16 December 2016

Nothing Obscene About Giving the Finger

At least according to a Pennsylvania Appeals Court there isn't. As Prof. Noah Feldman writing over at Bloomberg News, the case before the court:
involves facts that would be funny if they weren’t tragic in the everyday sense of the term. Jason Waugaman was dropping off his children, 6 and 7, at the apartment building of his ex-wife, Kacie Boeshore. She came down to meet them in the parking lot; Waugaman was kissing the kids goodbye.
According to Boeshore’s testimony, as she walked away with the kids, Waugaman said something she couldn’t hear. She turned around, walked back and stood several feet in front of his car demanding to know what he’d said. Instead, Waugaman drove off, giving his ex the finger and (Boeshore testified) narrowly missing her.
Police in Hampton Township, Pennsylvania, near Pittsburgh, charged Waugaman with reckless endangerment for the driving and disorderly conduct for the gesture. A judge acquitted Waugaman of the first, more serious charge, but found him guilty of disorderly conduct under a state statute that makes it a crime to intentionally “cause public inconvenience, annoyance or alarm” by using “obscene language” or an “obscene gesture.”
Students are encourage to read the rest of the article as it clearly explains why courts are so reluctant to categorize something as non-speech. Students in my constitutional law class will know what I am talking about here (at least I hope they do).

07 December 2016

England Considering Raising Small Claims Court Limits

Students in my introduction to common law courses learn that England has a multi-tiered system of civil procedure. At the one extreme are the complex cases where the parties have the ability to undertake all kinds of pre-trial preparation. At the other end is are the small claims cases where the amount is so small that it makes no sense to hire a solicitor. In between is a tier where the process is probably too complex for a claimant or defendant to appear without representation.

At the moment, personal injury claims with potential damages of more than £1,000 are barred from the small claims process and must be heard using the more expensive and complex middle tier process. Recently, the Ministry of Justice announced that it would like to raise the limit to £5,000. This would result in more cases being heard using the small claims process, a process that normally does not require parties to hire legal representatives. As the Law Society Gazette points out, The Law Society is none too pleased about this development, claiming that it will result in courts becoming clogged and parties obtaining less for their injury than they otherwise would. Of course, solicitors also will lose some business.

Follow the link to the Law Society Gazette to obtain a better understanding of how this system works and what these changes might mean for parties.

29 November 2016

Judicial Review in UK News

Students in my Introduction to Common Law courses in Münster and Osnabrück eventually hear me struggle with explaining the concept of judicial review in England. This phrase is used in a much more narrow sense than it is in the United States, which results in this American struggling to clearly explain how it works. Well a recent case that is headed to the UK Supreme Court provides us with an excellent example of what judicial review is and how it works in England. The case involves a young woman living in Northern Ireland who wished to terminate her pregnancy. The wonderful blog Legal Cheek explains:
In 2012, A — who was 15-years-old at the time — fell pregnant, but was unable to obtain a termination in her home country because of its stringent anti-abortion laws. The Abortion Act 1967, s1 of which lays down the mechanism for a legal abortion, does not apply in Northern Ireland, meaning women can only legally access the procedure if her health is at serious risk. Women who have been raped cannot access abortions legally, nor can victims of incest or women carrying foetuses with fatal abnormalities. The appellant did manage to terminate her pregnancy by travelling to a private clinic in England at the cost of £900, but has now brought a judicial review against the Secretary of State for Health, Jeremy Hunt, on two grounds.
The grounds included: 1) a failure by the Executive to abide by its duty to order facilities in Northern Ireland to provide the woman with termination services and 2) a failure by the National Health Services to provide such services to women in Northern Ireland as provided by an Act of Parliament. Interestingly, the second claim is being brought under the European Convention of Human Rights.

In short, this case illustrates nicely the difference between an appeals court hearing an appeal and engaging in judicial review. An appeal involves questioning whether the lower court or government body made an improper decision under the law. Judicial review, on the other hand, asks whether the government acted improperly or failed to act when it was required to. The case will be heard soon by the UK Supreme Court.  

