case.

Student Free Speech

A few weeks ago in my Debating Controversial Court Cases class, we had a lively discussion about the Tinker v. Des Moines case and whether students should have free speech rights in schools. As I mentioned in class, it seems like the Courts deal with this issue often as they struggle to balance the free speech rights of students with the interest of schools to keep order and educate students. A very interesting case was recently argued before the Third Circuit Court of Appeals. The Pittsburgh Post-Gazette reports:

What began as a lowbrow parody of a high school principal goes before a federal appeals court this week.

The case of Justin Layshock, who lanced his principal with an unflattering Internet "profile" created on a home computer, has become a battleground pitting Pennsylvania school administrators against groups that defend free-speech rights.

The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments from each side Wednesday.

Mr. Layshock used his grandmother's computer in December 2005 to create a fictitious profile of Hickory High School Principal Eric Trosch. Mr. Layshock, then a high school senior, made fun of the principal's bulk and implied that he smoked marijuana. Mr. Layshock posted the profile on the Internet social site Myspace.com.

Angered, Mr. Trosch and administrators of the Hermitage School District in Mercer County suspended Mr. Layshock from school for 10 days. After that, they placed him in an "alternative" education program that Mr. Layshock considered inferior.

Seems hard to believe that schools could possibly punish students for speech they engage in outside of school, but the Internet has truly changed the nature of speech. The Philadelphia Enquirer has more.

Executions Hit 14-Year Low

At some point or another the topic of the death penalty has been mentioned in each of my classes this semester. Recently, I was asked about how many executions are carried out each year in the United States. I had to admit my ignorance, and state simply that I knew the number was lower than usual because of a recent Supreme Court case. Thanks to the fine folks at Reuters, who ran a story yesterday about how executions have reached a 14-year low, we now have some answers. Last there were 37 executions, and this new low was indeed partly caused by a moratorium on executions while the Supreme Court decided whether death by lethal injection violated the Constitution (they ultimately decided it does not). But another reason is the continuing decrease in the number of death sentences that are handed out. Some statistics on the death penalty, which states have it, how many executions per states, etc., can be found here.

Police Chief Charged in Boy's Death at Gun Fair

Tragic news from Massachusetts illustrates how the crime of involuntary manslaughter works. A local police chief has been charged with involuntary manslaughter in the death of boy who attended a gun show put on by the police chief. The Boston Globe reports:

A small-town Massachusetts police chief who authorities say promoted, organized and profited from a firearms exposition where children were encouraged to shoot machine guns and where an 8-year-old killed himself with a Micro Uzi was charged Thursday with involuntary manslaughter.

Although the event was promoted as an opportunity for children to fire machine guns under the supervision of certified instructors, 8-year-old Christopher Bizilj had been supervised by a 15-year-old boy who was "knowledgeable about guns" but not certified as a firearms instructor, Hampden County District Attorney William M. Bennett said in outlining charges against Pelham Police Chief Edward B. Fleury and two others.

The elements of involuntary manslaughter under Massachusetts law are:

One can commit involuntary manslaughter through:
(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or
(2) an unintentional killing resulting from a battery.

Impreachment

Students in my Introduction to American Law class know that the President of the United States may be removed from office if he is impeached by the House of Representatives and convicted by the Senate. In the House, impeachment requires a majority vote. In the Senate, conviction and removal must pass with 2/3 of the vote. Ever wonder how the chief executive officer of a state (a Governor) can be removed from office? Well, we may just be getting a lesson on this soon. Yesterday morning the Governor of Illinois (pictured) was arrested by the FBI on corruption charges; the main charge being that he was trying to fill President-elect Obama's Senate seat by choosing the person who gave him the most money. As an aside, the Illinois Constitution gives the Governor the power to fill a vacant U.S. Senate seat. In short, he was trying to sell the position formerly held by Obama. The Governor has not resigned, and from what I know of him, he probably will fight these charges to the bitter end. But the Illinois legislature does not have to wait to the end. They can remove him. According to the Illinois Constitution, the Governor can be removed via a process that is identical to the process used to remove the President. Just in case you were wondering.

The Right to a Speedy Trial

Students in my Introduction to American Law class heard me say last week that the right to a speedy trial found in the U.S. Constitution is almost meaningless. I stand corrected, at least for the time being. Apparently, the Vermont Supreme Court recently ruled that a conviction had to be overturned and the defendant let free because he was not given a speedy trial. The case is currently pending before the U.S. Supreme Court, so my hunch is the right to a speedy trial will return to being meaningless once the Justices get through with this case.

Hate Crimes Against Arabs Down

Students in my "Law and Social Change" class were treated this past Monday to a presentation on the war on terrorism in America. Part of the presentation addressed how Arabs and Muslims were impacted in the United States after September 11. According to the Arab-American Anti-Discrimination Committee, hate crimes incidents against Arabs and Muslims have been steadily decreasing since 2003. This should not be totally unexpected. As with all things related to September 11, the farther away we get from the attacks, the more reasonable the government and people seem to be in their responses to it.

