14 December 2009

Is Adultery a Crime?

Leaving aside the moral implications of my question, what I am really asking here is does the act of adultery violate a criminal law. At the turn of the century . . . the 19th century . . . all states had laws punishing adultery. The punishment ranged from flogging to imprisonment. But today no one talks, for instance, of charging Tiger Woods with a crime. But could we? Apparently, the answer is yes, at least in some states. The Associated Press has more.

13 December 2009

The CSI Effect

For years now prosecutors in the United States have been saying that crime shows such as CSI create unrealistic expectations as to what forensic evidence can prove in a criminal trial. Academics have dubbed this the "CSI Effect," and some wonder whether the fictional depiction of the court system is now negatively impacting how the real court system functions. So it should not be surprising that criminal defendants now also feel that fiction may be interfering with their right to fair trial. This was the argument that was made last week before the Supreme Judicial Court of Massachusetts, where a man convicted of murder claimed that the jury that convicted him was unduly influenced by the CSI Effect. The Boston Globe has more, but here is a hint as to how the justices responded to this appeal:
Margaret H. Marshall, chief justice of the Supreme Judicial Court, expressed frustration while hearing an appeal in a Lowell first-degree murder case in which the defense claims a trial judge committed an error when he referenced the television show “CSI: Crime Scene Investigation. . . .’’

Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.

27 November 2009

A Forgotten Civil Rights Warrior

Yesterday's New York Times has an interesting piece on an important figure in the early history of the civil rights movement: Claudette Colvin. Who, you might ask. You and anyone else who has casually studied the American civil rights movement. Rosa Parks we know. It was her unwillingness to move to the back of the bus that sparked the modern civil rights movement. But Ms. Colvin did the exact same thing almost nine months earlier! Furthermore, her actions were also planned and defended by civil rights activists like Martin Luther King. The Times has more. It is well worth a read.

25 November 2009

Is A Lawn Mower A Vehicle? Nope.

Earlier this month I posed an odd question: Is a lawn mower a vehicle. As you may recall, the Georgia Supreme Court was forced to face this question because someone had been sentenced to a long prison term for stealing a lawn mower. The prison term was only possible because the law makes a distinction between stealing motor vehicles and simple garden tools. Thus, if a riding lawn mower is considered to be equivalent to, say, a car, the longer prison term was justified. However, if the riding mower is nothing more than a garden tool, the longer prison term could not be justified. A few days ago, the Georgia Supreme Court finally cut through this legal Gordian knot. The Associated Press reports:
A riding lawn mower may have four wheels, a powerful engine and can cost as much as a used car. If it's stolen, however, the Georgia Supreme Court concluded Monday that it's not a motor vehicle.

The 4-3 decision overturned the conviction of Franklin Lloyd Harris, who was convicted of felony motor vehicle theft after he loaded a Toro riding mower in 2006 from a Home Depot in Dalton into his van and sped away. Because Harris was a repeat offender, he was sentenced to 10 years in prison.

This is clearly not an easy call, as the 4-3 split indicates. The case can be found here. It is an interesting read.

23 November 2009

A True Groundbreaker

Brown v. Board of Education is often viewed as being the first major victory in court in the fight to end legal segregation of the races in America. While it most certainly did change the legal landscape concerning racial discrimination, it was not the first victory in this battle. That distinction goes to Lloyd Gaines. The New York Times explains that:
On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.
The New York Times has more on this fascinating individual and case.

15 November 2009

When Must A Judge Step Aside?

Can a United States federal court judge hear a case in which he or she may have an interest in it's outcome? For instance, what if the judge happens to be a hunting buddy of the defendant in a case. Or the judge's son works for the law firm representing the plaintiff. Must the judge step aside? The simple answer under current law is no. But that may change if some members of Congress have their way. Law.com notes:
Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices.
More on this can be found at law.com.

13 November 2009

Suing Judges

In interesting article in yesterday's Wall Street Journal begins by saying:
People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a higher court or, if they suspect judicial wrongdoing, ask a bar association to investigate. But one thing people can't generally do is sue. The rationale behind the notion -- called absolute judicial immunity -- is straightforward: Judges shouldn't have to defend themselves in court whenever they issue a ruling that makes someone unhappy.
Two recently filed lawsuits in the state of Pennsylvania are trying to pierce this immunity. For more on this, I highly suggest reading the full article.

11 November 2009

Judges Reject Rendition Suit

Extraordinary rendition. This is the program used by the U.S. government shortly after September 11, 2001, whereby terrorist suspects were kidnapped and sent to third countries where they could be interrogated using torture. One such victim, a Canadian who was picked up in Kennedy International Airport in New York and whisked off to Syria where he was detained and tortured for a year, was told by the United States Second Circuit Court of Appeals that he cannot sue the U.S. government because Congress did not authorized such a suit. Ben Weiser, of the New York Times writes:
In saying that he could not sue officials involved in his rendition, the United States Court of Appeals for the Second Circuit ruled by a vote of 7 to 4 that Congress could always create a civil damages remedy for harms suffered through rendition, but it had not done so.