24 November 2016

Nuisance in the News

It's rare that a dispute involving property law makes its way onto this blog, but a recent one caught my eye and is most certainly worth mentioning here. Students in my Introduction to American Law course should be familiar with the concept of nuisance, a legal claim that can be brought to stop activity that is interfering with a property owner's right to enjoy his property. At issue in the case I came across is an amazing Christmas light display (Warning - readers who are environmentally conscious might want to avert their eyes). In this instance it was the city who filed the lawsuit on behalf of neighbors who had complained for years about the brightness of the growing light display. Apparently, this display has become so well known, it is now a tourist attraction, complete with double decker buses rolling through the quiet streets of this neighborhood! To find out what happened in the case, students should check out the video and accompanying news article.

22 November 2016

The "Did Not Vote" Won

I came across this interesting map on Twitter a few days ago that really drives home the point about how pathetic voter participation is in the United States. The map looks at how many eligible voters there are in each state and then sorts the vote by people who voted for the various candidates and those who did not vote. In all but only handful of states the people who did not vote for President outnumber those who voted for a particular candidate. The map then awards the Electoral College votes to the "did not vote" category in each state where they outnumbered a particular candidate and comes out with a landslide victory for "Did Not Vote" in the Electoral College.

What Jurors Can Say After a Trial Comes to the Supreme Court

In class we learn that as a general rule, jurors are not allowed to testify about what happened in the deliberation room during deliberation. The origins of that rule, as well as it limits, are discussed in this vocabulary rich article by Prof. Garret Epps in the Atlantic Magazine:
Every American knows that, if charged with a crime, he or she has a right to “a speedy and public trial by an impartial jury.” What can a defendant do if the jury “decides” by the impartial flip of a coin? Three centuries of common law cases suggest that the answer is “nothing.” That’s because courts usually won’t allow jurors to testify about what happened behind closed doors. Next week, the Supreme Court will hear a case testing whether that rule applies even when two jurors swear the deliberations contained overt racism against the defendant. A ruling either way would have important implications for a core part of the American criminal justice system––the right to an impartial trial by jury.

20 November 2016

$19 Million Spent By Outside Groups on Judicial Elections

How we select our judges in the United States is perhaps one of the things that surprises students in my introduction courses the most. Almost three quarters of the states in the United States place the names of judges on election ballots, and let the voters decide whether they should remain on the bench. Some do this using a process called retention, while others allow for open, competitive elections, just like any other elected office.

As is the norm in the United States, most people obtain their information about candidates for elected office via television commercials. These commercials are usually sponsored by the candidates themselves, but increasingly outside political action groups are funding commercials for the candidate of their choice. The same holds true for judicial elections. According to the Marshall Project, political action groups not directly affiliated with a political party or a candidate spent over $19 million on judicial elections this past election cycle.  The article goes on to note that this spending for the most part failed to unseat their intended targets. This, however, will likely not dissuade people from contributing to these efforts in the future.

Those interested in a amusing take on the idea of electing judges should watch the John Oliver piece above. Be warned, this is HBO, so the language might be a little rough.

18 November 2016

England Raises Maxmimum Age for Jury Service

News items in the Daily Mail don't usually catch my attention, but one from a few days ago did and will also be of interest to students in most of my courses. The headline: "Top age limit for jurors to rise by five years to 75 from next month - adding THREE MILLION people to the jury 'pool'" The article goes on to give some interesting facts:
It is thought the move to introduce a new upper age limit - first proposed in 2013 - could add an estimated three million eligible 70 to 75-year-olds to the overall jury 'pool', meaning the number rises by a tenth from around 31 million to 34 million.

Roughly 178,000 people in England and Wales undertake jury service each year. Officials estimate that between 3,000 and 6,000 of the average annual jury service number would be aged between 70 and 75 after the change.

16 November 2016

New ECHR Video

A bit off topic, but I recently came across a great video (in English) explaining the role of the European Court of Human Rights. Very well done!

