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."