“We decline to create, on our own, a new cause of action against officers and employees of the federal government,” Chief Judge Dennis G. Jacobs wrote in a 59-page majority opinion joined by six other judges.

Judge Jacobs said that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from government officials for a constitutional violation.
Setting aside the question of how Congress could have created a remedy for violations arising from a program about which it was not informed by the Bush Administration, there are some very interesting points to take away from this article.

First, in class students are told that hearings in the Court of Appeals are presided over by a three judge panel. So how do we get a 7 to 4 vote here? The decision was actually one made by an "en banc" panel. See here for a full discussion of this.

Second, boiled down to its simplest form, the argument being made by the majority here is they do not have jurisdiction to hear this case. Remember, Article I of the U.S. Constitution gives Congress the power to create lower federal courts and determine the courts' jurisdiction.

Finally, one could argue that this is an example of there being no common law in American federal courts. Many scholars argue that the only sources of law in the federal courts are statutes and the Constitution, not common law. When the judges say "we will not create a remedy," what they are really saying is we will not create a common law (judge-made) remedy.

08 November 2009

Is A Lawn Mower a Motor Vehicle?

This question, as hard as it may be to believe, is currently before the Georgia Supreme Court. Why? Because people who steal "motor vehicles" in Georgia can be sentenced to long prison terms. So can someone who steals a riding lawn mower be eligible for one of these long prison sentences? The answer to this question hinges on whether a lawn mower is a motor vehicle. If so, then the defendant in this case can be sentenced just like he would have had he stolen an automobile. In the end, this is a classic case of statutory interpretation where the court's primary objective is to determine the intent of the legislature when it enacted the law. Law.com has more on this particular case. Once the Georgia court rules, I too will have more.

06 November 2009

Case Before the Court

We are now a full month removed from the First Monday in October, which, as many American know, is the first day of new U.S. Supreme Court term. There are several very interesting cases on the Court's docket this session, ranging from whether films depicting the brutal death of animals are protected by freedom of speech to whether juveniles can be sentenced to life in prison without violating the 8th Amendment's prohibition on cruel and unusual punishment. The Wall Street Journal had an excellent piece on the new term last month. It can be found here.

04 November 2009

Vote or Appoint?

Judges in the United States come in all forms. Some are appointed for life (all federal judges and some state judges), some are appointed and then face the electorate for a retention vote. Put another way, if the public doesn't like the judge, they can vote him or her out of the judiciary. And some become judges through open, partisan elections. Supporters of the later form of selecting judges claim that allowing the citizens to chose the judges makes the courts more accountable. But critics say that making judges run for election requires them to raise campaign funds, making them beholden to special interest groups who gave them money. The critics may have one more example to justify their opposition to judicial elections: the race for an open seat on the Pennsylvania Supreme Court. The Associated Press has more on this ugly race for the high court and how many in the Keystone State are now questioning whether this is the best way to select a judge.

03 November 2009

Time to Retire

Answering the question of how long one can serve as a judge in the United States is not easy. First, one must distinguish between the federal and state systems. In the federal system, the answer is as long as the judge wants. Federal judges are appointed for life and many serve until they die. In the states, the question is somewhat more complicated. Only a handful of states appoint their judges for life. A majority of states elect their judges by popular vote. Thus, one sits as a judge as long as one can continue to get elected. But a recent Associated Press piece sheds some light on the question of whether states who do not appoint their judges for life force their judges to retire at a certain age. To be honest, I had never given this question much thought. Turns out that over half of the states have laws or constitutional amendments that require their judges to retire at a certain age. In most of these states, 70 is the age of retirement. In Vermont it is 90!

30 October 2009

Get a License or Else!

The lawyer plays a central role in many of my classes. In my Introduction to American Law class, we learn what it takes to become a lawyer. What I generally do not cover is this questions: What happens to people who practice law without a law license? Usually cases dealing with this question involve instances where one is actually engaged in the practice of law is questionable. Put another way, we are usually not talking about someone who shows up in court pretending to be a lawyer. Normally, we are talking about non-lawyers offering services, such as drafting wills or trusts, that are legal in nature. One company in Ohio recently found out what happens when one crosses the line between simple consulting and the practice of law. The Columbus Dispatch has more.

