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.

Another English Judge Questions Legitimacy of ECHR Rulings

Last week I linked to an article where a senior English judge questioned whether English courts should have to follow rulings issued by the European Court of Human Rights. A few days ago the former head of the English judiciary made a similar remark:

Declaring that Strasbourg "is not superior to our supreme court" in London, Lord Judge, who retired in October, said parliamentary sovereignty should not be exported to "a foreign court".

He is the third senior judicial figure in recent weeks to warn about the dangers of an emerging "democratic deficit" if the ECHR continues to evolve into in effect a law-making body and forces the UK government to give prisoners the vote against parliament's expressed will.

U.S. Federal Appeals Process

I recently came across an article headlined "Appeals court upholds law banning political ads on public broadcasting." When I read deeper into the article, I came across this passage:

Previously, a three-judge panel of the appeals court struck down the ban on political advertising but upheld the ban on for-profit advertising. But the federal government sought a rehearing in front of the full panel of judges.

This is an excellent example of an en banc hearing before a federal court of appeals, although the phrase "en banc" appears no where in the article. Remember, when one loses in the appeals court, one has two further options for appeal, either file a request with the Supreme Court (the normal route) or ask the full bench of the appeals court to review the ruling made by the three judge appellate panel. That is what happened here.

As an aside, being granted either form of appeal is extremely rare.

What is the D.C. Circuit?

Students learning about the structure of the U.S. federal court system probably focus more on the geographical divisions of the appeals court more than any other aspect of the system, primarily because that is something upon which I put particular emphasis in our lecture about the system.

While I do mention that there are two other Courts of Appeal in addition to the 11 regional appeals courts, I really do a disservice to the D.C. Court of Appeals by not talking more about it. This court is arguably the second most important court in the federal court system for the reasons set forth in an excellent Q&A put together by The Blog of the Legal Times. Students interested in obtaining a deeper knowledge of the U.S. federal court system should give this a read.

English Judge Questions Supremacy of Human Rights Court

The UK's longest serving Court of Appeal judge is causing a bit of stir in English legal circles. As part of a series of lectures, Sir John Laws (high courts judges automatically obtain a title upon appointment to the court) said, "I have, in common with others, come to think that this approach [treating Strasbourg decisions as authoritative] represents an important wrong turning in our law." Coverage by the Guardian also notes:

Laws, the longest-serving lord justice of appeal, questioned an important principle laid down nearly 10 years ago by Lord Bingham, who was then senior law lord.

In a case called Ullah, Bingham had said that the correct interpretation of the convention could be authoritatively expounded only by the human rights court in Strasbourg. "The meaning of the convention should be uniform throughout the states [that are] party to it," Bingham added.

But Laws disagreed. "There may perfectly properly be different answers to some human rights issues in different states on different facts. I think the Strasbourg court should recognise this."

 The remainder of the article is worth the read.

Salon.com has an incredible take down of the American legal education system:

Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000.

The remainder of the articles goes on to describe American law schools as being " toxic and hyper-capitalist," and in the long run a bad investment. It is a long read, but perhaps the contrast between the author's view of U.S. law schools and your own experience here in Germany might be of interest to you.

When You Don't Want the Supreme Court Take Your Case

We sometimes forget that one of the two parties whose case is being petitioned to the U.S. Supreme Court actually would rather the Court not take their case. Of course this is because one of the parties won in the Court of Appeals. The Washington Post has some recent examples of this desire to have your case rejected.

Taking A Case to the U.S. Supreme Court

It isn't easy. At least that is what these young Iowa attorneys say in this very well done short article about their journey to the U.S. Supreme Court.

German Asylum Case Headed to Supreme Court?

A recent press release from the Home School Legal Defense Association (HSLDA) gives us the details of this unique case that might be headed to the United States Supreme Court:

In April 2013, a three-judge panel of the Sixth Circuit Court of Appeals sustained the Obama administration’s revocation of asylum granted to the family in 2010.

The original immigration judge, Lawrence O. Burman, granted the Romeike family asylum on January 26, 2010, under the Federal Immigration and Naturalization Act (INA) because Germany’s national policy of suppressing homeschooling violated their religious faith and because German authorities were improperly motivated to suppress homeschoolers as a social group.