In God We Trust

or maybe I should say to God we give credit. At least that is what legislators in the State of Kentucky say must be part of the Kentucky Department of Office Security's annual report. According to the Associated Press:

The law that organized the Homeland Security office first lists Homeland Security's duty to recognize that government itself can't secure the state without God, even before mentioning other duties, which include distributing millions of dollars in federal grants and analyzing possible threats.

This seems to raise the same question that I ask myself every time I see an athlete praise God after a sporting event. If both teams ask for God's help with winning, do members of the losing team blame God for the loss? In the instance above, if God gets credit for securing the State of Kentucky, might he be blamed should something terrible happen there? Probably not. Instead the blame will be placed at the feet of "abortionists" gays and the ACLU. (follow the link and see quote number one if you are unsure what this means).

Gay Marriage and Direct Democracy

Is the United States a direct democracy? Surely not, at least at the federal level. The President is not elected by "the people" but by an Electoral College. There is no ability for citizen referendum or other direct citizen input at the federal level. And judges are appointed by politicians for life. These are just a few features of the federal government that make it anything but a version of direct democracy. But many states, especially California, do have governments that make them look closer to a direct democracy. In California, citizens can amend their constitution by referendum. Their judges can be voted out of office at the end of their term by the people, and politicians (including judges) can be removed in the middle of their term by recall.

How this idea of direct citizen participation and individual rights co-exist could be put to the test soon in California. Last year the California Supreme Court ruled that laws banning gay marriage violated the California Constitution. In response, opponents of gay marriage were able to get an anti-gay marriage referendum on the ballot. This referendum, which a majority of voters supported in the recent November election, amends the Constitution to prohibit what the Supreme Court said had to be allowed under the Constitution: gay marriage.

So a showdown down between the court and the people appears to be on the horizon. Why? Because the California Supreme Court has agreed to review whether the people's amendment to the Constitution violates the Constitution. And so how have supporters of the people's amendment responded? By saying that they will try to recall any judge who votes to overturn the people's amendment. Confused?

Let's recap. The legislature banned gay marriage. The Court said the ban violated the Constitution. The people then amended the Constitution, overruling the Court. Now the Court is going to rule whether the people's action violates the Constitution. And if they do rule that way, the people are threatening to remove the judges. Simple. Which begs the question. Is democracy, as it is practiced in California, a good idea?

Using Foreign Law

Courts in the United States are often criticized by some when they cite to foreign sources in their decisions. Supreme Court Justice Antonin Scalia is probably at the forefront of this anti-foreign law crusade, and he usually has much to say on the topic when given the opportunity. At a recent event in Houston, Scalia fretted that the U.S. Supreme Court will use foreign law in its decisions at an ever increasing pace. But is it such a bad thing to look at how courts in other jurisdictions deal with issues that are universal? Is this anti-foreign law crusade simply futile? Micheal Dorf at Findlaw has more.

Is Clinton Barred by the Constitution?

There is an interesting question floating around the blogesphere about whether Hillary Clinton is barred by the Constitution from accepting the Secretary of State nomination (a nomination which technically has yet to be made official). You see, Article I of the Constitution basically prohibits sitting members of Congress from taking new jobs in the government if the salary for that job has increased during the current term of the member of Congress. The Secretary of State's salary has indeed increased during Hillary Clinton's current term as U.S. Senator. But this is probably just an academic question. As bloggers over at the Ecomonist point out, it seems unlikely that Republican Senators, after years of watching the Bush Administration play fast and loose with constitutional rights, will hold up Hillary's nomination because of such an obscure part of the Constitution.

Marriage Revisited

I have written in the past about the landmark decision of Loving v. Virginia in which the U.S. Supreme Court stuck down laws banning whites and blacks from marrying. I have also written about how the courts are becoming involved in the issue of gay marriage. But I have yet to suggest that these two cases raise the same issue, although I believe they may. Anna Quindlen of Newsweek has a nice short piece in this week's issue explaining how these cases are basically the same. Surprisingly, the question of whether this is a civil rights issue on par with issues raised by racial discrimination is somewhat controversial. And ironically polls show that a vast majority of African-Americans oppose gay marriage. So give this question some thought. Are laws prohibiting gay marriage the same as those which prohibited people of different races from marrying?

The Minnesota Senate Race Recount

Students who have been paying attention to the aftermath of the recent election in the United States probably know that some races for the U.S. Senate and House of Representatives are still not decided. The Senate race in Minnesota is particularly interesting, as both candidates are challenging the validity of ballots cast by voters. How can this be, you might ask. Well, the Minnesota Public Radio website (this link will take you the pictures) has pictures of some of the ballots that are being challenged. It is fascinating. I encourage you to take a look.

Can Congress Subpeona Bush as Former President?

What happens if the Democrat-controlled Congress wishes to order President Bush, once he becomes former-President Bush, to appear before a Congressional committee to answer for some of the things he did while President? It is clear that the idea of separation of powers in the Constitution precludes Congress from ordering a sitting President to appear. But a former President? The New York Times addressed this question a few days ago, and dragged out this quote from former President Harry Truman:

If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired,” Truman wrote to the committee.