29 October 2009

A Peek Inside the Court

During a recent visit to the University of Alabama, U.S. Supreme Court Justice Clearance Thomas gave UA law students and audience members a glimpse inside the otherwise secretive decision making process of the Court. As students in most of my courses learn, appellate arguments in the United States usually involve judges asking the lawyers of both parties numerous questions. A typical hearing before the U.S. Supreme Court looks more like an question and answer session than an argument being presented by lawyers. But according to Justice Thomas, this Q&A is at best unnecessary and at worst downright bothersome. The Associate Press reports:
Thomas - who hasn't asked a lawyer a question during arguments in nearly four years - said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama. . . .

Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court. "All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me.

The Tuscaloosa News has more on Justice Thomas' visit.

27 October 2009

Still On The Books

Fresh on the heels of our discussion in my course "The Law and Social Change" comes this piece from the First Amendment Center in the United States:

Watch your language out there, because profanity and blasphemy could lead to criminal charges. We might hope that First Amendment-protected free speech lets us utter profanities, blasphemies and other choice phrases that occasionally slip from our intemperate tongues. After all, the U.S. Supreme Court protected a man who wore a jacket into a Los Angeles County Courthouse bearing the words "Fuck the Draft." That led to the famous Cohen v. California (1971) ruling in which Justice John Marshall Harlan — a conservative during the Warren Court years — uttered a phrase that has become First Amendment lore: "One man's vulgarity is another's lyric." But hold on. Yes, in a free society adult citizens outside of special contexts (jobs, military, school) can speak their minds in the open air. But if you think old laws punishing profanity and blasphemy no longer exist, you're wrong — a surprising number of state laws still prohibit such speech. Even though the laws are rarely enforced, they are still on the books.
You can read more here.

20 October 2009

Welcome Back and Congrats to Medical Marijuana Users

After a long break, I will resume posting topics of interest to students in all of my classes on this blog. I'd like to start by revisiting a topic familiar to former students, and one that should be of interest to students in any of my classes where we discuss some aspect of the United States Government. As I wrote back in summer of 2008, medical marijuana users in states like California, where the use of pot for medical reasons was made legal under state law, were put in a bind several years back when the U.S. Supreme Court said that the federal government could arrest and prosecute people for using marijuana, a practice the Bush Administration was in favor of, because it violated federal law. Put another way, the use of medical marijuana was legal under state law but illegal under federal law. What was a medical pot user to do?

Unless you have been in a cave for the past year, you know that there has been a sea change in Washington D.C. with the election of President Obama, and it appears that this change is even reaching the medicinal pot users. How so? Well, the Department of Justice (the federal office responsible for enforcing the federal anti-pot laws) recently decided that the limited federal law enforcement resources may be better spent going after real criminals instead of people who are doing something perfectly legal under their state's law. They will no longer enforce federal law against medicinal pot users in states where the use of medical marijuana is legal.

For those new to this blog and/or this topic, this issue really illustrates: 1) how state and federal governments can have different laws, 2) how the laws can sometimes conflict, and 3) how a change in government can make a huge difference, among other things.

23 July 2009

Back in October

I will resume posting after the semester break. Until then.

22 July 2009

Can Non-Lawyers Judge a Judge?

Students in most of my classes have at some time or another become familiar with how the United States chooses its federal court judges. The short story: the President appoints and the Senate confirms. Students also know that there are no formal requirements needed to become a federal judge, other than being nominated by the President and confirmed by the Senate. In theory, the qualifications of the judicial nominee are to be tested via the Senate confirmation process. However, many of the members of the committee who question the nominee are not trained lawyers. This begs the question: How can non-lawyers judge whether a nominee is qualified to be a federal judge? David Ingram at Law.com has more on this.

10 July 2009

Sex Offender Registration Laws

Students in my debate and discussion class are familiar with laws in the United States that force convicted sex offenders to register with the county in which they live. Normally, the county publishes a list of convicted sex offenders living in the county. But some states have been taking this even further recently. Case in point: Florida, where state law says that a convicted sex offender cannot live within 2500 feet of a place where children might congregate. The impact of this law has created a real problem in larger cities like Miami. The Miami Herald has more (including a very fascinating video).

09 July 2009

A Ritual Worth Watching

Tony Mauro of the National Law Journal has a short, interesting piece explaining why next week's Supreme Court nominee confirmation hearings will be something to watch, or at least pay attention. Mauro's take can be found here.

24 June 2009

A Remedy for Torture

There is a very interesting case working its way through the American court system concerning torture. An American citizen, who was recently convicted of planning a terrorist attacks, claimed that he was tortured during his pre-trial detainment. The torture, he claims, was a direct result of legal memos drafted by one of President Bush's legal advisors. And now the tortured wants to hold the person who instigated the torture process accountable. The question for the court: can a detainee who was tortured sue the person responsible for providing the opinion that torture is legal. The answer, at least so far, appears to be yes. More on the very interesting Padilla v. Yoo case can be found at the online magazine Slate.

