Only a Third Find Pupilage

Students in my Introduction to Common Law class know that a step in becoming a barrister is securing a pupilage, the practical training step at the end of the long road to becoming a barrister. In class I have stressed how difficult it is to secure such practical training, and a recent study has shown just how difficult it really is. The English law website Legal Cheek notes:

The statistics, published today by the Bar Standards Board (BSB), show that 35% of all UK/EU domiciled grads that started the Bar Professional Training Course (BPTC) in the academic years commencing in 2011-2013 have gone on to gain pupillage.

The article goes on to discuss how diverse the Bar is becoming:

On the diversity front, the report shows that the number of women progressing to a career at the bar is similar to men; 47% of pupillages were awarded to women. It must be borne in mind that more women are enrolling on the BPTC in the first place, which may suggest that men have a greater chance of success. It’s also speculated that white aspiring barristers are more successful in finding pupillages than black ethnic minority (BME) candidates, but “more research is needed to determine whether and, if so, why this may be the case”.

Debate Over Term Limits for Justices Heats Up

As many students in my courses have learned, federal judges in the United States serve for life. And with no mandatory retirement age, life can mean life. In England, on the other hand, a life term means until one reaches the mandatory retirement age of 70. Nevertheless, neither system has any kind of term limits in place for their judges. As a side note here, it should be pointed out that of course many of the states in the United States do have a mandatory retirement age and a mechanism for voters to remove judges.

The recent death of Justice Antonin Scalia was reignited a debate over whether federal judges should also serve only for a fixed period of time. A recent piece by Orin Kerr in the Washington Post explains why life terms might be a problem:

It’s often said that elections have consequences. But thanks to life tenure, elections don’t have nearly as much consequence as they should have on the Supreme Court. A President might have zero vacancies to fill or may have many. For example, during the four-year Presidency of Jimmy Carter, no Justice retired. Carter never made a Supreme Court nomination. On the other hand, in the four-year window from 1937 to 1941, seven Justices died or elected to step down. President Franklin Delano Roosevelt and the Senate of that era quickly filled all seven spots.

In his next paragraph, though, Kerr gets to the heart of the matter: the ideological make-up of the Court:

If we all agree that the ideological orientation of the Supreme Court matters — which, for better or worse, undeniably has been in case in our collective memory — then I can’t see why that orientation should depend on how long a handful of people in their 70s and 80s can continue to serve. It would make much more sense to tie that orientation to the elected branches in some predictable and democratically accountable way.

For many German jurists and students of law, this might seem out of place. Aren't courts suppose to be objective? Isn't a judge suppose to leave ideology out of the decision and simply apply the law? To understand the debates over Supreme Court appointments in the United States one must also understand that this idealistic view of judges is something of the past. Today, the make-up of the Court is as politically charged as any other controversial topic.

For additional views on this topic see here, here, and here.

Changing the size of courts

The number of judges that sit on America's highest courts (federal and state supreme courts) is, for the most part, not set by the federal and state constitutions. Congress and state legislatures are free to change the number of Justices sitting on the highest courts as they see fit. For instance, the first U.S. Supreme Court had only six members. The number was gradually expanded to seven, then nine, then ten, then back to seven and finally left at nine. All via Acts of Congress. The same goes for the various state Supreme Court.

However, the magazine Governing recently reported on a disturbing trend:

When supreme courts were expanded in the past, it was typically the result of a larger revision of the state constitution, said Bill Raftery, an analyst with the National Center for State Courts. Over the past decade, however, legislators in several states have sought to expand or reduce the size of their supreme courts -- in some cases admitting their intent to sway the ideological balance. "In several of these instances, the legislators have been very clear that they want certain decisions by their state courts of last resorts to be changed, or they want future decisions decided a different way," said Raftery.

Today America's courts are as political as the other three branches, with control of the highest court being a major goal of both the established political parties.

State Courts

Students in some of my courses learn that each state in the United States has its own separate and distinct court system, and these systems are by no means identical. It is up to each state to shape their system as they see fit, with changes being made regularly. One such change just took place in the State of Georgia where the legislature recently passed law adding two more Justices to the Georgia Supreme Court. Of course, expanding the make-up of court can sometimes lead to claims of "court packing" whereby the party in power adds seats in order to control the judicial branch. As the Atlanta Journal Constitution points out, this very claim is being made by some Democrats in Georgia.