Could it be that even former Presidents can exercise Executive Power? I see Truman's point, but could this apply equally to all of Bush's advisers? I have no doubt Bush would make this argument considering how expansively he has interpreted Executive Privilege.

Next in Line

Most people know what happens if the President of the United States dies in office: the Vice-President becomes the President. But what happens if both become incapacitated at the same time? Better yet, what happens if many of the leaders in government are incapacitated at the same time. How deep does the Presidential line of succession go? The Wall Street Journal has an interesting piece in yesterday's paper about there very questions. In case you were wondering, federal law provides the order of succession:

1. President

2. Vice President

3. Speaker of the House

4. Senate President Pro Tem

5. Secretary of State

6. Secretary of the Treasury

7. Secretary of Defense

8. Attorney General

Of course, constitutional scholars believe this federal law is unconstitutional because the Constitution only talks about the Vice-President and then an officer (many believe this means member of the Cabinet) with regards to succession.

Access to the Court

After a long break, postings to this blog are now resuming. And I'll start with a question raised by students in my "Debating Controversial Landmark Court Decisions" class. This question actually should be of interest to students in all my classes, be it English or law. The question: are television cameras allowed to film oral arguments in front of the U.S. Supreme Court? The answer: No. I actually wrote about this topic about a year ago, but a case is currently before the Court that has made me want to revisit this issue.

The case, Federal Communications Commission v. Fox Television Stations, concerns fines given out by the FCC to the Fox television network. The fines were were for "indecent" language on live television (here is one example from the Golden Globe Awards; at around 5:35 of the clip you can hear U2's Bono utter the "offensive" word).

In the lower courts, lawyers arguing in defense of Fox used the offending words as part of their arguments. One commentator described the arguments as being littered with the talk of seventh grade boys in a locker room. So as time drew near for oral arguments in front of the U.S. Supreme Court, commentators began to wonder whether Fox's attorney would dare to utter these words in front of the nine justices of the Supreme Court. So if televisions are not allowed in the courtroom, then what's the big deal?

Well, a few years ago the Court started allowing audio recordings of oral arguments to be released on the same day of the arguments. But in anticipation of this argument, Chief Justice Roberts has said the audio from this particular argument will not be available until the end of the term. This rather silly attempt to protect the public from naughty words was for naught. The lawyer for Fox decided against filling the hallowed chamber of the Court with F-words and S-words, so the audio of the arguments is "clean." Heaven forbid a few colorful terms be heard over the public airwaves or via mp3 download from the Court.

Ages of U.S. Supreme Court Justices

Students of common law are always surprised to hear about how long members of the U.S. Supreme Court stay in their positions. After all, these are lifetime appointments and many Justices take this seriously. Here is a list of the current and their ages along with a list of the 10 most recent former Justices and their ages:

The members of the current Supreme Court, by age:

John Paul Stevens, 88
Ruth Bader Ginsburg, 75
Antonin Scalia, 72
Anthony Kennedy, 71
Stephen Breyer, 69
David Souter, 68
Clarence Thomas, 60
Samuel Alito, 58
John Roberts, 53

The last 10 justices to leave the Supreme Court, with their age and date of retirement:

Sandra Day O'Connor, 75, Jan. 31, 2006
William Rehnquist, 80, Sept. 3, 2005
Harry Blackmun, 85, Aug. 3, 1994
Byron White, 76, June 28, 1993
Thurgood Marshall, 83, Oct. 1, 1991
William Brennan, 84, July 20, 1990
Lewis Powell, 79, June 26, 1987
Warren Burger, 79, Sept. 26, 1986
Potter Stewart, 66, July 3, 1981
William Douglas, 77, Nov. 12, 1975

Extending Presidential Privilege to the Limit

The words presidential privilege do not appear anywhere in the U.S. Constitution. Yet, the U.S. Supreme Court has consistently held that the President has the right to engage in confidential conversations with his advisers, unless these conversations concern potentially criminal activity. The Bush Administration has pushed the idea of privilege to unseen limits. First, they claimed that discussions between the Vice-President and his advisers could be shielded by presidential privilege, even if the President himself was not involved in the discussions. The U.S. Supreme Court agreed. Then they claimed that internal e-mails between the Attorney General and his advisers enjoyed presidential privilege protection. This remains an open question. And now the Administration is claiming that the privilege allows the President to withhold documents from a congressional investigation into whether he pressured the Environmental Protection Agency to weaken decisions on smog and greenhouse gases. At what point does this idea of privilege interfere with the basic principles of checks and balances contained within the Constitution?

Puting the Cross on License Plates

The State of South Carolina will soon be offering a license plate to its drives with a Christian cross on it, as well as the words "I believe." Anyone who has been to the States might have noticed that one can find a variety of different license plates within a given state. While in Florida last year, I noticed license plates containing environmental themes ("protect our reefs" and "save the manatee"), sports themes (NASCAR, University of Florida, Florida State University) and family themes ("family first" or "family values"). click here for a complete list of Florida specialty license plates.

The question here isn't whether states can have specialty plates, but what happens when one of these specialty plates contains a message that may violate the Constitution. As students in both my classes this semester know, the First Amendment of the U.S. Constitution contains the Establish Clause, among other clauses. This clause has been interpreted by the Court to require some semblance of a separation of church and state. So when a state provides a license plate with an unmistakable Christian symbol on it, does this act violate the Establishment Clause? The courts will most surely be asked to decide this question in the near future.

What Free Speech?

A few weeks ago 34 demonstrators were convicted of violating a law that prohibits holding demonstrations on the grounds of the U.S. Supreme Court. The question this obliviously raises is doesn't such a law violate the First Amendment right to free speech? The answer is probably not. Our discussion in class concerning freedom of speech has dealt mostly with something called "traditional public forums". These generally include streets, sidewalks and public parks. People have an almost unlimited right to engage in speech in this type of forum. But the courts have uniformly held that not all government property can be considered a traditional public forum. In fact, most government property is not considered a public forum and thus speech on this property can be regulated far easier.

Why make a distinction between a traditional public forum and other government property? Generally because the Courts have been sympathetic to the government's position that allowing speech on all government property in any manner would interfere with workings of the government. Imagine if the government had to allow protesters onto military bases or into prisons. Clearly, this kind of expressive activity would interfere with the ability of government to carry out it's mission, whatever that mission might be on the property in question. For purposes of this class, students don't need to know this distinction, but I hope it helps explain why these protesters, who entered the grounds of the Supreme Court, were arrested.

Establishing Obscenity

The Tampa Tribune has a nice piece, which tries to explain how obscenity laws in the United States are enforced. The title of the article, Standards Of Obscenity Are Murky, says it all. As we discussed in Con Law class last week, trying to spot this form of non-speech is not easy. Unfortunately for a pornographer who calls himself Max Hardcore, a jury in Tampa recently was able to weed through this murky area of the law and find his films to be obscene. Which means Mr. Hardcore will soon be serving hard time for violating obscenity laws.

• see also Jurors in Max Hardcore Porn Trial Seek Clarification
• see also Adult Movie Producer Found Guilty in Obscenity Trial

Don't Ask, Don't Tell - An Update

During U.S. Constitutional law lecture a few weeks ago, I used the issue of gays in the military to illustrate how courts generally apply the rational basis test (as you recall, this is the lowest level of scrutiny applied to due process and equal protection claims). Well, it turns out that at least one court now believes that the military's policy of "Don't Ask, Don't Tell" should be judged using a level of scrutiny somewhere between strict and rational basis. Here's why.

A few years ago the U.S. Supreme Court struck down a Texas statute that outlawed consensual homosexual sex. (see Lawrence v. Texas). According to many commentators, and three judges on the First Circuit Court of Appeals, the decision in Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label." In short, the Court didn't use the rational basis test to deal with this law that classified gays and lesbians differently then heterosexual couples, which is how courts had always dealt with such classifications in the past.

But even using this "new" level of scrutiny that falls between strict scrutiny and rational basis, the First Circuit Court of Appeals still found the Don't Ask, Don't Tell policy to be constitutional. How?

The court began it's analysis by noting that "Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied." In short, the Lawrence Court weighed the "protected liberty interest" as noted above, against the state's interest in stopping "immoral conduct." In the end, the Lawrence Court felt that individual right was more important.

Lawrence truly was a departure from past reviews of laws that classified gays and lesbians differently, i.e. using the rational basis test. A rational basis analysis "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law," said the First Circuit Court of Appeals. In Lawrence, the Court most certainly looked at the individual interest at stake.

So the First Circuit Court of Appeals now had to use this new approach to judge the military policy at issue. And they did so rather quickly, saying basically that when it comes to matters of the military, courts have always shown deference to Congress because: 1) Congress is in a much better position than the courts to determine the proper workings of the military and; 2) the U.S. Constitution specifically gives Congress the power to raise and support armed forces. The Court then noted that the policy in question was created after a careful and thorough review noting that Congress:

focused explicitly on the effect that the Act could have on constitutional rights of homosexuals, concluding that "if the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee's judgment as to the effect of homosexual conduct in the armed forces. . . . Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

In short, concerning matters of the military, courts should basically defer to Congress, which is really what Courts generally do when applying the rational basis test. Which begs the question. Did the First Circuit really use something other than the rational basis test in concluding that the policy did not violate the Constitution? It doesn't appear so.

How Not to Conduct a Jury Trial

Students learning about common law sometimes question whether the jury system is an efficient and just way to run a legal system. News out of Sydney, Australia may support the proposition that in fact jury trials are a waste of time, not to mention a waste of money. At least this particular trial was. Yesterday a judge presiding over a three-month-long jury trial that cost the state over a $1 million dismissed the jury before they could reach a verdict because it was discovered that at least four members of the jury spent a good deal of time in the jury box playing Sudoku when they should have been paying attention to the trial. There is no law prohibiting jurors from being inattentive, even if the inattentiveness results in the judge ordering a retrial. Apparently, officials in the state of New South Wales are considering a rewrite of their jury rules that would, at the very least, prohibit jurors from playing games while sitting in the jury box. Probably not a bad idea.