22 June 2009

The Rare Impeachment

Students in many of my classes have discussed at one point or another the process for removing the President, high executive officers and federal judges: impeachment. Between 1797 and 2008, only 17 individuals have been impeached, and of those only seven were removed. In short, this is a rare event in American history. Which is what makes last week's impeachment of U.S. Federal Court Judge Samuel Kent extraordinary. Judge Kent was recently convicted of obstruction of justice related to charges of sexual assault that were brought against him. Now in prison, Judge Kent remains a federal judge until he resigns or is removed. After last week's action in the House of Representatives, removal is looking increasingly likely. The Houston Chronicle has more.

UPDATE - According to the Associated Press, the process is now moving to the U.S. Senate.

19 June 2009

Commercial Speech

Just how much protection does commercial speech have under the First Amendment? That is the question that is being raised after Congress recently passed a law prohibiting tobacco advertising within 1000 feet (304 meters) of schools. The law contains other speech restrictions as well. Wednesday's New York Times has an interesting piece on the legislation, which President Obama says he will sign, and the constitutional issues. As the Times points out:
Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.

The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.

But the tobacco industry denies that any of its advertising is aimed at young people.
The American Civil Liberties Union (ACLU) has also taken issue with the law saying that the legislation’s limits on commercial speech are broader than needed to accomplish the goal of reducing under-age smoking, i.e. the law is not narrowly tailored.

18 June 2009

State Sovereignty

By now students in my constitutional law courses are likely sick of hearing me talk about the historical and on-going dispute concerning state sovereignty. As students will surely recall, this topic is the focus of our discussions concerning the Commerce Clause, Necessary and Proper Clause and the 10th Amendment. But rest assured that I do not drone on about this for nothing. This is a real and current debate, ever more so as this article in yesterday's Los Angeles Times points out.

It appears that some legislators in western states are not all that happy with President Obama and have decided that now is the time to challenge the power of the federal government. How do they intend to do this? Pass laws, especially dealing with gun control, that are in direct conflict to federal law with the hope that the courts will get involved in the dispute and overturn prior rulings that have given the federal government broad power. As the Times piece points out:
Supporters of the bill want the Supreme Court to eliminate gun controls and, eventually, curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use.
As an aside, don't you find it somewhat disturbing that the modern cases challenging federal power seem to only involve sex (U.S. v. Morrison), drugs (Gonzales v. Raich) and guns (U.S. v. Lopez)?

16 June 2009

The Role of Bias in Jury Selection

The Baltimore Sun had a very interesting piece in yesterday's paper about the role that stereotypes play in jury selection:
Before a high-profile federal trial began in Baltimore last month, lawyers for the three black defendants filed a motion claiming that the prosecution deliberately - and illegally - dismissed black jury candidates to pack the panel with whites.

"They want a jury that may be sympathetic to the death sentence," defense attorney Archangelo Tuminelli said.

But the judge ultimately ruled that the allegation was wrong. And, it turns out, the stereotype might be, too.
I highly recommend reading the rest of the article here.

15 June 2009

Same Sex Marriage

What is the future of same-sex marriage in America? Students in my American Constitutional Law courses learned that the federal courts have not been a very friendly place for gay rights advocates primarily because they have not been open to treating gay and lesbians as a "suspect class." Thus, federal courts have had no problem finding laws such as the military's Don't Ask Don't Tell policy or the Defense of Marriage Act to be perfectly constitutional. But lawsuits in state courts have recently been far more successful. Georgetown law professor David Cole has a wonderful piece in next month's New York Review of Books about the history and future of same-sex marriage in the United States. It is worth a quick glance. At the very least, students should consider the three reasons Cole says are put forth by the government as why laws banning same-sex marriage are rationally related to a legitimate government interest:
(1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state's interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.
Should any of these reasons be enough for the state to pass the rational basis test under the Equal Protection Clause?

10 June 2009

More in case you were wondering

A few days ago I posted a link to a Miami Herald story explaining why politicians do not want Guantanamo Bay closed. In short, no politician wants to be responsible for having these detainees moved onto American soil. Put another way, no one wants the detainees in their state or city. No one except a small town in Montana that is actually lobbying FOR the chance to house the detainees from Guantanamo Bay. CNN has more.