Class Actions

In class, I seldom touch upon the role that class action lawsuits play in the American legal system, primarily because they are a confusing and foreign topic for non-Americans. Nevertheless, I have recently decided to spend more time talking about the use of these lawsuits in America, arguing that in fact the basic concept of a class action lawsuit is really neither confusing nor foreign. Today an article in the Süddeutsche Zeitung probably does a better job explaining the usefulness of class action lawsuits in three paragraphs than I did in thirty minutes of lecture:

Das Verbraucher- und Umweltrecht ist bei uns zahnlos, weil Instrumente zur Durchsetzung fehlen. Dazu bräuchte man entweder starke Behörden oder die effektive Bündelung von Individualrechten. In Deutschland gibt es weder das eine noch das andere. Das Kraftfahrt-Bundesamt agiert als Lehrbuchbeispiel für regulatory capture, also die Unterordnung einer Behörde unter die Partikularinteressen der Industrie. Die manipulierten Autos lässt man weiterfahren. Wenn Umweltverbände nach dem Informationsfreiheitsgesetz Akteneinsicht beantragen, werden ganze Aktenordner geschwärzt, um die Branche zu schützen.

Aber auch für einzelne Verbraucher ist es in Deutschland weitgehend sinnlos, der Übermacht von VW entgegenzutreten. Eine der wenigen Klagen wurde vom Landgericht Bochum im März mit dem erstaunlichen Argument abgewiesen, dass der vorschriftswidrig überhöhte Abgasausstoß nur ein Bagatellmangel sei; der Käufer habe schlicht auf die Nachbesserungsversuche von VW zu warten.

In den USA ermöglicht das Instrument der Sammelklage eine Bündelung der Ansprüche aller Kunden, sofern diese nicht ausdrücklich widersprechen. So wird die in einem komplexen Fall nötige Expertise und Schlagkraft geschaffen und Druck auf die Beklagten ausgeübt. In Deutschland ist dies nur über organisatorisch aufwendige Abtretungsmodelle denkbar, die von der Initiative jedes einzelnen Verbrauchers abhängen.

As I mentioned recently in my Introduction to American Law course, the class action lawsuit is by no means a perfect or efficient regulatory instrument, but sometimes it is the only instrument available to achieve a just and needed remedy. 

TV in the Courtroom Debate Comes to Germany

As I have pointed out on a few occasions (see here, here and here), both England and the United States have engaged in debates over whether court proceedings should be televised. In the United States, many lower court cases are televised, and in fact there is a cable channel devoted to showing these cases. Now German Justice Minister Heiko Maas wants some court proceedings in Germany to be televised:

Aus dem Gerichtssaal solle auch in Zukunft keine Showbühne werden, sagte Maas. Die Rechte der Verfahrensbeteiligten müssten gewahrt bleiben. "Aber was von den obersten Gerichten an Recht gesprochen wird, das wirkt sich auf das Zusammenleben unserer Gesellschaft aus."

Interestingly it is the proceedings of the highest courts in both England and the United States where television cameras are still forbidden out of fear that televising these proceedings will in fact create a "Showbühne" atmosphere. The response to Maas' idea from judges on Germany's highest courts was swift and not very welcoming. 

Inside the U.S. Supreme Court

Court junkies will definitely want to check out this conversation with U.S. Supreme Court Chief Justice John Roberts as he talks about the inner workings of the Supreme Court and the selection process used to fill court vacancies.

Enforcing Human Rights in US Courts and Circuit Splits

The latest installment of Harvard Law Professor Noah Feldman's Bloomberg News legal column entitled "A Nasty Split in U.S. Courts Over Human Rights" contains a few topics that might (should!) be of interest to students of American law. Feldman writes about a recent split in the circuits over the enforcement of human rights in U.S. Courts. The first thing that should jump out to students are the words "split in the circuits". Feldman then writes:

A company whose violation of human rights abroad strongly affects the U.S. can be sued in any federal court in the country -- except New York and Connecticut’s Second Circuit. A decision there Tuesday means it will remain stubbornly outside the pack.
The U.S. Court of Appeals for the Second Circuit split 4-3 -- nastily -- in its refusal to get into conformity with the other circuits.

Here one has to focus again on the words. By using the words "federal court" the reader should know that we are talking about cases filed in the federal court system. The possible confusion comes in when he mentions "New York and Connecticut's Second Circuit." Here we have to understand that he is not talking about state courts, but rather the federal court of appeals that has jurisdiction over federal cases that arise in the geographical region of New York and Connecticut.

The rest of the article is also worth a read as it explains how "in 1980, the Second Circuit held that the law (Alien Tort Statute) could be used by a foreigner to sue a foreigner in the U.S. courts for international law violations that took place outside the U.S.." The article goes on to explain how in 2013 the U.S. Supreme Court restricted the ability of such cases being filed in U.S. courts, and how this most recent ruling by the Second Circuit puts up further hurdles to such actions.