In its ruling against the Romeikes, the Sixth Circuit rejected the judge’s findings, stating that Germany’s harsh treatment of homeschoolers did not amount to persecution, and that the German authorities were not motivated by an improper purpose.

After losing the Court of Appeals, the normal route is to request a hearing before the U.S. Supreme Court. As students will recall, a hearing before the highest court is not a matter of right. Instead, the Court grants permission to only those cases it wishes to hear. It takes four of the nine Justices to agree to hear the case in order for it to reach the Court, and of the thousands of requests that the Court receives each year, usually only around 75 are heard.

Court TV Revisted

I have written on a few occasions about the debate over whether court hearings should be televised (see here and here). While the debate rages on, more and more courts are opting to open up their courtrooms to television: the latest high profile court being the UK Court of Appeal! The BBC has more with a video!

The Origin of Judical Lifetime Appointments in the United States

A quick reading of the U.S. Constitution might leave one puzzled as to how long federal court judges are allowed to serve. No where in the document does it specifically say that federal judges are lifetime appointments. Instead, the Constitution mysteriously says that judges shall serve "during good behavior." Lyle Denniston, veteran Supreme Court watcher, explains how this phrase came to mean lifetime appointment.

Reigning in lower court judges

Judges in the federal courts system of the United States must abide by a judicial code of conduct, and when they deviate from that code, they can be removed from a case, as one U.S. District Court Judge recently found out.

Time for a Change?

It is now a time honored tradition for American academics to every now and then call for a new constitution in the United States. The 224 year-old document that has changed little since its ratification has served the country relatively well, many argue, but in light of today's extreme political partisanship, it's time for a change. A recent piece in The Atlantic makes this argument, and also suggests that perhaps there is a model for what works in a modern democracy. The model? Germany's Basic Law!

The Infamous McDonalds Coffee Case

Perhaps one of the most misunderstand stories of the American legal system and American legal culture.

Quid Pro Quo?

A report recently released by the Wisconsin Center for Investigative Journalism finds that judges in Wisconsin tend to rule in favor of attorneys who gave them campaign donations. Wisconsin, as you might have already gathered, is one of those states that elect their judges. And as you also might know, campaign donations play an enormously important role in the modern American electoral system.

The Impact of European Law on England

The impact of European law, in this case a ruling from the ECHR, EU law, and English law was on full display last week as the UK Supreme Court ruled that a right to vote for prisoners does not exist. An earlier ruling by ECHR said that a blanket ban on voting rights for prisoners, like the one that exists in England, violates European human rights law, but the UK Supreme Court refused to enforce this right in the United Kingdom. The BBC, Guardian, and Euro News have more.

Getting Before the Supreme Court

Having your case heard before the United States Supreme Court is no easy task. In fact, as this USA Today article points out, its down right almost impossible.

New Rule: You Must Be a Lawyer to Argue a Case in the Supreme Court

This seems like stating the obvious, but up until recently, there was nothing prohibiting non-lawyers from arguing cases before the U.S. Supreme Court. While this hasn't happened in over 30 years, technically non-lawyers could argue cases brought on their own behalf before the Court. Until now. The AP has more.

Why Electing Judges is a Bad Idea

Nothing shocking here. According to a recent study, judges are more likely to give friendly rulings to those individuals and corporations that donate to their election campaign. As students in my courses will recall, many states elect their judges! More on the study can be found here.

The Supreme Court's troubling past

The Washington Post's George Will recently devoted one of his columns to the
Korematsu case. Students in my Constitutional Law course might want to take a look at this piece as it relates to what we will be discussing on Thursday.

Original Jurisdiction

The Desert News had a recent article that began by saying "The U.S. Supreme Court is set to hear arguments Tuesday in a case that could have implications for states that rely on interstate water compacts." The case in question concerns a water rights dispute between six western states, and is an excellent example of case that begins and ends in the U.S. Supreme Court, as the Court has original jurisdiction to hear disputes between the states.

If you are reading the words "original jurisdiction" and asking yourself what that means, it is time to go back and review your class notes.

Jury Nullification in Action

For those students interested in reading about a case where jury nullification was used to find a defendant not guilty, take look at this post.

More on the UK Supreme Court

I just came across this nice little introductory video about the UK Supreme Court. According to its website:

This introductory film is primarily aimed at GSCE/Standard Grade students and explores the role and the workings of the Supreme Court, the only court with UK-wide jurisdiction and the highest court in the land. It explains its relationship to the Judicial Committee of the Privy Council, the highest court for British Overseas Territories and a number of Commonwealth countries.