Enforcing Medical Marijuana Laws

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.

So, under California law it is the local government (in this case county government) that must help carry out the medical marijuana law, but the counties are beginning to question whether this is wise (and lawful) in light of the aforementioned U.S. Supreme Court decision. Ah, the joys of federalism.

UPDATE - A California court has ruled that California's medical marijuana laws do not violate federal law saying, "The purpose of the (federal law) is to combat recreational drug use, not to regulate a state's medical practices." It is possible that this ruling will be appealed to California Supreme Court.

Interpreting State Constitutions

As has been noted on several occasions in American Constitutional Law class, an individual state may grant more rights to people under it's constitution than are available under the federal constitution. But there may also be instances where a state constitution places more limitations government. For instance, the United States Supreme Court has held the giving parents vouchers (money) to help pay for tuition charged by religious schools did not violate the Establishment Clause found in the First Amendment of the U.S. Constitution. But many states, including Arizona, have a clause in their constitution that specifically prohibits state money from being used in any manner related to religion. So it was no surprise that the Arizona Supreme Court recently ruled that school vouchers given out by the State of Arizona violated the Arizona constitution. So, to review, the U.S. Supreme Court said this practice does not violate the U.S. Constitution, but the Arizona Supreme Court said that it DID violate the Arizona constitution. Federalism in the U.S. isn't always easy to comprehend.

Picking Judges

Students of American Constitutional Law are by now quite familiar with how federal judges are selected. Thus, it goes without saying that the upcoming President election is important not only because it will determine who the next leader of America is, but is also important because it will likely determine whether the U.S. Supreme Court becomes more liberal or conservative. Syndicated columnist Linda Chavez, with whom I rarely agree, has an interesting article arguing why the issue of judicial nominations should be, but is not, an important criteria for selecting the next President.

States' Rights

By now students in my Constitutional Law class are quite familiar with the federal system of government in the United States. But I cannot emphasize enough the fact that the fundamental rights contained in the Constitution and its Amendments represent the bare minimum of rights enjoyed by residents of the United States.

What do I mean by that? Simple. Government cannot violate these rights. Period. But governments (state and federal) may provide greater rights. How so? A case decided by the California Supreme Court yesterday provides a nice illustration.

The U.S. Congress is on record saying that marriage can only be between a man and woman. Federal courts have generally ruled that this limitation does not violate the U.S. Constitution (although the U.S. Supreme Court has never weighed in on this question). But several states have decided that under their own constitutions, the right to marry is extended to couples of the same sex.

By a 4 to 3 vote, the California Supreme Court said that a California law restricting marriage to only couples of the opposite sex violates the California Constitution. By doing so, the California Court is providing greater rights to gays and lesbians then what is given to them under the U.S. Constitution. In short, the U.S. Constitution sets a floor of rights under which government may not go. But if government decides to provide greater rights, that's fine as there is no ceiling set by the U.S. Constitution when it comes to the states granting fundamental rights under their own constitutions.

War Power

As we discussed last week, the Constitution sets up the potential for conflict between Congress and President when American troops are sent overseas and placed in harms way. Article I clearly gives Congress the power to declare war, but Article II makes the President Commander-in-Chief, which inherently gives him the power to defend the United States without obtaining approval from Congress. Presidents have defined "defend" rather broadly, dispatching troops to places like Panama and Beirut and putting them in war-like situations without getting approval from Congress. I just came across a piece on the English Deutsche Welle site about a case that many of you probably are already aware of. It seems that the German Constitutional Court has settled this question about who has the power in Germany to dispatch troops to foreign soil. Any deployment of German troops to foreign soil must be done with the approval of the Bundestag, so said the Court. There are a number of reasons why it was easier for the German Court to deal with this issue then it would be for the U.S. Supreme Court. For starters, there is much clearer division of power between branches in the United States. Second, as a rule the Supreme Court does not answer "political questions." More on that next week.

No to German National Security Council

In case you missed it, German Foreign Minister Frank Walter Steinmeier has rejected an idea put forth by Chancellor Merkel for the creation of a U.S.-style National Security Council. As you will recall from our last Constitutional Law lecture, the NSC was set up to counsel the President concerning relations with foreign countries. It's no wonder why Herr Steinmeier would oppose such a move. American Secretaries of State (the equivalent of the German Foreign Minister) have generally had cool relations with the NSC. And why wouldn't they? The NSC is basically serving a similar role as the Secretary of State, meaning the Secretary has competition for the President's attention on matters of foreign relations.

