The Senate and the Filibuster

Last Monday, students of American Constitutional law were introduced (or possibly re-introduced) to the concept of a filibuster, which is unique to the U.S. Senate. By way of review, a filibuster is a tool that Senators can use to block debate of a bill they do not like. The filibuster itself is basically an endless debate that, because of it's duration (endless), prohibits the Senate from voting on a bill. The filibuster can only be stopped by way of a Cloture vote, which requires 60 Senators to vote in favor of ending the debate. Thus, a super-majority is needed to stop this delay action being taken by a minority of Senators. The mechanics of how this works are not really important for this class, especially considering that the Constitution itself does not grant this power to the Senate; so it's really outside the scope of this class. Nevertheless, there is an article in today's New York Times explaining how Republicans in the Senate are using the filibuster to block a vote on a bill that would make it easier to sue employers for wage discrimination. The article is worth a read if you are interested in how the filibuster can be used.

The Commerce Clause and the Environment

Understanding Congressional power, especially as it relates to the Commerce Clause in Article I of the U.S. Constitution, is not an easy task. My hunch is that many students walked out of yesterday's lecture on the Commerce Clause wondering, "what the heck is LeMieux talking about." As I said yesterday, the central question here is what are the limits of Congressional power? That's really what's at the heart of discussions concerning the Commerce Clause. An excellent example of this concerns whether Congress can pass laws aimed at protecting the environment. As Benjamin Wittes, of the Atlantic Monthly, pointed out in a 2005 article:

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?

His point is, if enough judges on the Supreme Court believe that Congressional power under the Commerce Clause is not very broad, might the Court start striking down laws aimed at protecting endangered animals and wetlands? Good question and one that makes environmentalists in the United States lose sleep.

What is a Secret

During yesterday's American Constitutional Law lecture, I spent a good deal of time discussing the concept of separation of powers, and I noted that the Bush Administration has taken actions over the past several years that raise significant questions about the balance of power in the U.S. government. While these battles between the branches don't receive a great deal of attention here in Germany, one particular case has: the case of Khaled El-Masri, a German citizen who was "kidnapped" by the CIA as part of the Bush Administration's extraordinary rendition program. This case nicely illustrates the interplay between the three branches of government when it comes to something as sensitive as national security.

El Masri's case was dismissed by a federal court because the government claimed his lawsuit involved state secrets. As the Washington Post noted in an editorial earlier this week:

IN RECENT YEARS, a number of possibly deserving litigants have been denied their day in court after the Bush administration claimed that too many secrets would be spilled in an open trial. The cases of people who alleged they were subjected to illegal eavesdropping or were handed over to a foreign country in an "extraordinary rendition" have been fended off in this way.

But now Congress is trying to change this by passing a law that would allow courts to look more closely at the state secrets defense that has been raised in these cases. This is a classic example of one branch (Legislative) trying to place limitations on another branch (Executive) by giving the third branch (Judiciary) more power to check government actions. Whether Congress has the power to do this will be a topic we will address next week.

Until April

This will be my last post until the beginning of the new semester in April. As election news continues to dominate the headlines from the United States, lost in much of this coverage is the debate about how Americans vote. In an earlier post I noted that the U.S. Supreme Court is set to decide a case from Indiana concerning whether a rather strict voter ID law violates the U.S. Constitution. Today's New York Times has an interesting op-ed piece from former President Jimmy Carter and former Secretary of State James Baker. Their solution: require an ID to vote but make this ID free and require states to actively ensure that voters have an ID. While some won't be satisfied with this solution, it seems to me to be a fair and one that has the potential to solve this very divisive problem.

New UK Supreme Court Taking Shape?

As part of their introduction to common law, students in Münster's FFA program are given an overview of the court structure in England. This is an exciting time to be learning about the UK court system (well, we really learn about the system in England/Wales) because it is in the midst of unprecedented change. Receiving most of the attention is the new UK Supreme Court, slated to open its doors in 2009. This new high court will basically replace the House of Lords as the top court in the UK. The plan is for the 12 Law Lords who make up the current top court to become members of the new Supreme Court. But eight of the twelve current Law Lords are set to retire before 2009 (remember, Law Lords must retire at age 75 in the England/Wales system, although the retirement age for most other judges is 70).

Reports out of England (yes, I am aware that this link is to a page run by the University of Pittsburgh law school and that Pittsburgh is NOT in England) indicate that the current Lord Chief Justice will likely sit as the head of the new court when it opens in 2009, replacing the current head of the Law Lords who is set to retire sometime this year. The other three vacancies will likely be filled under the new appointment system, which may include submitting an application and doing interviews.

Self-taught lawyers in America

Here is something I may have overlooked in lectures concerning how one becomes a lawyer in the United States. It appears that there are still states that allow people to teach themselves about the law. Put another way, there are states that do not require one to have a law degree to practice law. Here's how it generally works. The states of California, Maine, New York, Vermont, Virginia, Washington and Wyoming allow one to study in a law office (basically an apprenticeship) before sitting for the state bar exam. To be honest, I had no idea that these states still have this as an option. There is a long tradition of self-taught lawyers in the United States, Abraham Lincoln being probably the most famous, but as this article points out, they are a dying breed. Only 44 self-taught lawyers applied to take state bar exams in 2006, and of those only 18 passed (a 41% passage rate). Nationwide, the passage rate was 67%. Maybe going to school to study law isn't such a bad idea.

Fewer High Court Cases Explained

About a year ago, I posted comments concerning the trend in both the U.S. and Canada of fewer cases being heard by their respective supreme courts. In Canada, the top court hears only about one-third of the case it did back in the 1990s. In the U.S., Justices' caseload has been cut in half since the mid-1980s. Is this a case of lazy (or distracted) judges? According to Solicitor General (the person appointed to represent the Federal Government in cases before the U.S. Supreme Court) Paul Clement, the answer is NO. Clement claims that fewer cases being heard by the Court is a result of fewer laws being passed by Congress. He goes on to say that there also are fewer instances where the Circuit Courts (court of appeals) have differing opinions. Valid explanations.

The Comma Debate Heads to the Court

Back in December, I wrote about how the question of whether gun ownership is a fundamental right under the U.S. Constitution is currently under review by the U.S. Supreme Court. The New York Time recently published an excellent guest editorial about the role of the comma in this debate. Yes, I said the role of the comma. You see, part of the problem with the Second Amendment is its odd punctuation. The Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Notice the placement of the commas! It's confusing at best, unintelligible at worst. As the Times piece explains, advocates of gun rights claim the second comma, after "State," endows individuals with the right to bear arms. The U.S. Court of Appeals for the D.C. Circuit agreed with this interpretation, and struck down a Washington D.C. law attempting to regulate gun ownership. Other advocates talk about "absolute phrases" and "main clauses;" things that would make a grammarian proud but leave the rest of us perplexed.

The author of the Times piece makes an interesting claim about how commas were used at the time the Second Amendment was written, and essentially claims the Court should ignore the commas altogether. Give the article a quick read to see how comma placement can cause headaches, especially when the commas were placed by people who use different grammar rules than we use today.

Voter ID

One of several important cases argued before the U.S. Supreme Court this week involves whether states can require people to show a picture ID (driver's license, passport, any other government-issued identification card with a picture on it) before being allowed to vote. The arguments for strict voter ID rules deal with stopping voter fraud. The arguments against such strict rules focus on access to voting as a large segment of lower income people in the U.S. may have difficulty meeting a strict ID test (put another way, they may not have a picture ID). For more on this issue, I suggest taking a listen to this piece on National Public Radio and reading this article in the New York Times. I've never asked anyone before what voters in Germany have to show before they can vote?

Stare Decisis and the U.S. Supreme Court

Upon being introduced to common law, students quickly learn about the important role that precedent and stare decisis play. As students know, or should know, the U.S. Supreme Court is not bound by its own precedents. Or put another way, there is no vertical horizontal stare decisis at the highest level of the American federal judiciary system. In class we discussed several reasons why the Supreme Court may decide to overrule itself. However, the idea that the Court is not bound by its own decisions is often debated in the U.S.. Such a debate recently broke out within the Court itself. Earlier this week Justice Stephen Breyer wrote that the Court should always try to follow it's own past rulings, even if the rulings no longer make good law! Six other Justices signed onto this opinion. The two dissenters wrote that sometimes fairness requires past decisions to be overruled. Tony Mauro over at The Blog of Legal Times has a great post describing the recent spat over stare decisis among the Justices. It's worth a quick read.

Christmas Break

I won't be posting anything during the Christmas break. I'll be posting again during the second week of January when classes resume.

Gun Rights Go Before the Court

Cass Sunstein, one of America's preeminent legal scholars, had a great editorial piece in last Sunday's Boston Globe concerning what could be the most important Second Amendment case in the country's history. The Second Amendment, for those not familiar with the American Constitution, contains a provision that may or may not provide an unlimited right to own guns in America. Many Europeans are fascinated by the American "gun culture," but few have stopped to ask why owning a gun in America is so easy. The quick answer is the U.S. Constitution talks about gun ownership. Soon the U.S. Supreme Court will define, for the first time in many, many decades, what exactly the Constitution says concerning gun ownership. Prof. Sunstein's article is a must read if you want a basic understanding of what's at issue before the Court concerning this gun rights case.