The Right Jury Size

More on juries, this time related to the size of juries in the United States. Slate Magazine recently ran an interesting article on jury size noting that all but two states require juries that contain 12 people to give unanimous verdicts. The article runs down nicely how the Supreme Court has ruled in the past regarding jury size:

Isn’t a verdict in a criminal trial supposed to be unanimous? The answer is yes in 48 states and yes if the case is tried in a federal court. But two states, Oregon and Louisiana, allow convictions by a non-unanimous vote. In both states, the threshold in non-capital cases is 10 to 2.* Arguably, Herrera had to go to jail for the crime of living in Oregon.

The Supreme Court has allowed this conflict between federal and state law (as well as between state law and conventional wisdom) to persist for more than 40 years, during which time it has come up with a mishmash of seemingly arbitrary rules about what constitutes a legal trial. A jury of six, the Supreme Court has decided, is constitutional (Williams v. Florida, 1970). A jury of five, however, is not constitutional (Ballew v. Georgia, 1978). In a jury of six, conviction must be unanimous (Burch v. Louisiana, 1979). But in a jury of 12, conviction does not have to be unanimous (Johnson v. Louisiana and Apodaca v. Oregon, 1972). (At the time of these decisions, Louisiana required a 9-to-3 vote to convict in non.capital cases, which the court upheld as constitutional. The state has since changed its threshold to 10 to 2.)

Learing to love Jury Duty

Students in all of my courses have at some time or another been exposed to the common law jury system. Some argue that a strength of this system is the ability for everyday people to take part in the administration of justice. Yet, many Americans dread being called for jury duty. In a recent Atlantic post, Andrew Guthrie Ferguson argues that Americans need to embrace, not dread jury duty. He writes:

A jury summons is an invitation to participation. Jurors are asked to involve themselves in some of the most personal, sensational, and terrifying events in a community. It is real life, usually real tragedy, played out in court. Jurors confront disturbing facts, bloody images, or heart-wrenching testimony. A jury may have to decide whether a man lives or dies, or whether a multimillion-dollar company goes bankrupt. A jury will have to pass judgment in a way that will have real-world effects on both parties before the court. This active role was not accidental. Participation in jury service teaches the skills required for democratic self-government. Being a juror lets you develop the habits and skills of citizenship.

The "Informal" UK Supreme Court

The Financial Times recently ran an interesting piece on the UK Supreme Court subtitle: "The most striking fact about this place is its informality. Grandeur and remoteness have been swept away." Students in my "Juristische Technik und Methodik des Common Law" course in Münster my find it interesting.

Listening to the Supreme Court

Ever wonder what oral arguments in front of the U.S. Supreme Court sound like? Wonder no longer. NPR reports, fittingly via a podcast of a segment from one of its radio programs, that the Oyez Project now has digitized oral arguments heard before the Court dating all the way back to 1955! The manner in which arguments are conducted before the Court have changed dramatically over the past several decades. As a point of reference, take a quick listen to an argument from the early 1960s and then compare that to a recent argument. Today's Justices are much more active with their questioning. That is except for one. Justice Clarence Thomas has famously not asked a question during oral argument for several years now.

Agency Alphabet Soup

Early on in the massive manhunt for the suspects involved in the Boston Marathon bombing, the Atlantic ran an interesting piece entitled "The Alphabet Soup of Agencies Hunting in Boston." Students in my American Administrative Law course last week heard me say that the structure of agencies in the United States amounted to a web of various agencies with overlapping responsibilities. This manhunt and the agencies involved in it provides an excellent example of what I was talking about:

A Lawyer Shortage in America?

Normally when one thinks of lawyers in America, one thinks of a glut of lawyers. With good reason. America has more lawyers per person (1 lawyer for every 265 people) then any other country in the world. For comparison sake, Germany has 1 lawyer for 593 people.

But there appears to be a lawyer shortage in some parts of America. The New York recently ran an interesting article about a remote parts of Nebraska and South Dakota where no lawyer can be found for more then a 100 mile radius. The situation is so desperate that the State of South Dakota recently passed a law offering subsidies to those lawyers willing to move these remote parts of the state.

