So what happens when a superstar gets selected for jury duty in New York? Find out here.

SZ: "Fünf ältere Herren gegen das liberale Amerika"

The SZ recently had a piece with the catchy title above. Their take concerned a recent Supreme Court decision that some claim is anti-woman. Students of American Law should give it a quick look. It's in German!

The always informative Constitution Center website has a fascinating post asking the question of whether it is too hard to amend the U.S. Constitution. For a review of what is necessary to make changes to the constitution, I encourage you to check out the post.

Can Congress Sue the President

Republicans in Congress are mad. They are mad at President Obama for, as they claim, failing to enforce the laws they have passed. They are so mad that they are threatening to sue the President. But can they do that? In class, as part of our discussion about the "cases and controversies" requirement found in Article III of the Constitution, I have basically told you that the answer is no. See what the experts think.

Unanimity on the Supreme Court

As students of American law well know, at least those who have read U.S. Supreme Court decisions, the Court rarely speaks with one voice. Almost every opinion issued by the Court these days seems to have concurring and dissenting opinions attached to them. There is an interesting discussion going on among legal scholars in the U.S. about a new rash of unanimous rulings issued by the Court over the past few weeks. Some argue that this is a dawning of a new day, while others say that this unanimity is nothing more than window dressing (i.e. it is a mirage, it does not really exists). Follow the links above to get a taste of this very important discussion. Your ability to understand the discussion is one way to test whether you understand the importance of the rationale in a written court opinion.

CSI and Juries

Much has been written about the so-called CSI effect on juries. Wikipedia defines the CSI effect as:

any of several ways in which the exaggerated portrayal of forensic science on crime television shows such as CSI: Crime Scene Investigation influences public perception. The term most often refers to the belief that jurors have come to demand more forensic evidence in criminal trials, thereby raising the effective standard of proof for prosecutors.

But recently Slate Magazine had an article casting the CSI effect in a different light:

How could forensic evidence, widely seen as factual and unbiased, nearly send an innocent person to his death? The answer is profoundly disturbing—and suggests that for every Earl Washington freed, untold more are sent to their deaths. Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches. No one knows exactly how many people have been wrongly imprisoned—or executed—due to flawed forensics.

Anyone interested in how shows like CSI might influence jury trials in America should read the rest of this article.

If You Think Today's Congress Is A Hostile Place, Think Again

The National Constitution Center has a great history piece on how violent things in the Congress leading up the American Civil War:

On May 22, 1856, Representative Preston Brooks attacked Senator Charles Sumner with a metal-tipped cane, leaving Sumner seriously injured. Brooks received a $300 fine. The incident started when Senator Sumner, an abolitionist from Massachusetts, went on a two-day rant on the Senate floor after an incident in Kansas. Sumner made fun of Brooks’ relative, Senator Andrew Butler of South Carolina, who had suffered from a stroke, and he used language that compared the South’s use of slavery to prostitution.

Supreme Court Under Attack

The Supreme Court has recently come under attack by several academics for reasons ranging from its unwillingness to televise its hearings to the life time terms (this link will take you to interesting piece arguing for term limits of the Justices) that the Justices serve. But in a recent blog post Prof. Geoffrey Stone asks the enticing question: "Do we need the Supreme Court?"

Stone sets forth 20 of the more controversial/landmark decisions and then asks:

How many of these 20 decisions do you think reflect good policy for the nation? Do you agree with the Supreme Court that on such matters the People should not be permitted through their elected representatives to act contrary to these decisions? What do you think led you to think that some decisions were "good" while others were "bad? Can you discern any principle that leads you to judge some decisions as "good" and others as "bad"? Or is it just a matter of opinion? When all is said and done, has the Supreme Court's exercise of the power of judicial review been good or bad for the nation? Do we need the Supreme Court?

His point obviously is whether nine judges should be determining important questions of law or whether elected representatives should be.  

Jealous Wife Cannot Be Charged Under International Treaty

Yesterday the U.S. Supreme Court ruled that jealous wife who used a mixture of chemical toxins to harm her husband's lover could not be charged with a violation of the Chemical Weapons Treaty signed by the U.S. and incorporated into federal criminal law. The case provides us with an opportunity to review some of the concepts we have been discussing in American Constitutional Law. Specifically, the article raises questions about the role of the 10th Amendment in this case, and whether treaties can trump trample on state authority.

