Novalawcity

Bar Passage rates in Japan

The new graduate-level law schools are averaging a 27% pass rates, up from the traditional 3%. Asahi

US Code section that doesn't exist

8 USC 1324(a)(1)(A)(iv)(b)(iii) doesn't exist, even though it was cited by a Sheriff. The story highlights the uses and abuses of electronic legal databases. LII

Japan's Jury Experiment

Japan's first jury trial in 60 years is detailed in this interesting article from the Jurist.

Bivens to Twombly to Ashcroft

The Supreme Court has changed the rules in the game of federal civil litigation, according to Justice Ginsburg.  From merely requiring a "short and plain statement of the claim" Fed. R. Civ. P. 8(a)(2), the court in Ashcroft v. Iqbal moved to a standard of requiring that the plaintiff plead sufficient factual matter to state a claim for relief "plausible on its face." 

As the New York Times points out, this leaves plaintiffs who are "victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention" at a loss, because the details about the alleged wrong are usually secret.  Discovery, which follows on the heels of the complaint, enables such plaintiffs to uncover the facts.  Since the process of discovery can be extremely costly for the defendant, this gives the plaintiff settlement leverage.  The new dispensation, which allows judges to rely upon a perceived lack of "common sense" and plausibility in dismissing the claim, is clearly subjective.  If a judge does not favor particular causes of action, the new standard provides no principled check on the judge's ability to dismiss such claims as soon as they are filed.  In the past two months, 500 courts have cited to Ashcroft.

An Interesting Twist on the States' Rights Argument

Considering who usually makes states' rights arguments, it's intriguing to read that the Attorney General of the State of Massachusetts has filed suit against the federal government.  Her claim is that the federal Defense of Marriage Act unconstitutionally interferes with the state's right to regulate marriage.  The Defense of Marriage Act does not recognize same sex marriages, and consequently denies same sex couples, legally married under Massachusetts law, the same rights and privileges as other Massachusetts married couples.  See the Official Website of the Attorney General of Massachusetts

All Sotomayor, All the Time

The Law Library of Congress has added material by and about Sonia Sotomayor, President Obama's nominee to the Supreme Court, to its website.  Resources include PDFs of her two previous confirmation hearings, a pointer to the decisions she has written as an appellate judge, and a listing of web sources, including blogs.  

UK: Speaker Martin Resigns

The Name Game

The view of Supreme Court nominee Sonia Sotomayor that is emerging is a salutary reminder that the labels "conservative" and "liberal" often obscure more than they reveal.  The videos she released to the Senate Judiciary Committee reveal her to be a proud "affirmative action baby," who credits her minority status and experience for her admission to Yale Law School with less-than-stellar test scores.  She argues that diversity is important so that minorities caught up in the legal system can see faces like theirs and be judged by decision-makers whose similar life experience has taught them understanding. 

On the other hand, in remarks on the SCOTUS case Medellin v. Texas, Judge Sotomajor sided with the majority opinion's "conservative" view of the effect of foreign and international law.  The decision shrugged off an International Court of Justice holding that Mexican Death Row inmates who were not helped to contact the Mexican consulate for assistance, as required by treaty, were entitled to new sentencing hearings.  Treaties are not enforceable by private lawsuit, she opined, and are not the law of the land, unless Congress passes a statute making them so. 

She thus reveals herself as a nuanced thinker, who can be trusted to arrive at her decisions judicially. 

See the article in the New York Times.  

Souter to Head Home to New Hampshire?

Justice David Souter appears poised to leave the Supreme Court before the October term begins.  Appointed by the first President Bush, he has been a reliable upholder of reproductive rights throughout his tenure.  He joined the minority in dissenting from the decision in Bush v. Gore, arguing that there was no reason the state should be stopped from counting the disputed ballots.

With Specter now a Democrat, and Al Franken expected to be confirmed the winner in Minnesota (it feels odd just typing that, though I suppose no odder than typing Governor Jesse Ventura - what is it about those Minnesotans, anyway?), by the time the confirmation hearings on whoever President Obama appoints as a successor are held, there will be 60 Democrats in the Senate. 

Possible nominees include Elena Kagan, the solicitor general; Sonia Sotomayor, of the U.S. Court of Appeals for the Second Circuit; and Diane Wood, of the Seventh Circuit.  Wood, who clerked for Harry Blackmun, author of Roe v. Wade, and has cited that decision in several of her opinions, would bring a more predictable vote for women's rights.  She would also arouse the most partisan ire.  The other two likely nominees, particularly Elena Kagan, would be much less controversial.  It will be interesting to see whether or not President Obama goes with the controversial Wood, or avoids confronting the abortion issue head-on by choosing another nominee.

"The right of the people to be secure in their persons..."

Many states are now taking DNA samples from people convicted of misdemeanors.  DNA is being collected from adolescents who find their way into the hands of the police.  California takes DNA upon arrest.  This month, the FBI begins taking DNA from individuals awaiting trial as well as from detained immigrants.  This is being done without a societal debate on the practice.

What if, at some future point in time, genetic status becomes a crime?  Or perhaps I should say, again becomes a crime.  This Scientific American review of The Criminal Brain, Understanding Biological Theories of Crime points out that scientists are close to linking genes to the propensity to commit crimes.  Genetic propensity, of course, does not necessarily translate into behavior. Once chromosomes and crime are linked, though, are we comfortable in assuming that the DNA in these huge databases won't be used as a basis for selecting some among us for special police scrutiny or even preventive detention? 

We are proceeding to search people, not all of them criminals, for their genetic identities, without a societal debate on the desirability of this course.  Say you were arrested and convicted of speeding.  Would you be happy to know that your genetic signature reposed in a database somewhere for the rest of your life?  The chilling response to privacy concerns was summed up by Rock Harmon, former prosecutor for Alameda County, California, "If you haven't done anything wrong, then you have nothing to fear."  What if, even though you haven't done anything wrong, society, or the police, decide you are something wrong?

See The New York Times article.