Shakespare famously wrote "the first thing we do, let's kill all the lawyers." But in South Dakota they are looking to kill, rather they are looking subsidize their existence! 

Law School Applications Drop in U.S.

The Atlantic has a fascinating piece on how law school applications in the United States have dropped to a thirty-year low. A few bullet points from the article:

• applications have dropped 38% from where they were in 2010.
• the average public law school graduate left school with over $75,000 in debt from tuition costs.
• the law profession is bloated and there are no jobs to be had.

Those interested in getting an idea of what American law students face upon completion of their studies should give this article a glance. 

Floating Home or Residential Boat?

Students attending my courses this semester surely remember the floating hotel v. floating train analogy I used during our discussion about divergent lines of precedent. To drive home the point, I then moved on to a real case involving a recreational vehicle (RV) and lines of precedent involving exceptions to the search warrant requirement, one line dealing with cars, the other dealing with homes.

Just this week the U.S. Supreme Court had a similar issue before it involving a house boat. The question was whether the vessel should be considered a residence or a boat. The characterization of the vessel obviously would lead the Court in two different directions (otherwise the case would not have made this far in the system), and it was up to the Court to determine whether this was a boat or a home.

The Washington Post has more on this case.

Political Judges

Are judges in America actually politicians? This is a question posed by former Obama Administration official and renowned law professor Cass Sunstein in a recent essay published by Bloomberg News. What Sunstein is really asking here deals more with the role ideology plays in judicial decision making, but the point is well taken and worth consideration. The essay is highly recommended.

Precedent at Work

In all of my courses this semester we have spent at least a portion of our time discussing how precedent operates in the common law system. One of the concepts I have tried to make clear is the role that reasoning by analogy plays in the development of case law. The California Supreme Court, in the case of Nawal v. Cedar Fair, L.P. (the ruling can be found here), recently gave us a nice example of how reasoning by analogy can be used to extend a common law principle.

The L.A. Times nicely sums the case up so:

The ruling came in a lawsuit by Smriti Nalwa, who fractured her wrist in 2005 while riding in a bumper car with her 9-year-old son and being involved in a head-on collision. Rosenberg said Great America had told ride operators not to allow head-on collisions, but failed to ask patrons to avoid them.

The court said Nalwa's injury was caused by a collision with another bumper car, a normal part of the ride. To reduce all risk of injury, the ride would have to be scrapped or completely reconfigured, the court said.

"A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions," Justice Kathryn Mickle Werdegar wrote for the majority. "Those who voluntarily join in these activities also voluntarily take on their minor inherent risks."

Monday's decision extended a legal doctrine that has limited liability for risky sports, such as football, to now include recreational activities.

The legal doctrine at issue is the common law (i.e. judge made) principle of assumption of risk, whereby someone who undertakes an activity knowing of the risks involved cannot later sue the person who organized or oversaw the activity. Up to this point, California courts had apparently limited the use of the doctrine to risky sports, but in this case they drew an analogy between risky sports and risky amusement park rides and found them to be sufficiently similar to allow for an extension of the doctrine.

The Right to Bear Arms

In the wake of the tragic events that unfolded last month in a Connecticut elementary school, the German press has highlighted the gun culture in America and how the U.S. Constitution seemly makes it quite difficult to put limitations on this culture. At issue, of course, is the Second Amendment to the U..S. Constitution, which states:

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.

The meaning of this awkwardly written sentence has been argued from the halls of academia to the chambers of the U.S. Supreme Court. And the arguments appear to be more about grammar and punctuation then anything else, as a recent post at the University of Pennsylvania's "Language Log" reminds us.

This post is a must read for anyone who is interested in the debate about how the Second Amendment can be interpreted and the role that language plays in this debate.

The Two Headed Supreme Court

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

Gun Control in America

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

More on Judicial Recusal

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

The Politics of Appointing Judges

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

Too Hard to Change?

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

Recusal

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

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

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

Finding A Lawyer

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

Green Rush

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

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

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

The Price of Electing Judges

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

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

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

What Happens in the Event of A Tie

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

The Role of Campaign Contributions in American Politics

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

Much More Than the Presidency is at Stake

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

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

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

How We Pick Our Judges: Missouri Style

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

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

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

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

All About the Swing States

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

Everything You Need to Know About Presidential Debate History

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

Engel v. Vitale at 50

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

When Government Breaches for Non-Payment

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

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

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

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

The Court is an Issue

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

No One is Popular

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

Time for a Fix?