15 November 2016

Judges as Politicians

The election of judges in the United States (no all, and none at the federal level) is perhaps one of the more surprising aspects of the American legal system that my students encounter. The idea, as I have noted on this blog before (here, here, here and here) is quite controversial but based on the belief that judges will be more accountable to the public if they have to stand for election. Adam Liptak of the New York Times recently noted that judges who are elected act a lot like politicians. His piece is worth a read for an overview of some of the recent studies conducted looking at the impact of elections on judicial decision making.

14 November 2016

Another Candidate Loses After Winning

Unless you have been in a cave for the past week, you are aware that Donald Trump won the election for U.S. President this past Tuesday. What you might not be aware of is the fact that Hilary Clinton actually received more votes. This is the fifth time in the nation's history that the person with most votes lost the election. As all of my students know (or at least should know), this anomaly is caused by the Electoral College system we use to select our President. The fine folks over at the National Constitution Center break down the ways this system might be changed, but more importantly, summarize the reasons why this system was adopted in the first place. If you have asked yourself over the past week why those crazy Americans use this system, you can find no better answer than the one provided in this post. 

10 November 2016

Supreme Court Caseload

Lyle Denniston of the National Constitutional Center has a wonderful short piece explaining why/how the Supreme Court can avoid important cases, especially in light of it being short-handed at the moment. As students in my courses learn, the Court receives thousands of petitions for appeal each year but usually only hears about 80 of them.

08 November 2016

When Judges Get Punished

Something interesting is going on in Alabama. For the second time, Alabama Supreme Court Chief Justice (an elected position) Roy Moore is going before a judicial misconduct panel because he violated the rules that judges in Alabama must play by. This time he is before the panel for ordering all state court judges to ignore a U.S. Supreme Court ruling making same-gender marriages legal. The point here is that judges in the United States can be and are punished for violating codes of ethics that all judges must follow.

07 November 2016

The Politics of Picking Judges

As students in my courses have or will learn, federal judges in the United States are nominated by the President and confirmed by the United States Senate. While this process clearly involves politicians and politics, there are many who believe that the selection process should not and cannot be politicized. While I tend to agree with the goal, I do think it ignores the reality of today's hyper-partisan America. The Washington Post recently chastised both candidates for President for making the nomination of next Supreme Court Justice a centerpiece of their campaigns. The short editorial is worth a read. 

06 November 2016

The Candidates and the Constitution

Slate magazine recently asked who would do more harm to the constitution. Their results can be found here. A word of caution, Slate tends to lean to the left, which surely colors how it defines "damage." Nevertheless, this is a good read for anyone interested in how an election for the presidency can potentially impact the constitution. 

05 November 2016

Electing Judges

Just wanted to call attention to an interesting (and short!) podcast from National Public Radio about how state judicial elections in the United States are becoming increasingly political. It sounds obvious that an election would be political, but some elections (called retention votes) traditionally were not mired in ideological battles. But this has slowly been changing, as the podcast nicely points out.

04 November 2016

The Independence of the FBI Director

Last week's bombshell that FBI had reopened its investigation concerning Hilary Clinton's private email server has fixated the public's attention on one man: the director of the FBI. Students might be wondering what exactly is the role of the FBI Director and how independent he is from his superiors in the Executive Branch. As usual, the wonderful Constitutional Daily blog provides us with some answers. This is well worth the read if you are interested in the American election.

03 November 2016

Making Sense of the High Court's Brexit Decision

Brexit was back in the news yesterday as the High Court handed down a decision that could force the UK government to bring the question of whether to invoke Article 50 before the full Parliament. I am on shaky grounds here writing about this because the case deals with British constitutional principles that are a bit over my head. I write only to clarify something students in some of my courses have heard me say in class: courts in England do not have the final say on what the British Constitution says.

To understand this case and how the question of law facing the court does not contradict what I have said in class, one must first realize that the government was trying to make a decision on its own without first getting approval from Parliament. Put differently, Parliament was not being allowed to have any say on the issue. Furthermore, the constitutional principle being applied by the government was one created by "convention" (basically tradition) whereby the executive (formerly the King) can make decisions under certain circumstances without first getting the approval of Parliament (See this BBC piece for a bit more context).