The Senate and the Filibuster

Last Monday, students of American Constitutional law were introduced (or possibly re-introduced) to the concept of a filibuster, which is unique to the U.S. Senate. By way of review, a filibuster is a tool that Senators can use to block debate of a bill they do not like. The filibuster itself is basically an endless debate that, because of it's duration (endless), prohibits the Senate from voting on a bill. The filibuster can only be stopped by way of a Cloture vote, which requires 60 Senators to vote in favor of ending the debate. Thus, a super-majority is needed to stop this delay action being taken by a minority of Senators. The mechanics of how this works are not really important for this class, especially considering that the Constitution itself does not grant this power to the Senate; so it's really outside the scope of this class. Nevertheless, there is an article in today's New York Times explaining how Republicans in the Senate are using the filibuster to block a vote on a bill that would make it easier to sue employers for wage discrimination. The article is worth a read if you are interested in how the filibuster can be used.

The Commerce Clause and the Environment

Understanding Congressional power, especially as it relates to the Commerce Clause in Article I of the U.S. Constitution, is not an easy task. My hunch is that many students walked out of yesterday's lecture on the Commerce Clause wondering, "what the heck is LeMieux talking about." As I said yesterday, the central question here is what are the limits of Congressional power? That's really what's at the heart of discussions concerning the Commerce Clause. An excellent example of this concerns whether Congress can pass laws aimed at protecting the environment. As Benjamin Wittes, of the Atlantic Monthly, pointed out in a 2005 article:

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?

His point is, if enough judges on the Supreme Court believe that Congressional power under the Commerce Clause is not very broad, might the Court start striking down laws aimed at protecting endangered animals and wetlands? Good question and one that makes environmentalists in the United States lose sleep.

What is a Secret

During yesterday's American Constitutional Law lecture, I spent a good deal of time discussing the concept of separation of powers, and I noted that the Bush Administration has taken actions over the past several years that raise significant questions about the balance of power in the U.S. government. While these battles between the branches don't receive a great deal of attention here in Germany, one particular case has: the case of Khaled El-Masri, a German citizen who was "kidnapped" by the CIA as part of the Bush Administration's extraordinary rendition program. This case nicely illustrates the interplay between the three branches of government when it comes to something as sensitive as national security.

El Masri's case was dismissed by a federal court because the government claimed his lawsuit involved state secrets. As the Washington Post noted in an editorial earlier this week:

IN RECENT YEARS, a number of possibly deserving litigants have been denied their day in court after the Bush administration claimed that too many secrets would be spilled in an open trial. The cases of people who alleged they were subjected to illegal eavesdropping or were handed over to a foreign country in an "extraordinary rendition" have been fended off in this way.

But now Congress is trying to change this by passing a law that would allow courts to look more closely at the state secrets defense that has been raised in these cases. This is a classic example of one branch (Legislative) trying to place limitations on another branch (Executive) by giving the third branch (Judiciary) more power to check government actions. Whether Congress has the power to do this will be a topic we will address next week.

Until April

This will be my last post until the beginning of the new semester in April. As election news continues to dominate the headlines from the United States, lost in much of this coverage is the debate about how Americans vote. In an earlier post I noted that the U.S. Supreme Court is set to decide a case from Indiana concerning whether a rather strict voter ID law violates the U.S. Constitution. Today's New York Times has an interesting op-ed piece from former President Jimmy Carter and former Secretary of State James Baker. Their solution: require an ID to vote but make this ID free and require states to actively ensure that voters have an ID. While some won't be satisfied with this solution, it seems to me to be a fair and one that has the potential to solve this very divisive problem.

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.

Christmas Break

I won't be posting anything during the Christmas break. I'll be posting again during the second week of January when classes resume.

Gun Rights Go Before the Court

Cass Sunstein, one of America's preeminent legal scholars, had a great editorial piece in last Sunday's Boston Globe concerning what could be the most important Second Amendment case in the country's history. The Second Amendment, for those not familiar with the American Constitution, contains a provision that may or may not provide an unlimited right to own guns in America. Many Europeans are fascinated by the American "gun culture," but few have stopped to ask why owning a gun in America is so easy. The quick answer is the U.S. Constitution talks about gun ownership. Soon the U.S. Supreme Court will define, for the first time in many, many decades, what exactly the Constitution says concerning gun ownership. Prof. Sunstein's article is a must read if you want a basic understanding of what's at issue before the Court concerning this gun rights case.

The Limits of Peremptory Challenges

Students on common law learn early on that one of the more interesting features of the common law legal system is the use of juries. How juries are selected varies greatly from one common law country to another, and arguably the American system of jury selection is the most confusing. In the U.S., the parties themselves have considerable control over the make-up of a jury through the use of something called peremptory challenges. Basically, such challenges allow lawyers to remove potential jurors for any reason . . . except for the wrong reason. So what is a wrong reason? Well, removing someone based solely upon their race is one, according the U.S. Supreme Court in the 1986 case of Kentucky v. Batson. This week the U.S. Supreme Court considered whether a prosecutor improperly excluded all black potential jurors from serving on a jury in a murder case because of their race. The reach of the Batson case has never really been totally clear, and now the Court appears to be ready to provide further guidance. The Christian Science Monitor has a nice summary of the case before the Court and how it could impact jury selection in the U.S.. It's worth a read.