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

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

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

Not Again

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

Election Time is Fast Approaching

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

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

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

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

Time for a Change?

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

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

 Among the ideas suggested: scrap elections of judges!

Do Away With Life Tenure?

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

The Electoral College

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

Jury Nullification. Unlawful?

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

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

The Veepstakes

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

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

Kiffen gegen die Staatskrise

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

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

Tweeting in the Courtroom

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

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

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

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

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

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

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

Using Google to Choose a Jury

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

Stille Nacht an Currywurst mit Grünkohl

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

Is A Disgraced Reporter Morally Fit to be A Lawyer?

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

TV's in the Courtroom

Whether TV cameras should be allowed in the courtroom during hearings before the Supreme Court (both UK and US) has been a hot topic in both America and England as of late. In America, it appears that Congress is trying to pass a law that would require the high court to televise its hearings. But can Congress really force the Court? A very good article in the Christian Science Monitor asks this question.

What They Don't Teach in Law Schools: Lawyering

The New York Times ran a piece this weekend with the above headline. This is a nice addition to our discussion in class (except for my Introduction to English Law course) about becoming a lawyer in the United States.

How Powerful is the Federal Government?

As I mentioned last week in my Introduction to American Law course, questions concerning federalism in the United States are really now questions about how powerful the federal government can be. The New York Times ran a great piece this past weekend about this question of government power in the context of President Obama's effort to provide all Americans with health care. Give it a read and see if you can follow the arguments being made.

Juries in the Age of Facebook

The Chicago Tribune recently ran a fascinating piece about whether a juror's blog postings impacted the fairness of a trial.

Judges have long instructed jurors not to talk about their jury service with anyone, including fellow jurors, and to avoid reading newspaper stories about trials. The fear is that jurors might develop a bias from information that's not been admitted in court. The right to an impartial jury is one of the principles of the American justice system.

But that right is threatened in a digital age when people post personal thoughts onto the Internet, whether on a blog or social networking sites such as Facebook and Twitter. It's also become second nature to satisfy curiosities by searching for immediate answers on the Internet.

The article goes on to discuss issues like jurors using Google Street View to visit the scene of a crime, something they are physically prohibited from doing, but virtually? It gives an example of a murder conviction being overturned because a juror consulted Wikipedia as part of the deliberation process. The questions raised in this article are numerous and important!

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.

Finding a Rational Basis to Prohibit Gay Marriage

The struggle of gays and lesbians to obtain full marriage rights is now a legal battle being fought in the courts. The questions facing the court are numerous and all grounded in the U.S. Constitution. For instance, the U.S. Supreme Court has recognized an implied constitutional right to marry. So does this also apply to gays and lesbians. So far the courts have said no. Does prohibiting gays and lesbians from marrying violate the Equal Protection Clause? Well, it depends how you analyze it. Under current Supreme Court precedent, the question must be analyzed using the Rational Basis Test. Under this test the plaintiff must prove that the government does not have a legitimate interest in passing the law and/or the means used to achieve the government interest are not rationally related to the interest itself. The primary argument used by opponents of gay marriage is that the government has a legitimate interest in encourages only those partnerships where procreation is possible. But as this article in Slate magazine points out, perhaps prohibiting gays from marrying is not rationally related to this interest.

When Will They Learn?

Hardly month goes by without the news reporting some case of a person being arrested and charged with a crime for swearing in public. Time and time again the courts throw these cases out on the basis of the First Amendment's free speech protection. It makes me wonder whether prosecutors have ever read the Constitution. This recent case out of Arizona is a nice example.

Judicial Review Under Review

Dahlia Lithwick of Slate Magazine recently asked whether legal arguments over President Obama's health care reform should make us question the role of the courts in our system of government. The article is really about the politicization of America's "independent" judiciary, and provides one view how American courts are being impacted by outside influences, and whether this development (if in fact it is something new) should make us reconsider judicial review.

Can Private Parties Enforce Federal Regulations?