07 June 2009

Pot Revisted

Last year around this time I posted a piece about the medical marijuana law in California. My constitutional law students should be familiar with the case the concepts discussed as we covered both in class:
One of the more important recently decided Commerce Clause cases dealt with whether the federal government could enforce federal anti-drugs in California after voters there decided to legalize marijuana for medicinal purposes. (see Raich v. Gonzalez) The answer given by the U.S. Supreme Court was yes, the Feds can arrest people for using marijuana even if users are doing so pursuant to California state law. The question many students must have is: so is it still legal to purchase marijuana in California, under state law, for medicinal purposes? The quick answer is under state law YES, but people who use the drug still run the risk of being arrested by federal agents under federal law. But it gets even more confusing. The San Diego Union-Tribune newspaper recently reported that San Diego County is suing the State of California to repeal the medical marijuana laws. Lawyers for San Diego and San Bernardino counties will argue that the state cannot force counties to issue identification cards to qualified medical marijuana patients because the drug is illegal under federal law.
A few months later a California appeals court ruled that the federal law did not preempt the state law and ordered the two counties to issue medical marijuana licenses under the state law. The counties, of course, appealed their case to the U.S. Supreme Court (remember, because the federal law is at issue, the U.S. Supreme Court can have the final say). The Court declined to hear the case, letting the lower court ruling stand. As the L.A. Times reminds us:
Four years ago, the Supreme Court ruled that Congress and the federal government had the constitutional authority to regulate the sale and use of marijuana under its power over interstate commerce. The 6-3 decision, in the case of Gonzales vs. Raich, rejected the claim that personal use of homegrown marijuana was off-limits to federal authority. But the court did not rule on whether a state's law allowing medical use of marijuana was void because it conflicted with the federal law.
By rejecting the case, the Supreme Court is not saying that no conflict exists. It is simply saying that it does not want to review the California appeals court case. Thus, the issue is "settled" until the U.S. Supreme decides to revisit the issue via another case, if it ever does decide to do this.

05 June 2009

In Case You Were Wondering . . .

. . . why the U.S. Senate recently voted to withhold money from the President that could be used to close the detention center at Guantanamo Bay, this story from the Miami Herald does a nice job explaining why politicians are having cold feet over this issue.

29 May 2009

Are Justices Too Powerful?

Back in February the Washington Post printed a provocative article, which began:
If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?
If you are interested in the answers that more than a few law professors in the United States give to these question, I encourage you to read the rest of the article.

26 May 2009

Immunity from Criminal Prosecution

Students in my constitutional law courses know (or will know) that the President probably enjoys absolute immunity from criminal prosecution while he is in office. Most legal scholars maintain that the President must first be impeached before he can face criminal charges. But as this post over at the always informative Jurist website notes, judges do not enjoy the same kind of immunity from prosecution. U.S. Federal District Court Judge Samuel Kent recently was convicted of obstruction of justice related to a sexual harassment complaint filed against him. He is now serving 33 months in prison. However, Kent is still a federal court judge. Remember, the only means for removing judges in the federal system is via the impeachment process. This process, as one would expect, has already been started for his removal.

24 May 2009

Why Marbury Still Matters

Students of American Constitutional Law learn that Article III, the part of the Constitution that created the Supreme Court, did not actually give the Court the power to review the constitutionality of actions taken by the other two branches of government. This power was derived from the court decision, arguably the most important decision in American history, Marbury v. Madison. Newsweek recently had an interesting story explaining why Marbury is still relevant some 200 years later.

21 May 2009

More of the Same, Part 2

A few days ago I wrote about how the Obama Administration is defending of surveillance practices it inherited from the Bush Administration. But it's not just spying that apparently will remain the same. The much maligned practice of extra-ordinary rendition (the prisoner transfer program the involves kidnapping suspect terrorists and moving them to countries that have a . . . well . . . different view of torture than most western countries) apparently will also remain the government's anti-terrorism arsenal. The Los Angeles Times has more.

1 in 7 return to "terrorism"

The New York Times had a fascinating article in yesterday's paper about an internal U.S. Department of Defense report that claims 1 in 7 of the former Guantanamo detainees returns to "battlefield" against the United States. The article also talks about the dilemma facing the Obama Administration over what to do with the rest of the detainees still at Guantanamo. Some, according to experts, cannot be released and will have to face trial. But now members of Congress are balking at the idea of bringing some detainees back to the U.S. mainland for trial. In the article, F.B.I. director, Robert S. Mueller III, said that moving detainees to American prisons would bring with it risks including “the potential for individuals undertaking attacks in the United States.”

This quote left me wondering. How can moving people into American prisons increase the potential for individuals to undertake attacks in the U.S.? Does he mean the individuals who would be put in prison might engage in attacks? Or does he mean that now terrorists will have even more incentive (hard believe that is possible unless one thinks that people like Bin Laden have gone soft on the U.S.) to attack the U.S.?

17 May 2009


During a recent Constitutional Law lecture in Münster, a student asked who was counted for purposes of determining a state's population with regards to apportionment of the House of Representatives. As students in most of my classes have learned (or been reminded of) at some point or another, the number of representatives each state has in the House of Representatives is determined by the population of a given state. Most students are surprised to learn that every ten years a recount of the entire U.S. population is conducted via something called a census (this recount, incidentally is required by the Constitution). But I digress.

