Category: General Law

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The Other Bills of Rights

Since most Americans did not call the first set of amendments the Bill of Rights until the 1890s, what did they call bill of rights up until that time? There were state bills of rights, of course, and the English Bill of Rights of 1689.  Other less obvious candidates included:

1.  Magna Carta–There are cases and commentaries that labeled this as “the great bill of rights.”

2.  The Declaration of Independence. Even John Bingham once referred to this as the bill of rights.

3.  The Civil Rights Act of 1866–I’ve found a case referring to this as “this famous bill of rights.”

4.  The Resolution of the Continental Congress in 1765. Chancellor Kent referred to this as a bill of rights in his Commentaries on American Law.

5.  Article One, Sections 9-10.  Each of these were called a bill of rights in Supreme Court cases prior to the 1890s.

More on this tomorrow, including a surprising turning point in the use of the Bill of Rights following the Spanish-American War.

 

 

 

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ROUNDUP: Law and Humanities 08.04.14

Debuting August 5 on Crackle, the streaming service, is the original half hour legal drama Sequestered, starring Jesse Bradford, Patrick Warburton and Summer Glau. It centers on the workings of a jury busy deliberating a defendant’s fate, while a young defense attorney works to find out the truth before it’s too late. One of the jurors (Glau) seems to be under some kind of threat from the outside  with regard to her verdict, a storyline that seems familiar (see, for example, The Juror (Demi Moore as the juror (1996)).

Like other legal dramas, the description for this series (all that is available at this writing) seems to suggest that what happens in the courtroom is not “truth,”  and that the jury may actually be operating as blindly as Lady Justice. I’ll be curious to see if the storyline develops in that way. Six half hour (actually 22 minute) episodes will initially be available for viewing, with an additional 6 to be released in two months. More here from the New York Times. Crackle also makes a number of other series available, including episodes of the wonderful legal series Damages starring Glenn Close and Rose Byrne, and the cult favorite The Prisoner with the incomparable Patrick McGoohan.

The Association for the Study of Law, Culture, and the Humanities will hold its Eighteenth Annual Meeting at the Georgetown University Law Center, March 6-7, 2015.  Panel and paper proposals are due Wednesday, October 15th, 2014.

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Magna Carta–Part I

Next year is the 800th anniversary of Magna Carta, and I thought I’d start a series of posts on that text.  Much of Magna Carta dealt with feudal duties that are obsolete, and the document applied only to the Crown and to the aristocracy (you were largely out of luck as a serf.)  Some of its provisions are quaint, such as “[T]here shall be one measure of wine throughout Our kingdom, and one of ale, and one measure of corn, to wit, the London quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two ells within the selvages.”

Nevertheless, there are some parts that are surprising, especially with respect to aristocratic women.  For example, “[A] widow, after the death of her husband, shall immediately and without difficulty have her marriage portion and inheritance.”  And “[n]o widow shall be compelled to marry so long as she has a mind to live without a husband.”  You can also see the germ of federalism in the guarantee the “The City of London shall have all her ancient liberties and free customs, both by land and water.  Moreover, We will grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.”

More next week on property rights, freedom or religion, due process, and other Magna Carta wonders.

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FAN 25.1 (First Amendment News) — Mass. Gov. signs abortion buffer zone bill

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

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Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).

 

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Would a right to be forgotten survive First Amendment scrutiny? [discuss in the comments!]

I’ve had some interesting discussions with readers following my post on the EU right to be forgotten’s growing pains.  Here’s a question that’s emerged:

would a right to be forgotten survive First Amendment scrutiny if it were passed under U.S. law?

To be sure, the current EU implementation of the right to be forgotten would almost certainly be vague and overbroad.  But I’m curious whether readers think there is Great_Seal_of_the_United_States_(obverse).svgsome formulation of a right to be forgotten that would survive First Amendment scrutiny and still be broad enough to achieve the basic purpose of the law, which is to give individuals license to force the removal of online content that’s deemed to be outdated or irrelevant.