As with most questions in American Administrative Law, the answer is it depends. It depends on what the enabling statute (the statute either creating the agency or the agency's task) says. The law blog JURIST has a good example of a statute that allows private parties to enforce regulations and an instance where a federal judge found that environmental groups had standing to sue to enforce the regulations:

A federal judge on Tuesday permitted two environmental groups to sue a Texas refinery owned by ExxonMobil Corp. [corporate website] for failing to enforce federal environmental standards. The Sierra Club and Environment Texas [advocacy websites] filed the lawsuit [Reuters report] in December in the US District Court for the Southern District of Texas [official website] against ExxonMobil's Baytown, Texas, refinery and the adjacent chemical plant for allegedly releasing over 8 million pounds of pollutants beyond the levels permitted under the CAA in the last five years. The Clean Air Act (CAA) [materials] contains a provision permitting private individuals to seek enforcement of federal pollution laws when the US Environmental Protection Agency (EPA) [official website] fails to do so.

you can read the rest here.

Senate Vote Thresholds

Students in my U.S. Constitutional Law course were recently perplexed by the number of different vote thresholds the Senate needs to accomplish various tasks. One student bravely asked if I would put together a list of the various thresholds. Sure, why not.

Votes need to conduct business (quorum) - a majority of seats currently filled by elected, living members.

Votes to pass a bill - a majority of members present for the vote.

Votes needed to end a filibuster (Cloture Vote) - 3/5 of the full Senate, i.e. of seats not vacant. Remember, the filibuster only exists in the Senate.

Votes needed to confirm a Presidential Appointee - majority of members present for the vote. Remember, only the Senate as confirmation power.

Votes needed to ratify a treaty - 2/3 of Senators present. Remember, only the Senate has ratification power.

Votes needed to convict and remove - 2/3 of Senators present. Remember, the House, by a simple majority, begins this process by impeaching the person.

Votes needed to override a veto - 2/3 of Senators present (House of Representatives are also needed).

Votes needed to propose an Amendment to the Constitution - 2/3 of member present. (House must also vote).

How Important Are Oral Arguments

Students in my Conversation and Presentation Skills for Lawyers course just finished a moot court exercise. For those of you not familiar with mooting, the exercise is essentially modeled on an appellate court proceeding. As I point out to students, these oral arguments in real life give appellate judges the opportunity to ask questions they may have on points of law, but more specifically it gives judges the opportunity to think about how their decision might impact future cases. As I like to point out to students, many of the questions asked by Supreme Court Justices during oral arguments are hypothetical in nature for the very reason that they are struggling with trying to determine how a particular rule they develop could be used in the future. But how important are these oral arguments? After all, both parties submit detailed legal briefs outlining their legal arguments. One sitting Supreme Court Justice, Clarence Thomas, has famously not asked a question during oral arguments for several years now. His position, apparently, is that these oral arguments aren't worth very much. Now it appears that at least one other Justice feels the same way.

Our Aging Judiciary

Is giving judges lifetime appointments a good idea? Not really according to this recent piece in Slate Magazine.

Under the U.S. Supreme Court: The president makes war in Libya

After pressure from England and France, President Barack Obama finally agreed to send U.S. war planes into Libya. But did he have the power to do so without permission from Congress? Back in March, shortly after the first U.S. planes were seen over Libya, United Press International ran an informative piece on this question. Students in my U.S. Constitutional Law course may want to check this short piece out.

Jury Selection

The Orlando Sentinel has a great article and video about the jury selection in a Florida case that has received nation-wide attention. The piece begins by stating basically what I have been telling students about jury selection in America, at least in high profile cases:

Experts say trials are won and lost in jury selection.

This is why an entire jury-consulting industry is devoted to reading the body language of would-be jurors, profiling them based on personal characteristics and learning as much as possible about these individuals to sift out the "dangerous jurors."

The rest of the story and the video are worth your time if you are interested in getting a better look at jury selection in high profile cases.

The Rise of the States

To fully understand the constitutional argument surrounding President Obama's attempt to provide health care to all Americans, one must also understand how federalism works in the United States. The struggle for power between the states and the federal government has been a part of the political debate in the U.S. since its founding. And even today the States are looking for ways to increase their power, including this proposal to amend the U.S. Constitution in a way that would allow the States to veto federal law.