The Impact of Social Media on Juries

This is not the first time the topic of the Internet and juries has been discussed here on this blog (see here, here, and here). But it is the first time that I am reporting about an effort to punish jurors who use social media while serving on a jury. A few weeks ago the AP reported that officials in California has considering ways discourage jurors from engaging in "internet research" or tweeting about a trial while it is in progress:

Legislation supported by state court officials would authorize judges in some counties to fine jurors up to $1,500 for social media and Internet use violations, which have led to mistrials and overturned convictions around the country.

As jurors and judges have become more technology savvy in recent years, the perils of jurors playing around with their smartphones have become a mounting concern, particularly in technology-rich California. A 2011 state law made improper electronic or wireless communication or research by a juror punishable by contempt. 

Supporters of the latest California measure say a potential fine would give teeth to existing prohibitions against social media and Internet use and simplify the process for holding wayward jurors accountable.

As you will see if you read the rest of the article, this proposal is rather controversial.

Did Jury Nullification Just Get a New Influential Supporter?

If there is any aspect of the use of juries in the common law system that confuses non-common law students, it is the concept of jury nullification. How can it be, ask many students, that the jury can simply ignore the law? Recently, U.S. Supreme Court Justice Sonya Sotomayor weighed in on the topic. Reason.com reports that the Justice had "kind words" for jury nullification, albeit measured words, when she was asked about a recent federal court case where the judge dismissed a juror who apparently could not bring himself to voting to convict suspected drug dealers:

"In United States v. Thomas, the 2nd Circuit heard a challenge to a judge's dismissal of a juror in a federal drug case who resisted finding the five defendants, all of whom were black, guilty of selling crack. After interviewing the jurors, the judge concluded that the holdout, who was the only black member of the jury, had "immoral" motives because "he believes that these folks have a right to deal drugs, because they don't have any money, they are in a disadvantaged situation and probably that's the thing to do." The judge added that "I don't think he would convict them no matter what the evidence was." 

The 2nd Circuit rejected the juror's dismissal, saying the judge did not give sufficient consideration to alternative explanations for his resistance. But it also said the dismissal clearly would have been justified if the juror was in fact determined to acquit the defendants regardless of the evidence. "As an obvious violation of a juror's oath and duty," the court said, "a refusal to apply the law as set forth by the court constitutes grounds for dismissal."

Perhaps the most interesting part of this is the fact that the federal appeals court also seems to be saying that jury nullification has no place in American federal courts. And here is where Justice Sotomayor seems to come out in favor of jury nullification, noting that the court of appeals probably got the case wrong. The short story here is jury nullification exists, but most judges certainly do not like it and some even believe its use is prohibited.

A Court of Eight

In an earlier post I mentioned the death of U.S. Supreme Court Justice Antonin Scalia and the fight over filling his seat. In the meantime, the court is left with only eight Justices and the very real possibility that many of their cases will end in a 4-4 tie. So what happens when the Court cannot find a majority to decide a case before it? For the answer, see this post over at the blog Constitution Daily.

Racism in the UK Bar

One of my favorite UK legal website, Legal Cheek, has a post directing legal watchers to a video interview of England's first black female High Court Judge. Legal Cheek goes on to say:

Dame Linda Dobbs has exposed shameful incidents of racism and sexism at the bar, particularly from her own clerks, in a revealing interview for the First 100 Years project — an ambitious video history which aims to highlight and celebrate the achievements of female lawyers in a profession long dominated by men.

A link to the video interview can also be found on the Legal Cheek website.

Selecting Judges

On Friday in my common law course at Münster University, we discussed the process of selecting judges in both England and the United States. When I mentioned the process for selecting U.S. federal judges, I noted that it has become somewhat political over the past decades, using the recent death of Justice Scalia and the Senate's refusal to allow President Obama to fill that vacancy as an example of just how politicized the process has become. On cue, the Marshall Project has just released statistics concerning how many other vacancies there are in the federal court system:

The ninth seat on the Supreme Court has been vacant for two months.But Antonin Scalia’s chair is not the only empty one in the vast federal judiciary, where several judgeships have remained unfilled for 30 months or more. Around the country, there are 84 of these vacancies, largely as a result of the Senate’s historically low rate of confirming President Barack Obama’s nominees. And since the beginning of last year, the number of unfilled seats and pending nominations have been steadily rising.

The rest of the article is worth a read.

