20 December 2006

Unconstitutional Death Penalty

After class on Tuesday (Common Law Legal System class), a student asked how a California state court could have ruled that the death penalty in California violates the United States Constitution. This is a good question, although the facts aren't quite accurate. In fact, it was a United States District Court Judge who ruled California's system of lethal injections to be unconstitutional. Clearly, a federal court judge can rule on whether something violates the federal constitution. But the student's question remains a good one. How can a state court find that something violates the FEDERAL constitution? Simple. Remember when we discussed the state and federal court systems in the United States I noted that a case will often raise both state and federal law claims. When this is the case, as it often is in criminal appeals, a state court can rule on the federal law claims as well as the state law claims. So, it is conceivable that the a California state court could find that the death penalty in California violated the FEDERAL constitution.

The student also wondered whether this court was ignoring binding precedent that says the death penalty does not violate the U.S. Constitution. The quick answer is probably not. Past U.S. Supreme Court cases have set forth tests to be used to determine whether the process used to carry out the death penalty in a given state violates the Constitution. Of course the government would try to draw analogies to cases upholding procedures used for the death penalty, while the defense (petitioner) would try to draw analogies to those cases that found death penalty procedures to violate the U.S. Constitution. Capital punishment in the United States is not automatically constitutional, and if someone challenging a procedure can find enough flaws with the way it is carried out, which appears to be the case in California, they can get a court to say e the procedures violate the U.S. Constitution and still be in accord with Supreme Court precedent.

11 December 2006

Playing Chicken

The case of Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp, plays an important role in our discussion of contract interpretation (and the mistake defense) in Common Law of Contracts. Apparently, it's an important case for many American law school contracts courses as well. So important, legend has it, that one professor dresses up a chicken for the lecture. Urban legend? Myth? Apparently not. A post on the Contracts Prof Blog claims that there is living proof (pictures, which sadly are not included in the post) of a professor dressing up as chicken for the discussion of this case that begins with line, "What is a chicken."

04 December 2006

Santa's Butt Raises First Amendment Issue

According to the Bangor News Daily, "The Maine Civil Liberties Union wants Santa’s Butt in beer coolers by Christmas." In fact, what they (the ACLU) appear to be fighting over is whether the State of Maine can stop a beer producer from selling a beer that bares Santa's bottom on the label (see picture to the left). American Constitutional Law students will learn that the courts generally take a rather broad view concerning what constitutes "free speech." When the government prohibits a beer producer from using a particular label does that violate the First Amendment's Freedom of Speech provision? Probably. In Missouri, where I worked for the ACLU before coming to Germany, my office worked on a similar case. In this instance the beer producer used reproductions of classic nude paintings on his labels. The State of Missouri refused to grant him a liquor license to sell his beer unless he changed the label. The government finally backed down when we pointed out that the "obscene" label was a reproduction of a famous painting that hangs in the Louvre in Paris.

30 November 2006

Our Own Little Secret

The New Yorker magazine recently had a piece about how hotel and casino magnate Steve Wynn put his elbow with a Picasso painting that was worth $40 million. Thankfully for him he owned the painting. But he was in the process of selling it. There were already promises on the table from Wynn to sell and from the purchaser to buy. But that's not the interesting part of this article, as it's clear that the buyer would has a remedy to get out of the contract. Here is the interesting part:
A few hours later, they all met for dinner (Wynn and his friend who witnessed the accidental destruction of the painting), and Wynn was in a cheerful mood. “My feeling was, It’s a picture, it’s my picture, we’ll fix it. Nobody got sick or died. It’s a picture. It took Picasso five hours to paint it.” Mary Boies ordered a six-litre bottle of Bordeaux, and when it was empty she had everyone sign the label, to commemorate the calamitous afternoon. Wynn signed it “Mary, it’s all about scale—Steve.” Everyone had agreed to take what one participant called a “vow of silence.” (The vow lasted a week, until someone leaked the rudiments of the story to the Post.)
Since the New York Post broke the story of this $40 million blunder, Wynn's guests have been speaking with whomever will listen. But they promised not to talk about it. Is this an enforceable promise?

29 November 2006

Vanishing Trials

In today's Boston Globe there is an interesting story about how difficult it is for young lawyers in the United States to get litigation experience. America has a reputation of being litigation happy, and most people think that automatically translates into an over abundance of actual court hearings. But according to recent data, the number of trials in the U.S. is declining drastically. According to the Globe piece:
Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely -- if ever -- stepped foot in a courtroom.

The article goes on to note that based on 2002 numbers, only 1.8% of all cases filed in U.S. Federal Court actually go to trial!

28 November 2006

Gifts and Contracts

In contracts class we spend a fair amount of time distinguishing between gifts and valid consideration. In short, we talk about whether gifts are enforceable contracts. In the real world this distinction between gifts and enforceable contracts has been creating some problems for organizations who depend on charitable gifts. The Wall Street Journal recently reported that a growing number of donors are reneging (not following through with giving their gift) on their gift pledge. The problem is such now that many institutions are trying to devise ways to make charitable gifts enforceable contracts. The main problem, so says the WSJ, is that many of these gifts are made orally. The problem is compounded by the fact that many charitable donors would probably be offended by having to put their gift pledge in writing. As one donor notes, "My word is good. If they don't trust me they don't have to take the money -- I can go somewhere else. There are plenty of places that are happy to accept gifts without promises." But would putting the pledge in writing really make that much of a difference as far as enforceability goes?