There is at least one precedent for this kind of speech regulation in the States: California’s “eraser” law, which requires service providers to give minors the right to delete content they themselves posted.  The right to delete your own content is a pretty narrow application of the right to be forgotten.  Would even that narrow application fail First Amendment analysis?  (Putting aside dormant commerce clause and other constitutional concerns).

I have some thoughts on all this myself, but since the readership and authorship of this blog includes distinguished First Amendment scholars, I’ll leave mine for the comments.

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What’s ailing the right to be forgotten (and some thoughts on how to fix it)

The European Court of Justice’s recent “right to be forgotten” ruling is going through growing pains.  “A politician, a pedophile and a would-be killer are among the people who have already asked Google to remove links to information about their pasts.”  Add to that list former Merill Lynch Executive Stan O’Neal, who requested that Google hide links to an unflattering BBC News articles about him.

Screen Shot 2014-07-09 at 9.21.19 AMAll told, Google “has removed tens of thousands of links—possibly more than 100,000—from its European search results,” encompassing removal requests from 91,000 individuals (apparently about 50% of all requests are granted).  The company has been pulled into discussions with EU regulators about its implementation of the rules, with one regulator opining that the current system “undermines the right to be forgotten.”

The list of questions EU officials recently sent Google suggests they are more or less in the dark about the way providers are applying the ECJ’s ruling.  Meanwhile, European companies like forget.me (pictured) are looking to reap a profit from the uncertainty surrounding the application of these new rules.  The quote at the end of the Times article sums up the current state of affairs:

“No one really knows what the criteria is,” he said, in reference to Google’s response to people’s online requests. “So far, we’re getting a lot of noes. It’s a complete no man’s land.”

What (if anything) went wrong? As I’ll argue* below, a major flaw in the current implementation is that it puts the initial adjudication of right to be forgotten decisions in the hands of search engine providers, rather than representatives of the public interest.  This process leads to a lack of transparency and potential conflicts of interest in implementing what may otherwise be sound policy.

The EU could address these problems by reforming the current procedures to limit search engine providers’ discretion in day-to-day right to be forgotten determinations.  Inspiration for such an alternative can be found in other areas of law regulating the conduct of third party service providers, including the procedures for takedown of copyright-infringing content under the DMCA and those governing law enforcement requests for online emails.

I’ll get into more detail about the current implementation of the right to be forgotten and some possible alternatives after the jump.

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Recent Articles of Note

Now that I’ve finished drafting my latest paper, I’m going through the stack of articles that I’ve wanted to read for some time.  I want to make two summer reading suggestions.

The first is Justin Driver’s article on “Supremacies and the Southern Manifesto.”  This is is the first comprehensive look at the Manifesto (made by Southern members of Congress in response to Brown) and contains lots of eye-opening observations about both the segregationist perspective and the response.  It’s well worth your time.

The other is Erin Delaney’s paper on “Judiciary Rising:  Constitutional Change in the United Kingdom.”  The British Constitution is a special interest of mine, and her article does a great job analyzing the changes that have occurred since Tony Blair become Prime Minister in 1997, including a new Supreme Court and regional parliaments.

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Wooden Statutory Interpretation

Critics of the D.C. Circuit’s panel decision in Halbig v. Burwell are condemning the decision for its wooden interpretation of the Affordable Care Act.  This got me to wondering how and when that phrase entered the lexicon.

The first reference I can find in the United States comes from the Indiana Supreme Court in 1906.  State v. Lowry stated that courts should “avoid a wooden interpretation of the words and become able to apprehend the spirit of the statute.”  Perhaps there was some earlier British usage (the phrase certainly sounds British), but I don’t know.

This raises a related point that has always puzzled me.  Lawyers of a certain age like to say when giving credit to someone that they took “the laboring oar” on a case or a project.  I had never heard anyway say this until I went into practice, and I haven’t heard it since I left practice.  Where does that one come from?

 

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Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices.  They point out that most nations with an independent judiciary give their judges long but defined terms.  So do most of our states.  The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year.  Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed?  Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term.  (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.)  After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice?  I can think of one reason.  The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging.  Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.”  That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later.   Once that precedent is established, the next nominee would find it hard not to make a similar pledge.