So who counts when determining a state's population? Everyone. That's right, citizens and non-citizens, legal residents and illegal residents, registered voters and non-registered voters, adults and children. Everyone. More information is provided here by our friendly Census Bureau (the fine folks who conduct this decennial recount).

As an aside, as part of my search for this answer, I came across information concerning a movement here in Germany back in the late 1970s to introduce a census. Apparently a planned census in 1983 was halted by the Bundesverfassungsgericht. More can be found here.

16 May 2009

The End of Affirmative Action?

The election of Barack Obama as President has some people wondering the whether programs that give preferences to racial minorities to correct for past discrimination are still necessary. National Public Radio recently hosted a half-hour discussion on the topic of Affirmative Action in the aftermath of the historic 2008 Presidential Election.

14 May 2009

How Big Must A Jury Be?

Popular culture has ingrained the belief in us that all juries have 12 people serving on it (the classic film "Twelve Angry Men" being the prime example of this). But the United States Supreme Court has repeatedly made it clear that having 12 people on a jury is not required by the U.S. Constitution. Two American law professors explain why it should be required.

Obama Nominee Blocked by Senate Republicans

Today's Washington Post contains an article about how members of the Republican Party in the U.S. Senate were able to block President Obama's nominee for Deputy Secretary of the Interior. The article provides a nice illustration of a few things that I have already addressed in many of my courses. First, that the President has the power to appoint officers of the Executive Branch. Second, that this power is not absolute because the U.S. Senate must confirm the President's choice. Third, that because of special rules that exist in the U.S. Senate, rules that are not found in the Constitution itself, a minority of Senators can block action in the Senate using something called a filibuster. As students may recall, the filibuster is basically non-stop debate. The Senate cannot vote on the matter at hand until the debate is finished, and under the rules of the Senate a filibuster can only be stopped if at least 60 Senators vote to stop it. The Democrats in the Senate were only able to muster 57 votes in favor of ending debate and thus the fillibuster worked in stopping the full Senate from voting on the confirmation. Take a look at the Post article for more.

12 May 2009

The More Things Change . . .

the more they stay the same, so the old saying goes. But is that true when it comes to spying on Americans? Put another way, did the election of Barack Obama as President change the surveillance tactics of the U.S. government? Not really, according to Wired's David Kravets.

11 May 2009

Banning the Flag

Can a public high school prohibit students from wearing T-shirts bearing the Confederate Flag? According to the Sixth Circuit Court of Appeals, the answer is yes. The court's decision, which is relatively easy reading, can be found here.

Court Says Florida Cannot Make Foreign Policy

Understanding who has what power in the United States can sometimes be confusing. Determining which branch of the federal government has what power is the easy part (O.K., not really). But more complicated are questions like: When does Congress have the power to regulate activity and when does that power belong to the states? But there is one area that the courts have been pretty consistent on when it comes to the question of who has the power: foreign policy. A recent case out of Florida provides a very nice example.

28 April 2009

Local Currency

Article I of the U.S. Constitution gives the federal government sole authority to print money. But that isn't stopping local businesses in cities like my hometown of Detroit from printing their own (il)legal tender. USA Today has more.

23 April 2009

Trying To Keep Up

It has been a busy few weeks for critics and defenders of the Bush Administration as numerous memos and reports related to the use of torture by U.S. officials have been released to the public. Trying to keep up with this flurry of information is daunting . . . but not impossible. Thanks to Foreign Policy Magazine's Passport Blog, you too can try to keep up with the latest news on the "war on terror" and torture. Take a look and remember, this is just the tip of the iceberg.

UPDATE - the Economist's Democracy in America Blog also has a torture news round-up. It seems as though torture is all anyone can talk about these days.

17 April 2009

Torture Docs Released

The Central Intelligence Agency (CIA) released documents yesterday related to torture techniques used by the prior Administration. The follows on the heals of the release of several legal memos by Attorney General Eric Holder that served as the legal basis in justifying the use of torture. ABC News has more.

15 April 2009

After the Fall

A while back I wrote about the impeachment of Illinois Governor Rod Blagojevich. In the last week the former Governor has been indicted AND signed on to star in an American reality show. I guess that answers the question of what happens to a person once they have been impeached.

03 March 2009

Parting Thought

Posting has been light because of the semester break. I will resume posting in early April. As a parting shot, I wanted to share a little something from the website of my local paper, which recently had an insert on Barack Obama. The following survey question was on the website for the newspaper:

Gibt Obama auch Ihnen Zuversicht?
Ja. Ich glaube, dass er überzeugende Antworten auf die globalen Probleme des 21. Jahrhunderts hat.
Nein. Er wird sich wie fast alle US-Präsidenten um amerikanische Interessen kümmern - um nichts weiter.

