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.  

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.

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.

$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.

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.

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!

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.

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. 

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.

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.

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. 

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. 

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.

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.

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.   

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.

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.