Biden Called to Serve

No one is too important to serve on a jury in the United States. At least that was the message that Vice-President tried send this week when he appeared in a Delaware courthouse after being summoned to serve on a jury. The Los Angeles Times has a nice short piece on what happened when the Veep showed up as well as a nice little anecdote about what happened last year when the President of the United States was summoned to serve on a jury in Chicago.

More on Racial Preferences

Students in my Race and Equality in America seminar recently engaged in a discussion concerning the controversial topic of Affirmative Action. And wouldn't you know it, a day later Affirmative Action is in the news with the U.S. Court of Appeals' ruling on the University of Texas admission policy, which takes race into consideration as a factor for admission. The Statesman newspaper has more.

Courts of Appeals in the States

So here is a quick quiz. How many states do NOT have a court appeals in their judicial system?

Students in my introduction to common law courses are by now familiar with the basic structure of court systems in the United States: trial court, appeals court, supreme court. As I mentioned, many states deviate from this basic structure in one way or another. For instance, the highest court in New York is not called Supreme Court but Court of Appeals, while one of the lower courts is called Supreme Court. A bit confusing. Wikipedia has collected a few more differences that exist between state court systems.

But a more substantial deviation from this basic structure is the absence of a Court of Appeals. In these states one finds a trial court and a Supreme Court with nothing in between. In some of these states losers in the trial court have the right to have their appeal heard by the Supreme Court!

The Las Vegas Sun recently published an editorial urging the Nevada Legislature to create a Court of Appeals in Nevada. Because Nevada is a state where one has an appeal as of right to the Supreme Court, the system is inefficient with a bottleneck of cases at the top of the pyramid, at least so argues the Sun.

So back to my question. How many states do not have an intermediate court? The answer: 10! Wow. More on the various differences between the state systems regarding appeals can be found here.

A Split in the Courts

A nice little review of students in my law classes. The Dallas Morning News has a nice short article today emphasizing the how precedent works in a country like the United States, which has multiple judicial jurisdictions. The article concerns how courts in various parts of the country have dealt with the issue of whether police need a search warrant to search a cellphone. The take-away lines from the article:

A recent California Supreme Court decision says police do not need search warrants to examine the cellphones of those under arrest. But local judges and a deputy chief for the Dallas Police Department say officers should obtain warrants before reading the contents of cellphones. . . . "The safer way would be to get a warrant until the [Texas] Court of Criminal Appeals rules or the [U.S.] Supreme Court rules," said Adams, presiding judge for the felony courts.

Indeed. A case in California has no binding effect on courts in Texas. Only the U.S. Supreme and top court in Texas, in this case the criminal court of appeals, can create binding precedent that lower Texas courts must follow.

The House Over Time

Just to follow-up on yesterday's post. The Washington Post has a really interesting interactive map showing how the composition of the House of Representatives has changed over the past 100 years. Choose a year. Then move your cursor over a given state. It will show you how many representatives that state had during the period you have chosen. It will also show you how many people each member of the House represented in a given period. Looks like the average number of people per member of Congress was about 290,000 in 1910. Today it is over 700,000 people per representative!

Census Numbers Are In

In each of my courses, at some point or another, we touch upon how the membership of House of Representative is apportioned, and reapportioned every ten years. As students in my courses this semester have heard me say a number of times, this year reapportionment will once again take place because the United States just completed its census. Well, the numbers are in. Politico has more about which states were the winners and which the losers when it comes to membership in the House.

Tweeting from the Jury Box

Reuters recently had an interesting article on the impact social media is having on juries. The article begins:

The explosion of blogging, tweeting and other online diversions has reached into U.S. jury boxes, raising serious questions about juror impartiality and the ability of judges to control courtrooms.

The article not only explains how this new media is threatening fairness in jury trials, but also provides numerous examples of instances where a judge ordered a NEW TRIAL because of a juror's online conduct during the trial.

Advise and Obstruct

The New York Times recently ran an editorial with the same caption as my post here, which is clearly a play on the "advise and consent" language in the U.S. Constitution. As students will recall, while the President has the power to nominate federal judges, he must also obtain the consent of the U.S. Senate. As I mentioned in class, this process has become increasingly political to the point where the federal judiciary's ability to efficiently function is being threatened. Or at least so argues the New York Times.

A very rare event

As I have mentioned in class, it is quite rare for a judge to be removed via the impeachment process. So yesterday's vote in the U.S. Senate wad rather historic.