So let me get this straight, Obama and all past Presidents are judged by how well they have tackled global problems? If they have instead opted to tackle the problems facing the people who actually elected them, they are seen as merely protecting American interests and nothing more? Is this really a fair question? Not surprisingly, 85% of respondents opted for "Nein."

29 January 2009

When Congress Can Reverse the Supreme Court

When is the Supreme Court the law of the land and when is legislative overruling of the Supreme Court appropriate? Today President Obama signed his first bill into law as President. The bill dealt with equal pay for women. More specifically, it dealt with an instance where the Supreme Court interpreted a federal law one way, and Congress turned around and passed a new law which basically said that the Supreme Court's interpretation was wrong (by the way, this is what is meant by legislative overruling). Can Congress do that? Sure, but only when Congress is reversing the Court's interpretation of a FEDERAL LAW. It is different, however, if the Court says that a federal violated the U.S. Constitution. This is what is meant by the Supreme Court is the law of the land. The Court and only the Court has the last say on what is and what is not constitutional. But not every matter deals with the Constitution, and quite often the Court is merely asked to interpret a federal law that has nothing to do with the Constitution. The website Scotusblog has more.

28 January 2009

When Family Autonomy Goes Too Far

Students in my Introduction to American Law class recently learned that family law in the United States is primarily regulated by state law. I did, however, give some examples as to when federal law (or more specifically the federal constitution) comes into play in the area of family law. The primary example concerns a liberty interest that is sometimes referred to as familial relations. Put simply, there are some instances when the state, via family law, cannot interfere with the relationship between parents and children. But obviously this has its limits. A recent New York Times piece on parents who are being criminally charged after failing to provide their child with medical care led to her death illustrates the limits. The case concerns parents who believed that only God could heal their sick child. They are now claiming that using child neglect and endangerment laws against them violates their constitutional rights to freedom of religion. This sounds outlandish, but this area of the law is actually still somewhat unsettled in the United States, which is why this case is receiving a bit of attention. The Times piece is a must-read if you are interested in this topic.

27 January 2009

Debts and Marital Property

For those of you in my Introduction to US Law class, a recent story in the international press may have caught your eye and made you think. Former Lehman Brothers CEO Richard Fuld apparently "sold" his $13.3 million Florida home to his wife for $100 (or $10 depending on the news story you read). Why would he do that? Isn't it still a marital asset that can be claimed by a creditor? Based upon what we discussed in class, the answer is yes, but as a technical matter the answer is no for a variety of reasons. First, as a general matter, marital debt is shared just as marital assets are. But if shareholders of Lehman obtain a judgement for money against the former CEO, this debt could be considered personal to Fuld alone, not a marital debt. Thus, by transferring the home into his wife's name, it is possible that the home would be protected from creditors of Fuld. Second, Flordia has a law that protects the family home from creditors. Some have agrued that Fuld himself is not a Florida resident but his wife is. Thus, for her this is the family home and it could be protected from creditors under Florida law. You can find a bit more on this here (in German) and here (in English).

23 January 2009

The Treaty Power

Earlier this month two former members of the Bush Administration published on op-ed in the New York Times encouraging the Senate to use it's treaty power to keep President Obama check. The argument is simply breath-taking when you stop to consider that these two individuals played an important role in the Bush Administration's power grab after September 11. During their years in service, these two men were part of an effort to create an imperial presidency that had no use for the checks and balances built into the Constitution. They were part of an effort to keep secrets from Congress. They were part of a group that consistently told the Supreme Court it had no jurisdiction to review decisions made by the President.

So why do these two who once advocated for a supreme President now want Congress to keep the new President in check via the Treaty Clause of the Constitution? Simple really. Pursuant to the Treaty Clause, the President needs 66 votes in the Senate to ratify a treaty. These two former Bush aides are scared to death of the U.S. losing it's sovereignty by signing treaties dealing with global warming and international war crimes tribunals (read their op-ed and you will see what I mean). By claiming that the President should be forced to use the usual treaty route (the article explains, and student in my Constitutional Law class learn, how Presidents can get around the Treaty Clause), they are banking on the 41 Republican members of the U.S. Senate voting against such treaties, effectively defeating ratification.

A simply shameless argument, really, but not wholly unexpected. Look for more of this kind of back-tracking by people who supported the imperial presidency of George Bush. Now that they are out of power, an all powerful President doesn't seem like such a good idea. Go figure.