The Secret Circuit

As students in Common Law Legal System recently learned, the United States Court of Appeals is divided into 13 circuits. Eleven of the courts are divided regionally, leaving two court that we did not really discuss in class. The U.S. Court of Appeals for the Federal Circuit is one of these two courts, and definitely the one that even American-educated lawyers may not fully understand. The San Francisco Chronicle recently ran a review of the book The Secret Circuit, which does a nice job of quickly summarizing the book's main premise: what exactly does this court do? If you are interested in patent law and want to understand the U.S. Court of Appeals more fully, you may want to give this book review a quick read over.

Using English Punctuation Correctly

Another gem from wikiHow, this time a quick refresher on using English punctuation properly. Knowing when to use a period (or as the British say "full stop") or question mark is easy. But how about using a semi-colon, colon, or dash? Or the dreaded and often overused comma? This short refresher should help you with some common usage problems; so common that most native speakers could use a refresher or two every-so-often.

The Jury System in Japan

Japan is one of those mixed systems that uses a bit of common law, although it is modeled after the European civil system. Its criminal justice system is undergoing big changes that seek to introduce something that is uniquely common law: juries. Hailed as the "most significant change in its criminal justice system since the postwar American occupation," Japan will begin using juries in criminal trials sometime in 2009. But here's the catch. Traditionally, the Japanese are reluctant to express opinions in public, to argue with one another or to question authority. In short, many Japanese are dreading the idea of serving on a jury. The International Herald Tribune has more on this interesting experiment.

Press Freedom Revisited

A few weeks ago, I posted a piece about press freedom in Germany and the rest of Europe. Obviously, press freedom is a universal issue that impacts every country in some manner or another. In the U.S., there has been an ongoing discussion about the limits of press freedom. Americans were recently reminded of this debate when a video blogger was put in prison for refusing to turn over video he used for a story he posted on his blog. This was on the heals of the case of Judith Miller, a New York Times reporter who was jailed for failing to reveal her source for a story a series of stories she wrote for the Times. In light of these recent high profile cases, academics in America are calling for the Courts to revisit the U.S. Supreme Court's decision in Branzburg v. Hayes, holding that reporters cannot use the First Amendment's freedom of press right to refuse to cooperate with a criminal investigation.

Court TV

Jurists in both America and Great Britain are struggling with whether to allow television cameras into its highest courts. In the U.S., each state has dealt with this question differently; some letting camera into their courtrooms others not. But the federal courts still are a bit camera shy. Questions such as fairness to the parties and whether allowing cameras in will turn the court process into a circus are part of this often heated debate. In Britain, where the court system is undergoing enormous changes, especially at the very highest level with the creation of a new Supreme Court, the question is whether viewers should be allowed to watch Supreme Court proceedings on TV. Obviously, these proceedings are open to the public, i.e. one can go to the courtroom and watch it. Furthermore, other political proceedings are already televised in both Britain and the United States. But some judges aren't buying it. Recently, U.S. Supreme Court Chief Justice John Roberts expressed concern that the camera's in the courtroom would undermine the workings of the Court. However, in Britain it appears that many top judges have no trouble with having their work televised.

Then v. Than

Knowing when to use "then" or "than" isn't one of the recurring problems I see in students' writing. Nevertheless, it's always helpful to receive a little refresher and the WikiHow How-to-Manual has a short little piece that may be of assistance.

Policing Judges

As students of Common Law Legal System in Münster and Institutionen von Staat und Gesellschaft in Osnabrück learn, judges in common law countries, especially in the United States and England, are quite powerful. Many are appointed for life terms (in England, a life term means until the judge turns 70 years-old) and few ever face the threat of discipline, even for the most outrageous of acts. Every so often, however, one comes across a story about a judge who has gone too far. One such story surfaced this past week in Virginia, where a state court judge was removed from the bench for extreme behavior. In this particular case the judge had done things like decide a child custody case by flipping a coin (Münze werfen) and ask a female to take off her pants in court. It's rare that judges get disciplined. So rare that when they do, it's newsworthy.

Judges for Sale

Many states in America select their judges through an open election process. Thus, judges run for the post of judge just as any other politician runs for office. The upside? Judges become accountable to voters. The downside, and there are many? Judges, like other politicians in America, become reliant on campaign contributions. There are two interesting pieces in yesterday's USA Today highlighting the importance of money in the process of electing judges. One piece, written by someone in support of trial lawyers giving campaign contributions to judges makes the argument that if big business interests are giving money to judges, trial lawyers have no choice but to match those contributions in the hope of being able to equally influence judges. A sad commentary on this method of choosing judges, really. The other piece, I think, nicely points out the flaws of this system. Both pieces provide a nice understanding of the problems with electing judges in America.