The US House of Representatives [official website] voted unanimously [JURIST report] in March to impeach Porteous. After an investigation [report text, PDF] by a special committee, the Judicial Conference found "substantial evidence" that Porteous had signed false financial disclosure forms, falsified statements in a personal bankruptcy proceeding, made false representations to secure a bank loan and violated criminal laws [text] and ethical rules by soliciting and receiving "cash and other things of value" from lawyers in a bench trial over which he was presiding. Porteous' decision in that case, In re Liljeberg enters v. Lifemark Hospitals, was later partially reversed [opinion text] by the Fifth Circuit, which earlier this year reprimanded Porteous [text, PDF]. A House committee began investigating Porteous [JURIST report] in 2008.'>Senate votes to remove federal judge from bench

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Originalism

How one should interpret the U.S. Constitution is a hotly debated topic in the United States. At the heart of this debate is whether the Constitution should be interpreted in a manner consistent with how the founders back in the 1780s would have interpreted it, or whether the Constitution should be interpreted to reflect changes in modern society. This idea of looking back 230 years to find the proper interpretation of the Constitution is called originalism. Prof. Lawrence Solum has an excellent primer on what originalism is and what all the hubbub is about.

Cameras in Courtrooms

Should hearings before a high court be televised? American academics, jurists and members of the media have been discussing this for several years now. The Brits have actually said yes to this question, and have allowed their new Supreme Court to hold hearings before the camera since last year. And now the head of the German Constitutional Court has entered the fray (see Spiegel's "Voßkuhle will Fernsehkameras im Gericht zulassen").

Gone

A few days ago I wrote about the effort in Iowa to remove three judges through the retention process because they voted to recognize gay marriage. My point was that usually judges are not removed through this process of retention . . . unless they make a controversial decision. Iowa provides us with yet another example. All three Iowa Supreme Court Justices who were up for retention and voted in favor of gay marriage were removed by voters on Tuesday. My question is, does this prove that supporters of judicial elections are right? Shouldn't judges reflect the majority view of society, and when they don't, they should be removed? Or do we want a system where judges can make rulings that do not reflect the so-called "will of the people?" Does an election like this actually help us truly determine what the will of the people is?

The Passive Voice

For my American Studies students, although my law students could benefit from this as well:

I came across a short, concise description of how the passive voice is used, and not used, in English. I have to admit that I found it while trying to understand how the passive voice is used in German, something with which I am still struggling.

More on Electing Judges

Advocates of judicial elections claim that electing judges make them accountable to the people. Even in those states where judges do not run against opponents, but instead stand for retention, advocates claim that while the people cannot select a new judge, at least they can throw the bums out when warranted. The modern reality is, though, that judges usually do not get removed by retention vote unless they have handed down a controversial decision that angers groups with the financial resources to run an ad campaign seeking their ouster. There is no better example of this than the retention vote taking place this year in the State of Iowa where the Iowa Supreme Court recently held that prohibiting gays and lesbians from marrying violated the Iowa State Constitution. Outraged, groups on the religious right have poured all kinds of money into removing these judges from office. The Associated Press has more.

Electing Judges

With elections just around the corner in the United States, some commentators are once again lamenting the increasing politicization of selecting judges in some states. While electing judges is nothing new in America (many states have been selecting their judges in this manner for decades), the money that has been poured into these judicial campaigns as well as the harshness of the negatives ads put out by candidates has increased substantially in the past decade.

Richard Hansen and Dalia Lithwick over at Slate write:

If you're a fan of The Exorcist and Carrie, if you like sex and violence and ominous music, you've come to the right place. Because we have gathered some of the most spine-chilling Halloween footage you will ever see—all produced in an effort to influence state judicial elections.

Be sure to take quick look at some of these campaign ads for judges.

Would Make You Think Twice

As my students in both my introduction to law courses (in Osnabrück and Münster) are or will be finding out, law school in America is an entirely different proposition than what students here are faced with. For starters, law school in America is a graduate degree. One cannot begin studying law without first having a bachelors degree. Then there is the cost. While students here in Germany take to the streets as a result of having to pay €1000 per year in tuition, law students in America are faced with five, sometimes even six, digit loans upon completion of their legal education. Slate Magazine has an interesting piece on the American lawyer market (supply has outstripped demand) and the trials and tribulations of new lawyers just starting out.