Are Judges Really Like Referees?

In class I sometimes characterize the role of common law judges as being akin to referees. In a recent editorial entitled "Wading through the malarkey of judges as umpires" Prof. Alan Garfield makes a convincing argument why sometimes judges aren't really like referees. To be clear, when I talk about judges being like referees, I mean the role they play at the trial court level. Here Prof. Garfield is talking about appellate court judges, specifically Supreme Court Justices, whose job primarily is to apply the law, not oversee a trial. I encourage you read his piece.

Judges for Sale

The New York Times is most certainly not a fan of judicial elections. As students in my courses know, many states in the United States select their judges through an open election process. In a recent editorial, the New York illustrated why this might be sometimes problematic:

In North Carolina’s Supreme Court primary on May 5, for example, Justice Robin Hudson endured attack ads charging that she coddled child molesters and “sided with the predators” in a dissent while on the bench. The ad’s source was not her two opponents but a shadowy independent group that received $900,000 from the Republican State Leadership Committee in Washington, which channels donations from corporations and individuals to promote conservatives in state politics.

 You can read the rest of the editorial here.

Term Limits for Supreme Court Justices?

An editorial in The Week recently made the argument that it's time for America to limit the terms of its federal judges:

"Unlike in nearly every other democracy in the world, justices appointed to our highest court remain there for life. This is purportedly done to promote judicial independence. But in reality these lifelong Supreme Court appointments generate an absurd political spectacle: A court that is both nakedly partisan and less democratic."

 You can find the rest of the piece here.

Americans Want Term Limits for Supreme Court

A new survey of Americans shows that a majority of them would like members of the Supreme Court to have term limits (something similar to the time limits placed on members of the Bundesverfassungsgericht). As students in my courses know, or will soon learn, federal court judges in the United States serve for life terms once they are appointed to the bench. As students in my Osnabrück courses should know, in order to impose such term limits, the language of the U.S. Constitution (Article III) will need to be changed, which is very unlikely for the reasons we discussed/will discuss in class.

Selection of Judges in the United States

The Salt Lake Tribune recently published a very well-written editorial by the Chief Justice of the Utah Supreme Court, which does an excellent job of explaining how the retention system of judicial selection works. Students interested in understanding how this method of judicial selection operates are encouraged to give it a read.

Taking the Fifth

The Constitution Center has a great post explaining what "taking the Fifth" means:

Someone pleading the Fifth Amendment in a public proceeding is ingrained in our popular culture, thanks for decades of movies, television shows, and public hearings where the accused defiantly refuses to testify in a moment of high drama. In reality, a person isn’t pleading the entire Fifth Amendment, but just the part that refers to self-incrimination.

The post goes on to explain how this right was expanded to state court proceedings and hearings beyond the criminal courts. FFA students should take particular note of this article, as it touches upon concepts that you most certainly will be exposed to during your FFA studies.

No Bar Exam Required

The State of Iowa is considering joining Wisconsin as the only states to allow graduates from in-state law schools to start practicing law immediately after graduation. No practical training, no bar exam! The Des Moines Register has a short article explaining the proposal:

Graduates of Iowa’s two law schools could begin practicing law in the state soon after graduation rather than waiting until they pass the bar exam, under a proposal before the Iowa Supreme Court.

The proposal would apply only to law school graduates who stay in Iowa to work. Law school graduates would still have to pass an ethics exam and screening and background checks, according to the proposal. It also would require students to take an Iowa-specific law and procedure course.

Loser Pays Coming to America?

For the most part, the U.S. court system has tended to reject a loser pay system. As a general rule, each side is responsible for covering the cost of their legal representation, regardless of who wins. There are of course exceptions to this general rule, normally set forth in statutes that require a defendant in certain circumstances to pay the legal fees of the plaintiff should the plaintiff prevail.

But the problem of "patent trolls" is making the federal courts and Congress rethink their aversion to a pure loser pay system. Bloomberg News has more on this developing story.

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.