Wallach: Waterboarding Used to Be a Crime

Students in Münster have the privilege of selecting from a wide range of elective courses during their final two semesters of the FFA. One class offered every winter semester is The Law of War, taught by U.S. Federal Judge Evan Wallach. I've sat in on this class before and I can tell you that it is both timely and fascinating. As a federal judge, Judge Wallach likely feels somewhat constrained as to what he can say about the current "war on terror" being conducted by the Bush Administration. That's what makes his opinion piece that appeared in yesterday's Washington Post extraordinary. As I wrote last week, the issue of whether an interrogation technique called waterboarding is torture has been the focus of the U.S. Attorney General nomination hearings currently taking place in Washington D.C.. Judge Wallach weighs in on this debate with an emphatic YES.

Press Freedom at Risk . . . in Germany!

In American Constitutional Law we learn about the central role that freedom of the press has played in the development of the American constitutional democracy. It goes without saying that press freedom is essential to any democracy. Which is why some of the measures taken by governments after the September 11 attacks in America are troubling. Der Spiegel has an interesting article on how the German government is joining the ranks of countries who are jeopardizing press freedom as part of the "war on terror."

Torture and the Appointment Process

Students of American Constitutional Law learn that the U.S. President has the power to appoint the government's chief law enforcement officer, the Attorney General. Students also know that while the President has the power to appoint, he must also receive the consent of the United States Senate. This nomination process has been playing itself out in Washington D.C. over the past few weeks with President Bush's nominee for Attorney General, former federal judge Michael Mukasey (link to Spiegel article in German), appearing several times before a committee of Senators who are responsible for determining whether the nominee is "qualified." If you have been following this process, which is somewhat unlikely because the German media has not been following it, the central question concerning whether Judge Mukasey should be approved as the new AG is whether he believes something called waterboarding is torture. Seems odd that the process should boil down to this one question, and even odder that Judge Mukasey refuses to give his position on it. So what is waterboarding, you might ask? There was a great piece posted yesterday on the Foreign Policy Magazine blog quoting a person who is very familiar with how the waterboarding technique works. Follow the link below and judge for yourself whether this technique is torture and then ask yourself, why won't Judge Mukasey simply tell the Senators that this technique is indeed torture.

• Ace interrogator: "Waterboarding is torture... period."

The Joke's on Him

Did you hear the joke about the American lawyer who sued a dry cleaner for $54 million because the dry cleaner lost a pair of pants he brought in for $10.50 worth of alterations? Okay, as you probably know it was not a joke. An actual lawyer filed a real lawsuit in Washington D.C. earlier this year over missing pants. And yes the amount claimed in damages was $54 million. The lawsuit was rightfully dismissed, but the damage had been done. This case, and many others, keep the stereotype that many Germans have of Americans as being litigation happy alive and well. According to this stereotype, Americans will sue over just about anything (being served coffee that is "too hot," getting sick from smoking cigarettes or eating fast food, etc.). As I will point out in later posts, while the stereotype of Americans may be fair, it's not limited just to Americans. But back to the dry cleaner lawsuit. You may remember that the lawyer who filed the suit was also an administrative law judge. Well not for much longer, according to the Washington Post.

More on el-Masri

Earlier this week I mentioned the case of Khaled el-Masri and how the U.S. Supreme Court has basically told him that he has no remedy for being wrongly abducted and held by U.S. authorities. Spiegel Online has a nice summary of the Court's decision in both German and English. It's worth read in whatever language you choose. The title of the piece Security Trumps Liberty says it all.

Access to Justice

There is an access to justice problem in Canada, according the country's top judge. The issue, which is not unique to Canada, is the cost of going to court to seek redress for a wrong. According to a recent Toronto Star report, the cost of a routine three-day civil trial in Ontario is about $60,000, more than the median Canadian family income. The Star reports:

In a speech to the Canadian Bar Association yesterday, the country's top judge declared access to justice "a basic right" for Canadians, like education or health care. Although [Chief Justice Beverely] McLachlin has spoken out about the problem in the past, she sharpened her remarks yesterday and went further than she has before, citing what she described as an "increasingly urgent situation." The justice system risks losing the confidence of the public when "wealthy corporations," or the poor, who qualify for legal aid, have the means to use the court system, she said, noting that for "middle-class" Canadians, resolving a legal problem of any significance often requires taking out a second mortgage or draining their life savings.

Others have argued that the problem is "money grubbing" lawyers who are charging excessive fees and lack principles.

More to Come

And yet another semester begins.

Since I last wrote, the branches of the U.S. government have been struggling with how much power the government should have to intercept electronic communication of suspected terrorists. Yet, with the U.S. Supreme Court's recent refusal to hear the case of Khaled el-Masri (a case of particular interest to Germans because el-Masri is a German) and the President's refusal to turn over documents to Congress related to his powerful surveillance program, it appears that the struggle is far from over. But this is really a constitutional law question, and that was last semester. So what's new in the news concerning classes being held this semester? A lot! Over the course of this semester, I will be posting items related to our discussions in class as a way of illustrating that the theory we discuss in class is related to everyday current events taking place in common law countries. Check back regularly.