A Forgotten Civil Rights Warrior

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

Is A Lawn Mower A Vehicle? Nope.

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

A riding lawn mower may have four wheels, a powerful engine and can cost as much as a used car. If it's stolen, however, the Georgia Supreme Court concluded Monday that it's not a motor vehicle.

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

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

A True Groundbreaker

Brown v. Board of Education is often viewed as being the first major victory in court in the fight to end legal segregation of the races in America. While it most certainly did change the legal landscape concerning racial discrimination, it was not the first victory in this battle. That distinction goes to Lloyd Gaines. The New York Times explains that:

On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.

The New York Times has more on this fascinating individual and case.

When Must A Judge Step Aside?

Can a United States federal court judge hear a case in which he or she may have an interest in it's outcome? For instance, what if the judge happens to be a hunting buddy of the defendant in a case. Or the judge's son works for the law firm representing the plaintiff. Must the judge step aside? The simple answer under current law is no. But that may change if some members of Congress have their way. Law.com notes:

Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices.

More on this can be found at law.com.

Suing Judges

In interesting article in yesterday's Wall Street Journal begins by saying:

People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a higher court or, if they suspect judicial wrongdoing, ask a bar association to investigate. But one thing people can't generally do is sue. The rationale behind the notion -- called absolute judicial immunity -- is straightforward: Judges shouldn't have to defend themselves in court whenever they issue a ruling that makes someone unhappy.

Two recently filed lawsuits in the state of Pennsylvania are trying to pierce this immunity. For more on this, I highly suggest reading the full article.

Judges Reject Rendition Suit

Extraordinary rendition. This is the program used by the U.S. government shortly after September 11, 2001, whereby terrorist suspects were kidnapped and sent to third countries where they could be interrogated using torture. One such victim, a Canadian who was picked up in Kennedy International Airport in New York and whisked off to Syria where he was detained and tortured for a year, was told by the United States Second Circuit Court of Appeals that he cannot sue the U.S. government because Congress did not authorized such a suit. Ben Weiser, of the New York Times writes:

In saying that he could not sue officials involved in his rendition, the United States Court of Appeals for the Second Circuit ruled by a vote of 7 to 4 that Congress could always create a civil damages remedy for harms suffered through rendition, but it had not done so.

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

Judge Jacobs said that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from government officials for a constitutional violation.

Setting aside the question of how Congress could have created a remedy for violations arising from a program about which it was not informed by the Bush Administration, there are some very interesting points to take away from this article.

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

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

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

Is A Lawn Mower a Motor Vehicle?

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

Case Before the Court

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

Vote or Appoint?

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

Time to Retire

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

Get a License or Else!

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

A Peek Inside the Court

During a recent visit to the University of Alabama, U.S. Supreme Court Justice Clearance Thomas gave UA law students and audience members a glimpse inside the otherwise secretive decision making process of the Court. As students in most of my courses learn, appellate arguments in the United States usually involve judges asking the lawyers of both parties numerous questions. A typical hearing before the U.S. Supreme Court looks more like an question and answer session than an argument being presented by lawyers. But according to Justice Thomas, this Q&A is at best unnecessary and at worst downright bothersome. The Associate Press reports:

Thomas - who hasn't asked a lawyer a question during arguments in nearly four years - said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.

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

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

The Tuscaloosa News has more on Justice Thomas' visit.

Still On The Books

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

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

You can read more here.

Welcome Back and Congrats to Medical Marijuana Users

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

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

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

Back in October

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

Can Non-Lawyers Judge a Judge?

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

Sex Offender Registration Laws

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

A Ritual Worth Watching

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

A Remedy for Torture

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

The Rare Impeachment

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

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