25 November 2006

Jury Duty

Early in their FFA studies, students are introduced to the concept of juries, something that makes the common law legal system somewhat unique. Despite a decrease of use in many common law countries, juries are still quite "popular" in the United States. This is primarily because in many instances the parties in a court action have a constitutional right to a jury trial, which is not the case in most common law jurisdictions. Yet the jury system in the United States also faces a threat to it's existence and legitimacy, namely finding enough people who want to be jurors. As the USA today recently reported:
No one keeps national figures on jury duty no-shows, but the American Judicature Society considers the problem an epidemic in some communities, especially large urban areas such as Miami, Houston and Atlanta, where no-show rates routinely top 50%, says David McCord, a society spokesman.
In short, people don't want to serve on juries. Is the right to a jury still meaningful if the jury pool is made up only of people who wish to serve on a jury?

22 November 2006

Borat's List of Angry "Victims" Growing

And so is the list of people suing Borat (Sacha Baron Cohen). The DPA is reporting that the villagers in the Borat film, who are actually Romanian villagers, are suing in New York, Florida and, get this, German courts. Again, the main claim is they were misled into appearing in the film. Looks as though the great American tradition of suing is catching on here in Deutschland. Of course, this won't be the first lawsuit filed against "Borat" in Germany. Shortly before it's release in Germany, two lawsuits were filed here to stop the film from being shown because it allegedly incited racial and ethnic hatred.

14 November 2006

Let the Games Begin

You gotta love Americans and their propensity to sue over just about anything. Earlier I posted a piece about how some people think that suing Borat (Sacha Baron Cohen) for "tricking" people into signing release forms for the movie Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan is possible. It only takes a few legal "experts" to plant the seed, and it appears the seeds are sprouting. E Online is reporting that frat boys in South Carolina who were "duped" into appearing in the Borat flick, and saying some rather racy stuff I am told (sadly, I have still not yet seen the movie), are suing:
The young men charged the studio with fraud; rescission of contract; statutory and common law false light, for framing their comments to make them appear "insensitive to minorities"; appropriation of likeness; and negligent infliction of emotional distress.
To think, you can sue someone for "tricking" you into revealing your true feelings. No wonder the world thinks Americans lawsuit happy.

08 November 2006

Threat to Judiciary Averted

Yesterday I wrote about several state ballot initiatives that threatened the independence of judges. I am happy to report that these state initiatives lost in yesterday's election. Furthermore, the threat to the federal judiciary posed by a Republican-controlled House of Representatives (several months ago the House was considering various ways to control judges) is no longer. The Democrats took control of the House yesterday, and they presumably are not interested in meddling with the Judiciary Branch.

07 November 2006

Election Day in America

Today Americans go to the polls to vote on a variety of things. Most of the media attention has been focused on the races in Congress, with the Democratic Party apparently poised to take control of the House of Representatives and possibly the Senate. The key word here is "apparently." But one of the foundations of the American form of government is under attack in many states, and most Americans have no idea and probably little understanding of what's at stake. In several states there are ballot initiatives (follow link for definition) that are aimed at making the judiciary branch far less independent. As the Washington Post recently noted:
These dangerous "grassroots" (read: carefully and professionally coordinated) measures are boldly and brashly designed to scare judges away from making tough and sometimes unpopular decisions about some of the most controversial issues of our time. They are designed to make the judiciary bend to the will of the masses.
Several FFA classes, most notably Common Law Legal Systems and U.S. Constitutional Law, consider the importance of an independent judiciary in the common law legal system, especially in the United States where the government is built upon the idea of separation of powers. These voter initiatives are aimed squarely at making judges far less independent, and they could change the way Americans are governed in the future. What could be more important than that?

03 November 2006

Privacy Rankings

I came across this fascinating report concerning privacy protections in countries across the world. The report, conducted by a UK privacy advocacy group called Privacy International, ranks the U.K. as a "surveillance society" and the United States as an "extensive surveillance society." I realize that a discussion of privacy protection is only tangentially related to subjects covered in the FFA, but I couldn't help posting this. Simply fascinating stuff. As an aside, and it probably comes as no surprise to FFA students, Germany ranks near the top when it comes to privacy protection. But that may soon be changing.

01 November 2006

Supreme Court Looks at Punitive Damages

By the end of their FFA studies, students, one way or another, are familiar with the concept of punitive damages, which is defined by law.com as:
damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
And even before starting the FFA, many students have read about the huge damage awards given out by American juries to people who smoked all their lives, for example, and are now suing because smoking adversely impacted their health. Many students find these awards to be excessive, especially when they are given in cases involving people who have engaged in activity, smoking for example, that everyone knows is dangerous.

