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: