Sleeping Judges

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

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

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Supreme Court Allows High Speed Car Chases

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

Views on Guantanamo

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

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

Withdrawing the War Power

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

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

Bush, the Commander Guy

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

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

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

Civil Liberties in an Age of Terror

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

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

Appeals Court: Fight over Bible Display Moot

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

Happy Birthday Justice Stevens

Last week United States Supreme Court Justice John Paul Stevens celebrated his 87th birthday. At 87 Stevens is the third oldest Justice in Supreme Court history. The record is held by Oliver Wendell Holmes, who was 90 when he retired from the Court. Stevens is currently the longest serving member of the Court (31 years), but he would need to serve until 2012 to break the record of service held by Justice William O Douglas (36 years). Students may remember that one is appointed to the Federal Court in the United States for life. Most judges take this seriously and either die in office or retire well beyond the "normal" age of retirement. These lifetime appointments are somewhat unique in the Common Law system. Judges in England must retire at age 70, while Supreme Court Justices in Canada must step down upon reaching age 75.

Court Reverses Itself

A decision handed down by the U.S. Supreme Court last week nicely illustrates several recurring themes in most of our common law courses. Early on students learn that because of the concepts of precedent and stare decisis courts are suppose to follow rules created earlier in time by higher court decisions. They are then taught that the highest court in most common law countries are not really obligated to follow their own past decisions, only the lower courts are. Finally they realize that when high courts don't follow their own past decision it's primarily because some or all of the members of the court have changed.

Last week's decision illustrates this point very nicely. In 2000 the United States Supreme Court struck down a law prohibting a particular kind of abortion procedure because it failed to make an exception that would allow the procedure to be used if needed to protect the health of the woman. This exception has been part of Supreme Court abortion rulings for well over 30 years. Last week the Court reversed itself saying that such a law was valid despite the fact that no exception for the woman's health existed. So what changed between 2000 and 2007? Simple really. President Bush was able to appoint two new members to Court because of the death of one Justice and the retirement of another. Those two appointments shifted the majority view of the court on this matter in a way that basically led the Court to reversing itself.

The Deliberative Body

In last week's Constitutional Law classes I put forth the idea that of the Houses of Congress (Legislative Branch), the Senate is the far more deliberative body. In support of this I explained how Senators serve six year terms, which means they are a bit less influenced by public opinion and more willing to look closely at issues. More importantly, though, is the filibuster power. It takes only 41 senators to stop debate on a bill. 41 you may ask. Well, as I explained last week it takes 60 senators to terminate the filibuster power being used on a piece of legislation. A recent debate in the United States Senate over prescription drug prices nicely illustrates how this power works. Follow the link below to an Associated Press article describing this debate and see if you can understand exactly what happened, and more importantly why a minority of Senators was able to stop the bill in question from being voted on by the full Senate.

• Senate Blocks Medicare Drug Price Bill
  

Canadians Celebrate Charter of Rights

Canadians are celebrating the 25th anniversary of the passage of the Charter of Rights, Canada's version of a bill or rights enshrined in the constitution. Prior to it's passage, Canadians were protected from government abuse by the Canadian Bill of Rights, which was federal law that could be changed at the whim of Parliament. By adding rights to the Constitution itself, Canada took the important step of making these rights basically untouchable by the majority-elected Parliament and subject only to Supreme Court interpretation and/or amendment of the constitution itself, not an easy task. In celebration of this anniversary, the Toronto Globe and Mail polled Canadian legal scholars to see what are the ten most influential Supreme Court cases interpreting the Charter. Not surprisingly many of the cases deal with issues that much of the western world, and specifically the United States, has been grappling with for the past few decades: abortion, gay rights and the rights of criminal defendants.

Electoral College

Yesterday during the introduction lecture for U.S. Constitutional Law we discussed the many ways that the American form government created by the Constitution is far from a direct democracy. One example given is how the President is elected, where the winner of the popular vote can still lose the election, as was the case in 2000 when Al Gore won the most votes across the country and still lost the election. The reason for this, as we discussed, is the Electoral College that actually elects the President (click here for more on the Electoral College). As I mentioned in class, in all but two states the winner of a given state gets all of that state's Electoral College votes. Thus, a person could win a big state, say Florida, by only a few hundred votes. Yet the loser of the state gets absolutely none of that state's Electoral College votes, in Florida's case 27 votes (see above map for allocation of Electoral Votes among the states). To make a long story short, another state seems to be joining Maine and Nebraska in allocating their Electoral College votes differently. Maryland has just passed legislation that would award all of its Electoral College votes (10) to the winner of the national popular election and not the person who receives the most votes cast in Maryland. This is obviously part of a movement to make the Electoral College irrelevant without having to change the U.S. Constitution.