Well, many American also feel these awards have become excessive and just yesterday the United States Supreme Court took up the question concerning what kind of limits can be placed on juries who hand out these awards. The case in question comes from Oregon and involves a person who smoked for 47 years and eventually died of lung cancer in 1997. A jury awarded the smoker's family $800,000 to compensate for their loss, and then slapped a $79.5 million punitive damage award on the cigarette company Philip Morris.

This case is instructive on a variety levels for FFA students. First, it shows that the courts can place limits on juries. Second, it discusses how punitive damages are used and possibly misused in the civil law system. Finally, it hints at something of which many students might not be aware. Higher courts often send an appeal back to the lower court for further review. Generally, either the appeals court doesn't understand the lower court ruling and wants further classification (see Justice Souter's comments in the article to which I have linked above), or the appeals court wants to give the lower court a "second chance" to apply the law properly.

Many Court observers said this particular case would be one of the most important upon which the Court would rule this year. Now it looks like the Court will simply send this matter back to the Oregon Supreme Court for further clarification.

31 October 2006

Borat Tricked Me. Can I Sue?

There is a great piece on the Slate Magazine website about whether the people who were tricked into appearing in the new Borat movie, Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, can sue under a variety of legal claims. As the article notes, these people all had to sign the "standard release form" used by the entertainment industry. This agreement is basically a contract that prohibits people from suing the producer of the movie because they didn't like what movie did with their image. The article does a nice job explaining some of the potential legal claims that are barred by these release forms. The article ends with this question:
The release form seems to cover all the bases, but it's not clear if it precludes all legal action. A participant might claim that he was tricked into signing the contract under false pretenses.
An interesting question in light of the emphasis placed upon volition in determining whether a valid contract exists.

30 October 2006

Flag Burning Ban Floated in U.K.

In our U.S. Constitutional Law class, the idea of flag burning has a special place in our discussion of freedom of speech. It's special because: 1) Congress tried twice to outlaw burning the American flag and failed both times because the Supreme Court said such a ban violates constitutional rights ; and 2) this example illustrates just how far reaching the right to free speech is in the United States. I've never really given much thought as to what other countries do with this issue. Can one burn the German flag in Germany? I don't know. How about in the U.K.? Up until today I didn't know the answer to this question either. But it appears the answer is YES, one can burn the Union Jack and not be prosecuted. But that may change. According to the BBC, Scotland Yard is floating the idea of a flag burning ban under the guise of curbing violent protests. Does the simple act of burning a flag amount to violence? Should this be protected as speech under all circumstances? We will discuss this further in U.S. Constitutional law next semester, but in the meantime, it's food for thought. And anyone who had British Constitutional Law last semester, feel free to explain (using the comments feature on this blog) whether such a law would be upheld by the British courts. I simply don't the answer, but I'm curious.

26 October 2006

A Costly Comma

The New York Times ran a story a few days ago on the case I talked briefly about in Common Law of Contract class concerning comma use in a contract. I was a bit off on how much money was at stake (my terrible memory had me thinking 100s of millions when in fact the comma placement is worth $1 million), yet the point remains the same. Drafting a contract very carefully, even down to comma use can save one a lot of trouble. As the NYT reports:
If there is a moral to the story about a contract dispute between Canadian companies, this is it: Pay attention in grammar class. The dispute between Rogers Communications of Toronto, Canada’s largest cable television provider, and a telephone company in Atlantic Canada, Bell Aliant, is over the phone company’s attempt to cancel a contract governing Rogers’ use of telephone poles. But the argument turns on a single comma in the 14-page contract. The answer is worth 1 million Canadian dollars ($888,000).

25 October 2006

Contract Claims for a Date Gone Wrong

One of the first things we discuss is Common Law of Contract is the idea of oral contracts. As Prof. Lundmark's handout (see handout 1) notes, the "ready provability of oral contracts" distinguishes common law from civil law. But how far does this leniency toward oral contracts go? Good question and one that reared its ugly head in a story that has become legendary on the Internet. The story involves Internet dating, the age-old question of whether the dinner bill should be split on the first date, and the remedy for failed expectations when the date goes bad. Remedy? A post at quizlaw.com explains how one rejected and dejected dater tried to use contract law to reclaim the money he spent on a first date. It's a funny (pathetic?) story that's worth a quick look.

24 October 2006

Good Grammar Links

Over at the Legal Writing Prof Blog, they have posted some great links to online resources for students who are looking for help with English grammar. My personal favorite, and one I use for class, is a website run by Purdue University called OWL. If you have any question about grammar, I strongly suggest taking a look at one of these sites.

22 October 2006


The target audience for this blog is the students in the University of Muenster's Foreign Law Program (Fachspezifische Fremdsprachenausbildung), however anyone with an interest in the Common Law legal system should find something of interest here. It seems like practically everyday I come across some news item, blog post, law review article, etc. that relates to one of the common law subjects being taught in the Foreign Law Program. Thus, the purpose of this blog is provide a space to post links to and brief commentary on these items of interest, with the hope that students may find at least some of the items useful in their quest to understand this legal system that is indeed foreign to them. Finally, I hope students and others interested in the topics posted here will feel free to leave comments, ask questions and raise issues in the space provided on this blog. Enjoy.