Going Around the Senate

The death of Justice Antonin Scalia has left a vacancy on the United State Supreme Court, which must be filled using the process set forth in the United States Constitution. As most students who have taken one of my classes should know, this process calls for the President to nominate a replacement and the Senate to vote on whether that person should take the vacant seat. This classic example of checks and balances between the branches of federal government seems to set up a situation where a court vacancy cannot be filled without the Senate playing along. In fact, the Constitution says just that when it gives the Senate the power to confirm the President's nominee.

So what happens when the Senate refuses to play along? Up until early this year, the Senate has never absolutely refused to engage in the confirmation process. With only eight months until the next President is selected, leaders of the Senate have said that President Obama's nominee for the vacancy will not be considered by the Senate, and it should be up to the newly elected President to fill to vacancy. While this move is unprecedented, it probably is constitutional. Some, however, have suggested that the President might be able to simply skip the Senate and fill the vacancy, claiming that the Senate has waived its right to consent by not even engaging in the confirmation process. The blog Constitution Daily takes on this argument in a very interesting and worthwhile post.

Separation of Powers

A recent U.S. Supreme Court case is the subject of a Noah Feldman's column over at Bloomberg News, and it is a must read for students interested in how the Court deals with separation of powers issues. The case involved whether Congress could amend a law in order to impact litigation pending before the courts. At the heart of the matter is whether by doing so Congress is interfering with the power of the judiciary.

Natural Born Citizen Reloaded

Back in January I wrote about the controversy over whether Texas Senator Ted Cruz is eligible to be President. The issue centers around the meaning of the phrase "natural born citizen," which according to Article II of the U.S. Constitution is what one must be in order to qualify to be President. At least three lawsuits have been filed seeking to get the court to clarify the meaning of this phrase, and as the blog Constitution Daily recently reported, all have failed. As the blog post points out:

Legislative attorney Jack Maskell, writing for the Congressional Research Service in 2011, found that “the weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term ‘natural born citizen’ would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.”

Anyone interested in learning more about the arguments concerning this phrase should really give Maskell's memo a quick read.

Going Alone

One aspect of American law that I rarely discuss in class but should, is the idea that one may represent themselves in court. In legal English this is called Pro Se. While the 6th Amendment has been interpreted by the U.S. Supreme Court to guarantee access to a lawyer in criminal cases where the defendant is facing jail time, no similar guarantee exists for individuals who find themselves as part of a civil case. Recent numbers are a bit hard to find, but a 2005 New Hampshire study showed that in a majority of lower court cases in New Hampshire at least one of the parties was representing themselves and a 2004 California study found that 4.3 million people were self-represented in court.

To aid people in this situation, a new website has emerged, complete with a video game that teaches self-litigants the dos and don'ts of self-representation. It's worth look for anyone interested in learning more about who courts operate in the United States.

Directly Electing the Senate

Students of American Constitutional Law know that members of the United States Senate were originally selected by the individual state legislatures. In class, I usually present this selection system as part of a compromise between large and small states. However, over at the blog Constitution Daily a slightly different take on this is offered:

"At the Constitutional Convention in 1787, the Founders were guided by, among other powerful ideas, the fear of the potentially tyrannical, harmful powers of a democratic majority. The proposal that United States Senators should be elected by state legislatures, rather than democratic majorities, was inspired by this fear. . . ."

To understand why the U.S. Senate was originally select by state legislatures and why this changed with the passage of the 17th Amendment, you cannot go wrong reading the rest of the blog post.

Judicial Elections Back in the News

Two recent news items caught my attention as they show the difficulty states have with keeping their elected judges independent. In an en banc decision the U.S. Court of Appeals for the Ninth Circuit upheld an Arizona law that regulates the fundraising activities of judges. According to the Arizona Courthouse News Service:

Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues. The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.

The goal here is to keep judges out of the normal give and take political campaigning process in order to keep them independent.

In Wisconsin court watchers are concerned that the upcoming Wisconsin Supreme Court race will be overly partisan. This illustrates yet another difficulty with judicial elections. Can judges be said to be truly independent when they run on a partisan platform? 

Lifetime Appointments

The Washington Post's blog "The Fix" recently had a post informing its readers that the average age of the U.S. Supreme is nearing its record high. The post has some interesting tidbits:

• The average when Justices retire is around 78
• Three Justices are older than 78
• The average age of the Court at the moment is 69

This is good opportunity to remind students that judges in the U.S. federal court system are appointed for life, whereas judges in England have a mandatory retirement age. The majority of states in the United States also require their judges to retire after reaching a certain age.