As the High Court decision notes, "the most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses." So far so good. The Court then goes on to note that no constitutional convention allows the government to override legislation passed by Parliament. Clearly this is also true. Finally, the Court claims that the decision to exit the EU would override legislation passed by Parliament in 1972 that basically allowed EU law to be incorporated into and ultimately in most case be superior to laws passed by Parliament. The court notes that both parties to this case agreed that the the question of whether the government is violating parliamentary sovereignty is one for the courts.

In short, what I said in class still stands: Parliament has the final say over whether the laws it passes are constitutional. However, the courts can weigh in when the claim is that the government is exercising a constitutional convention in a manner that violates concepts of parliamentary sovereignty. At least I think that is what the court is saying.   

02 November 2016

The Electoral College

With the presidential election fast approaching, it might be a good time for a refresher on just how exactly the American President is chosen. At the heart of this system is the "Electoral College," the body that actually chooses the President.  The National Constitution Center's Constitution Daily has a "five things you need to know about the Electoral College" post that is a must read for anyone interested in some of the more unique questions concerning this admittedly odd system of electing one of the world's most powerful leaders.

01 November 2016

Checks and Balances on Display in Supreme Court Nominee Battle?

Students in all my course by now know, if they didn't before, that the U.S. Supreme Court is starting its term this year short-handed. The death of Justice Antonin Scalia in February left a vacancy on the court that still has not been filled because the U.S. Senate refuses to vote on President Obama's nominee for the position. The President recently weighed in on this. Its worth the read if only to get a better understanding of how the system works, or doesn't.

27 October 2016

Racial Bias on Juries

Last session the U.S. Supreme Court tackled the issue of racial discrimination in the selection process of juries. This session the Court will face questions about how to deal with racial discrimination among members of the jury itself. Kenneth Jost over at the Jost on Justice Blog provides a nice summary of the case:
Miguel Angelo Peña Rodriguez was convicted in 2007 of groping two teenaged sisters in a darkened bathroom at a Colorado race track. The evidence in the brief trial consisted of little more than the girls’ identification — first in a roadside “showup” and then in court. The defense lawyer challenged the identification on a variety of well recognized grounds. Peña denied the accusation and was backed up by a fellow Hispanic who said the two were together in one of the race track’s barns at the time of the offense.
      The jury deliberated for 12 hours before convicting Peña of three misdemeanor counts but acquitting him of a more serious felony charge. In juror interviews after the verdict, his lawyer gathered affidavits from two members of the jury that one of the jurors had made a number of blatantly racist statements during deliberations about Peña and his alibi witness. None of the jurors had volunteered any racial prejudices during jury selection.
Reuters has more about how the Justices reacted to this case during oral arguments earlier this month.

24 October 2016

The Interactive Constitution

Readers of this blog will know or soon come to know that one of my favorite websites is the one published by the National Constitution Center. Not only is the site a wealth of information run by an important and worthwhile organization, it also provides people interested in the U.S. Constitution with tools to help them understand the history and meaning of the text. For at least a portion of my students this semester, getting a grip on the meaning of this text will be critical to performing sufficiently in class. As a study aid for my U.S. Constitutional Law courses students can do no better than download the Interactive Constitution app from the National Constitutional Center's website. Many of my lecture slides now link to content found in the interactive constitution. Having it handy on your "Handy" will make understanding what we discuss in class a whole lot easier.

15 June 2016

Race and Jury Selection

Students are often surprised when I tell them how juries are selected in the United States. Once they fully grasp the idea of peremptory challenges, the inevitable question is can these challenges be used to exclude someone because of race. The answer, according to the United States Supreme Court in Batson v. Kentucky is absolutely not, but proving racial discrimination during jury selection is another matter. Despite what looked like a recent Supreme Court decision affirming Batson, my former employer the American Civil Liberties Union recently posted to their blog an article explaining how race still plays a significant role in jury selection despite these Supreme Court rulings. It is well worth a read.