Canadians Want to Elect Judges

The selection of judges in common law countries varies from jurisdiction to jurisdiction. In the United States, where you have a federal court and 50 individual state court systems, the selection of judges is a mixed bag. All federal judges are appointed by the President for life terms. But the selection of judges at the state level varies. A growing number of states allow their citizen to elect judges, like they do other political offices. It appears that a majority of Canadians like the idea of judges campaigning for their spots. The Toronto Globe and Mail reports that two-thirds of Canadians want to abandon their current judicial selection system and replace it with elections. Not everyone in Cananda thinks this is a good idea. Ontario's Chief Justice questioned whether the country's judicial system would remain impartial noting that:

if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

The Chief Justice also cautioned that money needed to run judicial campaigns could lead to abuse.

Posts Resuming

I will be posting again this week with the start of the new semester. Stay tuned.

Is Defending Guantanamo Detainees Unpatriotic?

The answer seems to be yes, at least for one high ranking U.S. Department of Defense official. Jurist Legal News and Research (operated by the University of Pittsburgh) has a great summary of how US Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson believes that some of the nation's top law firms are acting against the country's interest.

In an on Federal News Radio Thursday on the fifth anniversary of the US military prison, Stimson predicted that "when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line in 2001 those CEO's are going to make those law firms choose between representing terrorists or representing reputable firms." The former Navy lawyer said "It's shocking...The major law firms in this country...are out there representing detainees."

Advocates for such things as the Rule of Law and fairness immediately criticized Stimson. As the current American Bar Association President rightfully said,

Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work -- and doing it on a volunteer basis -- is deeply offensive to members of the legal profession, and we hope to all Americans. The American Bar Association supports lawyers who give of their time and expertise defending those involved in legal actions. In fact it is one of the basic tenets of the Association's Second Season of Service, that lawyers should perform pro bono and volunteer work.

A Defense Department spokesperson quickly backed away from Stimson's comments saying they did not reflect the official view of the Department. Let's hope so. Stimson himself eventually tried to reverse himself using the age-old excuse "my comments were taken out of context." Right.

Semester Break

I will not be posting material during semester break (Feburary & March). I will resume posting in early April.

Judge's Pay In America

Recently the Chief Justice of the U.S. Supreme Court said that the government was facing a constitutional crisis. Was he talking about attempts by the Bush Administration to increase the power of the Executive Branch? No. In fact he was talking about the wages received by federal court judges. In our Common Law Legal System class, I noted that many people who are appointed to courts in England and the United States actually take a rather large pay cut by becoming a judge. According to Chief Justice Roberts, this is taking a toll on the judicial branch of the U.S. government. There is an interesting commentary on the Law. com website on this topic that is worth checking out.

What is an "American Baby"

The U.S. toymaker Toys R Us recently ran a competition whereby the "first American baby" born in 2007 would receive a $25,000 bond. The apparent winner was born in New York City at the stroke of midnight on January 1st. After naming the baby of Chinese immigrant Yan Zhu Liu as the winner, the company quickly revoked the prize claiming that the baby was not an "American baby" because the parents are not citizens or legal residents of the United States. The award was then given to a child in Georgia, whose parents were both "born and bred" Americans. A firestorm erupted as Chinese-American pressure groups cried foul. The company, sensing a public relations disaster, quickly reversed itself again and gave the $25,000 prize not only to Ms. Liu's child, but also allowed the child born in Georgia to keep its prize. The company even decided to give the award to a third child, whose parents are immigrants from El Salvador. Apparently, the fine print contained within the sweepstakes' rules limited winners to children born to American citizens or legal residents, but the large print simply said "American baby", raising some interesting contract interpretation questions. With our Common Law of Contract exam fast approaching, here is another question to ponder. Why is a competition like this one deemed an offer and not an invitation to treat?

10 Worst Civil Liberties Violations in 2006

Slate Magazine writer Dahlia Lithwick has come up with a list of "The 10 most outrageous civil liberties violations of 2006." Of course she is talking about civil liberties being violated in the United States (Slate is a U.S. magazine started by Microsoft in 1996). The list contains some well-known issues such as the treatment of detainees at Guantanamo Bay, Bush's wiretapping scheme, and the Military Commission Act of 2006, which created military tribunals to try the Guantanamo Bay detainees. It also contains a few items that didn't receive as much media attention. For those who are interested in American politics and especially American constitutional law, the article is worth a look.

Santa's Butt Can Be Displayed

Well, it can be displayed on beer bottles at least, according the Maine Bureau of Liquor Enforcement. Last month I wrote about a First Amendment case in the State of Maine concerning a beer bottle label showing a cartoon of a bare-bottomed Santa. According the Associated Press, the State of Maine will allow bottles with this label to be sold in stores. State officials admitted that a Court would probably find that the labels are protected by the First Amendment's free speech provision.