21 January 2009

Rendered to Guantanamo

Students in my Debating Controversial Supreme Court Case class recently learned about one of the cases dealing with the detainees being held at Guantanamo Bay, Rasul v. Bush. Part of our discussion focused on whether the men being held there are/were truly the "worst of the worst" who were "picked up on the battlefield" as the American public was repeatedly told by Bush Administration officials. The New York Times recently ran an article about a former detainee who was picked up in Indonesia and whisked off to Guantanamo as part of the extraordinary rendition program being run by the U.S. government. The other thing you should check out if you are remotely interested in this topic is a radio program put together by the public radio program This American Life. Acts One and Three by Jack Hitt chronicle the lives of a few of the detainees. If these two pieces don't make you question whether Guantanamo housed the "worst of the worst" than nothing will.

20 January 2009

It's All About "Hope" . . .

. . . sometimes "change" too. The Economist has a great graph charting the use of the words "hope" and "change" in past inauguration addresses. Interestingly, the Presidents who used the word "hope" in their address the most were mostly Republicans. And only Bill Clinton used the word "change" more than "hope". Check out the graph and then check back after the speech to see how Barack Obama fits into this Hope-o-meter.

UPDATE - the graph on The Economist blog has been updated to include Obama's speech.

19 January 2009

King's Vision Fulfilled

Today is Martin Luther King Day in the United States. It is somehow fitting that the inauguration of the nation's first African-American President takes place a day after. I cannot help but wonder whether a recent CNN poll showing that 2/3 of African-Americans feel that King's vision has been fulfilled and the Obama's rise to the presidency are not somehow related. According to CNN:

The poll found 69 percent of blacks said King's vision has been fulfilled in the more than 45 years since his 1963 "I have a dream" speech -- roughly double the 34 percent who agreed with that assessment in a similar poll taken last March. But whites remain less optimistic, the survey found.

Thus, in one year the number of African-Americans who feel King's dreams have been achieved has doubled! Can the election of one man really have changed so many minds? Or is this just a case of people being swept away by the symbolic significance of what we will see tomorrow?

18 January 2009

The Government's Lawyer in THE Court

While students in my Debating Controversial Supreme Court Cases course are tackling the social and cultural issues underpinning many of these controversial cases, I am afraid that I have been lax in explaining what happens when these cases actually reach the Supreme Court for argument. In this post I want to address the role of the federal government in cases that reach the Court, or more specifically the role of the Solicitor General.

The United States Solicitor General is the person chosen by the President to argue cases on behalf of the government in the Supreme Court. In addition to actually arguing cases, the Solicitor General may also file amicus briefs in support of a party whose position is favoured by the government.

So why write about this now? Simple. President-elect Barack Obama has appointed the Dean of Harvard Law School, Elena Kagan, to be the next U.S. Solicitor General. This is significant because she will be the first female to hold this post (it should be noted that a woman held this post for six months on a temporary basis during the transition between the Clinton and Bush administrations). The fact that the media has not highlighted this landmark achievement for women may say much about how the presence of women in high powered positions is changing in the United States.

More importantly, Kagan's selection and the people with whom she is surrounding herself illustrates the dramitic shift that is taking place in Washington. For instance, Kagan has chosen a lawyer who argued before the Court on behalf of the rights of detainees at Guantanamo as one of her deputies. Put another way, people who spent the last eight years arguing against positions taken by the Bush Administration will now be representing the government before the Court!

UPDATE - the New York Times has more on Ms. Kagan, including the fact that she will be the first woman to fill the post.

15 January 2009

The S Word

No, not that S word. I am talking about the one conservatives in the United States like throw around when talking about those on the left side of the political spectrum: Socialist. Students in my Law and Society class may be a bit surprised that some in America still believe there is a Red menace in America. Didn't that become passe with the end of the McCarthy era? Apparently not, at least not for those who get their news from Fox News. Under the headline: "Obama Climate Czarina Was Member of Socialist Group's Environmental Commission," Fox tells it's readers that:
Carol Browner, President-elect Barack Obama's choice to be his climate czarina, served until last summer as a member of a socialist organization whose mission is to enact progressive government policies, including toward environmental concerns like climate change.
Can you imagine? The person soon-to-be President Obama wants to deal with climate issues aims to enact progressive policies regarding climate change. The nerve!

05 January 2009

Limiting it's own Reach

Students of common law, and more specifically American law, know that the rulings of the U.S. Supreme Court form binding precedent on courts below it. But happens when the Supreme Court itself says that it's decision is only limited to the case before it, and thus not binding on future cases in lowers court? That is exactly what the Court did in the infamous case of Bush v. Gore. That is the case, you may remember, that gave George Bush the presidency after the hotly contested 2000 election. Using the now famous words: "Our consideration is limited to the present circumstances," the Court limited, or at least tried to limit, the reach of its importance in future cases. Mission accomplished? Until recently yes, but a spate of election-related lawsuits have called into question whether the Court has successfully limited the reach of it's ruling. The New Times has more.