13 June 2016

Supreme Meals

The Washington Post recently posted an article about how the Justices of the United States Court get along with one another despite some very stark disagreements over the law. The secret appears to be good wine, elaborate meals and no talk about work.

09 June 2016

Minority Judges in England

My favorite UK legal blog "Legal Cheek" recently reported something we talked about in my course "Introduction to Common Law Legal System," namely the dearth of minority judges in England.
Stats from the Judicial Appointments Commission show that, of the lawyers who applied to be recorders (low-level judges) last year, only 10% of BME candidates were ever shortlisted. This is compared to 20% of white candidates. Of those who made the shortlist, 29% of BME lawyers were recommended for appointment. This is 17 percentage points less than the corresponding figure for white lawyers (46%).
It should also be noted that, since 2012, not a single BME candidate has applied to or been appointed to the Court of Appeal.
One reason cited for the changes made by the 2005 judicial selection reforms was the desire to diversify the bench in England. While the bench most surely has become more diverse, it appears that there is still a lot of work to do.

08 June 2016

Towards a Minimalist Court?

As students in my courses this semester know, the United States Supreme Court is operating with one less Justice than their normal number of nine due to the recent death of Justice Antonin Scalia and the Senate's refusal to give President Obama's nominee for the vacancy a vote. While many of the President's supporters have criticized this development, one former Obama Administration official is actually celebrating the decisions this short-handed Court has made over the past few months. Law Professor Cass Sunstein argues that the recent decisions by the Court have shown a great deal of judicial restraint, which he argues is good for two reasons:
The first is that decisions should be narrow rather than wide. If the court is asked to strike down an affirmative-action program, it should focus on that program, not on affirmative action in general. This holds as well for abortion, national-security surveillance and presidential powers: Decide the case at hand and leave other problems for other occasions.
The second idea is that decisions should be shallow rather than deep. In a free-speech case, for example, minimalists believe that the court should avoid the most controversial claims about the foundations of liberty. Instead it should seek rulings that can command support from people who have different views on the deepest questions. The justices might agree that the government may not regulate speech unless it poses a clear and present danger, but that view could be rooted in distrust of public officials, respect for human dignity or belief in the marketplace of ideas—and there is no need for them to pick a preferred theoretical foundation.
The idea of judicial restraint is one that German students should probably understand, as the German Constitutional Court is sometimes also criticized for failing to exercise so-called " richterliche Selbstbeschränkung." A 2014 SZ article provides some recent examples.

05 June 2016

Arkansas Considering Ending Judicial Elections

The Arkansas Democrat-Gazette is reporting that "in the aftermath of state Supreme Court races rife with negative advertising funded by out-of-state groups, a special legal task force is recommending that Arkansas end elections for its top court." The idea behind electing judges is to make them accountable to the people, but as more and more special interest groups spend money on these campaigns, questions are being raised as to whether judges are truly accountable to the people when their election is so heavily dependent on money from special interest groups.

30 May 2016

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”.

24 May 2016

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.

20 May 2016

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.

19 May 2016

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.

18 May 2016

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. 

16 May 2016

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

13 May 2016

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.

12 May 2016

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.

11 May 2016

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.

09 May 2016

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.

05 May 2016

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.

02 May 2016

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.

30 April 2016

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.

28 April 2016

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.

25 April 2016

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.

22 April 2016

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.

21 April 2016

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.

11 April 2016

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.

28 January 2016

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? 

18 January 2016

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. 

Making Courts More Transparent

Whether high court hearings should be televised has been an ongoing topic on this blog (see here, here and here). In the United States, at least at the federal level, the Supreme Court has rejected calls to televise its hearings, although the audio version of the hearings are made available after the fact. In the UK, the Supreme Court has taken transparency one step further by releasing video of its hearings after the fact. And apparently these videocasts are becoming increasingly popular. To get a better understanding of the debate over cameras in the courtroom, I suggest taking a quick glance at the Debatepedia page on the topic.