The Limits of Peremptory Challenges

Students on common law learn early on that one of the more interesting features of the common law legal system is the use of juries. How juries are selected varies greatly from one common law country to another, and arguably the American system of jury selection is the most confusing. In the U.S., the parties themselves have considerable control over the make-up of a jury through the use of something called peremptory challenges. Basically, such challenges allow lawyers to remove potential jurors for any reason . . . except for the wrong reason. So what is a wrong reason? Well, removing someone based solely upon their race is one, according the U.S. Supreme Court in the 1986 case of Kentucky v. Batson. This week the U.S. Supreme Court considered whether a prosecutor improperly excluded all black potential jurors from serving on a jury in a murder case because of their race. The reach of the Batson case has never really been totally clear, and now the Court appears to be ready to provide further guidance. The Christian Science Monitor has a nice summary of the case before the Court and how it could impact jury selection in the U.S.. It's worth a read.

The Secret Circuit

As students in Common Law Legal System recently learned, the United States Court of Appeals is divided into 13 circuits. Eleven of the courts are divided regionally, leaving two court that we did not really discuss in class. The U.S. Court of Appeals for the Federal Circuit is one of these two courts, and definitely the one that even American-educated lawyers may not fully understand. The San Francisco Chronicle recently ran a review of the book The Secret Circuit, which does a nice job of quickly summarizing the book's main premise: what exactly does this court do? If you are interested in patent law and want to understand the U.S. Court of Appeals more fully, you may want to give this book review a quick read over.

Using English Punctuation Correctly

Another gem from wikiHow, this time a quick refresher on using English punctuation properly. Knowing when to use a period (or as the British say "full stop") or question mark is easy. But how about using a semi-colon, colon, or dash? Or the dreaded and often overused comma? This short refresher should help you with some common usage problems; so common that most native speakers could use a refresher or two every-so-often.

The Jury System in Japan

Japan is one of those mixed systems that uses a bit of common law, although it is modeled after the European civil system. Its criminal justice system is undergoing big changes that seek to introduce something that is uniquely common law: juries. Hailed as the "most significant change in its criminal justice system since the postwar American occupation," Japan will begin using juries in criminal trials sometime in 2009. But here's the catch. Traditionally, the Japanese are reluctant to express opinions in public, to argue with one another or to question authority. In short, many Japanese are dreading the idea of serving on a jury. The International Herald Tribune has more on this interesting experiment.

Press Freedom Revisited

A few weeks ago, I posted a piece about press freedom in Germany and the rest of Europe. Obviously, press freedom is a universal issue that impacts every country in some manner or another. In the U.S., there has been an ongoing discussion about the limits of press freedom. Americans were recently reminded of this debate when a video blogger was put in prison for refusing to turn over video he used for a story he posted on his blog. This was on the heals of the case of Judith Miller, a New York Times reporter who was jailed for failing to reveal her source for a story a series of stories she wrote for the Times. In light of these recent high profile cases, academics in America are calling for the Courts to revisit the U.S. Supreme Court's decision in Branzburg v. Hayes, holding that reporters cannot use the First Amendment's freedom of press right to refuse to cooperate with a criminal investigation.

Court TV

Jurists in both America and Great Britain are struggling with whether to allow television cameras into its highest courts. In the U.S., each state has dealt with this question differently; some letting camera into their courtrooms others not. But the federal courts still are a bit camera shy. Questions such as fairness to the parties and whether allowing cameras in will turn the court process into a circus are part of this often heated debate. In Britain, where the court system is undergoing enormous changes, especially at the very highest level with the creation of a new Supreme Court, the question is whether viewers should be allowed to watch Supreme Court proceedings on TV. Obviously, these proceedings are open to the public, i.e. one can go to the courtroom and watch it. Furthermore, other political proceedings are already televised in both Britain and the United States. But some judges aren't buying it. Recently, U.S. Supreme Court Chief Justice John Roberts expressed concern that the camera's in the courtroom would undermine the workings of the Court. However, in Britain it appears that many top judges have no trouble with having their work televised.

Then v. Than

Knowing when to use "then" or "than" isn't one of the recurring problems I see in students' writing. Nevertheless, it's always helpful to receive a little refresher and the WikiHow How-to-Manual has a short little piece that may be of assistance.

Policing Judges

As students of Common Law Legal System in Münster and Institutionen von Staat und Gesellschaft in Osnabrück learn, judges in common law countries, especially in the United States and England, are quite powerful. Many are appointed for life terms (in England, a life term means until the judge turns 70 years-old) and few ever face the threat of discipline, even for the most outrageous of acts. Every so often, however, one comes across a story about a judge who has gone too far. One such story surfaced this past week in Virginia, where a state court judge was removed from the bench for extreme behavior. In this particular case the judge had done things like decide a child custody case by flipping a coin (Münze werfen) and ask a female to take off her pants in court. It's rare that judges get disciplined. So rare that when they do, it's newsworthy.