Sleeping Judges

As the Wall Street Journal Law Blog recently pointed out, the media in America has said a lot lately about the election of judges and how much judges are paid, but they missed an interesting story that also deals with the quality of the judiciary--sleeping judges. That's right, apparently there is a problem in countries across the globe concerning judges who simply cannot stay awake while on the bench. The WSJ Law Blog writes:

Ronald Grunstein, a professor in Sydney, Australia, specializing in human sleep physiology, investigated 15 cases of “judicial sleepiness” around the world. His conclusion: Judges should be more actively monitored for falling asleep on the bench, a problem that could have consequences in the courtroom. The study is included in the current issue of Sleep, the official journal of the Associated Professional Sleep Societies. Here’s the 26-page study

.

Supreme Court Allows High Speed Car Chases

A few weeks ago the United States Supreme Court handed down a very interesting ruling concerning high-speed car chases. The question before the Court was whether a person injured during a high-speed car chase with police could sue the police for his injury. The case in question dealt with an individual who was trying to get away from the police. After several minutes of a high-speed chase (captured on this fascinating video), police decided to end the chase by nudging the fleeing suspect's car, causing the suspect to lose control and crash. The fleeing suspect was severely injured and sued police. The Court found the suspect could not sue police for his injuries. But what really makes this case interesting is 1) the video and 2) Justice John Paul Stevens' dissenting opinion where he criticizes the Court for engaging fact finding. Students of Common Law Legal System will remember that appellate courts in the United States generally don't engage in fact finding. That is job of juries and trial court judges. But in this case Justice Antonin Scalia, who wrote the majority opinion for the Court, used evidence that was not used by lower courts (the video) in making his decision. Stevens said that the Supreme Court should not be engaged in this kind of fact finding. His colleagues (and I would argue the Constitution), however, did not agree. Stevens was the lone dissenter in this case.

Views on Guantanamo

Last week in class I made the off-hand remark that most Americans don't care about what is happening at Guantanamo Bay. My opinion was based more upon anecdote than fact. However polling data does appear to support my claim. A 2005 poll found that while Americans were beginning to question the war in Iraq, they still firmly supported the government's handling of the detainees at Guantanamo. While the rest of the world considered the American policy to border on lawlessness, seven-out-of-ten adults in America believed the prisoners there were being treated "better than they deserve" (36%) or "about right" (34%). However, a year later polls found that 70% of American believed that the detainees should not be held indefinitely without being charged with some kind of crime.

Why the reversal? First, the second poll was taken just after the U.S. Supreme Court had issued it's opinion in Hamdan v. Rumsfeld saying that the U.S. must provide detainees with some kind of hearing to challenge their detention. Arguably, before this case caught the media's attention most Americans had no idea these detainees had never been given the chance to challenge their detention. Second, Americans are becoming increasingly suspect of many things the Bush Administration is doing as part of their "War on Terror." With that said, it's striking that no Presidential candidate from either party dares to mention Guantanamo. That's likely because most Americans still believe that Guantanamo houses the "worst of the worst" terrorists, as we have been told repeatedly by the President. As an award winning radio story nicely illustrated recently, the idea that the "worst of the worst" are at Guantanamo is just part of the long line of untruths spread by the Administration concerning it's war on terror policy.

Withdrawing the War Power

In our Constitutional Law classes we have been discussing the powers possessed by each branch of the American government. As we learned, Article I of the Constitution gives Congress the power to declare war. While the last actual declaration of war was just after the attack of Pearl Harbor, Congress has on many occasions passed resolutions giving the President the power to engage in hostilities on foreign soil. Most recently Congress did this with Iraq. While never specifically declaring war against Iraq, Congress did pass a resolution allowing the President to send troops there should he see fit. As we know, he saw fit. Currently the Democrat-controlled Congress and Republican President are at odds over when, or whether, to bring the troops back from Iraq. Congress has tried to pass funding bills that also include timetables for troop withdrawals. The President has resisted this effort by vetoing such bills.

Now comes an interesting proposal from someone who herself wishes to be President one day. Sen. Hillary Clinton has proposed that Congress withdraw the resolution it passed several years ago giving the President the authority to attack Iraq. The question that legal scholars are surely asking themselves at the moment is, can they do that? Once Congress gives the President the power to make war, can Congress withdraw that power? My hunch is no. But it does raise an interesting question.

Bush, the Commander Guy

This week we will be discussing the President's power of Commander-in-Chief in our Constitutional Law classes, although it should have been already clear after our discussion of Congress's war power that the President is indeed the commander of the armed forces. Apparently, President Bush feels that Commander-in-Chief is too formal a title for an "average Joe" like him.

“The question is, ‘Who ought to make that decision, the Congress or the commanders?,’’ Mr. Bush said. “As you know, my position is clear – I’m the commander guy.”

That's right, the Constitution might say that Bush is the Commander-in-Chief, but in his mind he is simply "the commander guy."

Civil Liberties in an Age of Terror

Spiegel Online International (Spiegel's English website) has an excellent, albeit long, piece on the delicate balancing act currently taking place between the war on terror and civil liberties. I suggest taking a look at it because it discusses many issues with which German law students are familiar. Sometimes reading complicated foreign language text is easier if the reader is already familiar with the topic. Furthermore, while we don't talk specifically in the FFA about some of the issues raised in the text, there are general principles with which all FFA students will recognize, especially those concerning Constitutional Law. For instance:

In addition, in any constitutional democracy government measures against terrorism and suspects of terrorism ought to be subject to review by an independent and neutral institution just as in non-exceptional cases. When civil liberties are concerned, the appropriate institution is the judiciary. Governments tend to invoke the grand values when it comes to fighting terrorism, and they paint gloomy pictures in order to justify extraordinary means. Courts operate from a certain distance, do not have to look to the next election, and can employ a more sober view. There is no good reason to exempt anti-terror measures from judicial scrutiny. In delicate cases in-camera procedures are better than no judicial control at all.

Appeals Court: Fight over Bible Display Moot

The Associated Press reported last week that the 5th Circuit Court of Appeals ruled that a dispute over the placement of monument depicting an individual holding the Bible on public property was moot. In a few weeks American Constitutional Law students will be introduced to the concept of mootness. The short story on mootness is the Court no longer felt there was an active dispute that needed a remedy. Those students in my Conversation and Presentation Skills for Lawyers are by now all too familiar with why religious displays on government property cause concern. Students in both classes may want to take a quick look at the linked article above. It's a good introduction to both mootness and the display of religious symbols on public property.