14 January 2016

Natural Born Citizen and the Presidency

The natural born citizen question is currently front and center in the Republican primary contest for President of the United States. Students in my U.S. Constitutional Law course will know that a requirement to be President is being a "natural born citizen" of the United States. As I said in class, clearly this disqualifies someone who became a naturalized American citizen, for instance Arnold Schwarzenegger. But what about an American born overseas to American parents? Are they natural born citizen? Or must the person be born in the United States? The issues is being discussed (again) in the United States because Texas Senator Ted Cruz, who is running for President, was born in Canada to an American mother and Cuban father. He has his American citizenship through his mother, of course, but does being born in Canada disqualify him from running for the Presidency? Donald Trump thinks so. So do some legal scholars. The National Constitution Center's blog "Constitution Daily" has more.

13 January 2016

The Limits to Advertising

My favorite legal ad in Detroit. These signs are everywhere there.
Anyone who has been to the United States and driven on its highways will know that lawyers have the right to advertise their services. I am always amazed at how many of these signs I see along Interstate 94 in Detroit on my way to and from the Detroit airport. In a 5-4 decision the the U.S. Supreme Court held in Bates v. State Bar of Arizona that legal advertising was protected by the First Amendment and presented no harm to the practice of law in general. But there are limits as a few lawyers in Texas apparently forgot. The crime of barraty in Texas bars lawyers from soliciting individual clients, otherwise know as ambulance chasing. This, according to the Supreme Court, is perfectly acceptable and different from an advertisement which targets the public in general, not individuals.  

11 January 2016

Behind the Scenes at the U.S. Supreme Court

The NPR Politics Podcast has an interesting interview with U.S. Supreme Court Justice Stephen Breyer. In the podcast Breyer takes us behind the scenes at the Supreme Court. It's well worth the listen.

07 January 2016

Constitutional Standing

The Blog Religion Clause reports that a lawsuit challenging Montana's law prohibiting polygamy is on the verge of being dismissed for lack of standing. Students in my U.S. Constitutional Law course might want to take a quick look at this post and see whether they understand why this case might be dismissed. If you understand the reason, then you understand constitutional standing.

06 January 2016

The Meaning of Religious Freedom

Students in my U.S. Constitutional Law course were recently introduced to the confusing and sometimes contradicting Supreme Court jurisprudence related to religious liberty. This confusion is primarily the result of a struggle that has been taking place among the Justices on the Supreme Court for several decades over the meaning of these words:
Congress shall make law respecting the establishment of religion or free exercise thereof.
Some see the words "respecting the establishment of religion" as a command for strict church/state separation, while others see it simply as a bar on the federal government from creating a national church or religion. The gulf between these two positions is enormous and multiple views landing somewhere in between these two poles have been expressed by Justices, making this perhaps the most confusing area of American constitutional law.

Justice Antonin Scalia is perhaps the most outspoken advocate on the court of a very limited reading of the so-called establishment clause. Speaking at an event in Louisiana recently, the Justice said:
the idea that government must be neutral between religion and unbelief is not grounded in the country’s constitutional traditions and that God has been good to the United States because Americans honor him.
Scalia went on to note that the government should not favor one religion over another, but there is nothing in the American constitutional tradition that demands equal treatment between religion and non-religion.

05 January 2016

Failing to Answer as a Strategy

A quick review of how a case is filed in common law countries. The plaintiff begins by filing a pleading called a complaint (or claim in England), which states the facts of the case (from the plaintiff's perspective) and the legal claims. The next step calls for the defendant to file an answer to the complaint. In class we learned that failure to file this answer will usually result in the plaintiff winning the case. In the United States this is often referred to as a default judgment or in England a judgment in default. Recently the Chelsea Football Club was sued by one of its employees. After receiving the claim, Chelsea opted not to file an answer, thus resulting in them losing the case. An amateur mistake made by the football club's high paid legal advocates? Not all. To learn why check out this post at Legal Cheek.