SBM Blog

Belarus, Death Penalty Hardliner

The U.S. may be one of the world's top death penalty countries (#5 in number of executions in 2011, behind China, Iran, Saudi Arabia, and Iraq), but according to Forum 18, a Norwegian religious rights organization, Belarus (the only European country that still has the death penalty)  is making other death penalty countries look like soft touches. Death row prisoners are not told the time of their execution in advance, cannot arrange for last rites or other religious observances before execution, and their relatives are not allowed to claim their bodies and are not told the time or place of burial.

Two Looks At The American Criminal Justice System And The DSK Scandale

 The Economist reviews two new books that take a look at how the U.S. criminal justice system worked in the face of the rape allegations last year against Dominique Strauss-Kahn. The first, Three Days in May: Sex, Surveillance and DSK, advances the theory that the French intelligence service set up DSK in order to help the reelection chances of now-former French President Nicolas Sarkozy.  (The Economist finds this theory unconvincing.) The second, DSK: The Scandal That Brought Down Dominique Strauss-Kahn, concludes that prosecutors rushed to judgment against DSK and then dropped the case too precipitously. The Economist finds this view more convincing. So who cares? Not the French, apparently. But shouldn't U.S. lawyers be interested in how our system behaves in the face of celebrity and power and class disparity? Whatever the facts, it's hard to find a view of the DSK affaire in which the perp walk looks like a good idea.

What's The Point Of A Criminal Trial?

Easy answer: to determine guilt or innocence and impose a penalty if guilt is found.  This op-ed piece in the New York Times on the trial of Anders Breivik, the Norwegian mass murderer, reminds us that sometimes something much more profound is taking place. Its author, novelist Karl Ove Knausgaard, like most of his countrymen, was numbed by the media coverage of the massacre and its aftermath, but to Knausgaard and perhaps his countrymen the trial has brought new insights, and signifies hope for justice, for Norway and for Breivik himself:

What [Breivik] perhaps dimly realizes as he lies in the cell is what will happen when the trial shifts from him and his picture of the world, this rigorously maintained fiction, to the 77 victims. One by one, an account will be given of their deaths. The dead bodies he left scattered on the street, around the forest and the rocks, in the water and on the shore, the weight of all these bodies, and not just bodies but also the names — the naming of which will bring memories back to loved ones of laughter, voices and shouts, joy and sorrow, but first and foremost of hope now lost — when this weight makes its impact, nothing of what Breivik has said will be of any importance.

His testimony, his ideas, his conception of the world will turn to nothing. Possibly, he will be able to resist even that, but the trial is for us, not for him. We shall see him as he is, a human being like you and me, and we shall see what he has done. And we shall try to understand. The dangerous thing is the distance, the confusing of the picture of the world with the real world, the turning away from the other person. And it is this that the court case, with its emphasis on formalities and its equality of treatment, confronts. Our task is to witness it, to allow the weight of reality to break through the picture and correct it. And never, never the reverse.

Read it.

English Premier League Players Are No Saints, Either

The New Orleans Saints are starting to suffer the consequences for the practice of awarding cash "bounties" to players for game injuries inflicted on opponents during games; the NFL has already assessed penalties and the torture of Congressional hearings may be about to begin. But Gabe Feldman, an associate professor of law and director of the sports law program at Tulane University Law School who happens to have something of a Drew Brees/Peyton Manning look about him, says that criminal charges based on the bounties are unlikely:

First, U.S. courts tend to defer to league self-regulation, choosing not to interfere with on-field or on-ice discipline issues unless the conduct in question is far outside the range of what a player can expect to happen in the game. (For an extreme, hypothetical example of such conduct, see the opening scene of the film, "The Last Boy Scout," in which a football player pulls out a gun and shoots the players on the other team.) Courts generally don't want to get involved and potentially chill or impact how the game is played, as long as the league has reasonable rules in place to protect the players.

Second, it would be very difficult for a prosecutor to win a criminal case. Football is an inherently violent sport, and NFL players assume the risk of being subjected to violent conduct on the field. Battery generally is defined as the "intentional use of force against a person without that other person's consent." The problem with any criminal case is that players consent to being hit violently and repeatedly, and injuries are a regrettable but unavoidable and accepted part of the game (the fact that players are regularly placed on injured reserve is good evidence of that).

Jonathan Turley discusses the tort implications of the Saints' conduct in this post.

Lest we start to feel all American-exceptionalist and think we're the only nation struggling with line between professional sports and the law, we need only look across the pond to England. Although the English Premier League doesn't have a bounty scandal on its hands, there's enough rough stuff going on over there to prompt this recent piece from the Inner Temple Library:

The laws of the game have clearly changed in recent years to keep up with the pace of the game and protect players. Now that the laws have changed, players seem to complain when they are sent from the field of play. They would do well to firstly know the laws of the game and secondly remember that they are there to protect them. It is perhaps not just opponents that players need protecting from but themselves too.

Should things get out of hand on the field of play, the law will clearly act. Football is undoubtedly one of the most popular sports in the world. Reasons include the fast pace, skill and entertainment. Football perhaps more than any other sport has the capacity for things to happen quickly and in the heat of the moment. Many cases will end up in the "grey area" Lord Woolf referred to.

What is clear however, is that when and if necessary, the criminal law will act. When sport becomes dangerous it stops being fun; it becomes criminal. The law doesn't allow people to consent to criminal acts being perpetrated upon them outside sport. Public policy dictates that such perpetrators must be Prosecuted. They have no place in our game, let alone on the field of play armed with a pair of studs.

Judges Speaking Freely. What, What?

From across the pond, The Guardian brings word of the displeasure of the chief judge of the civil judiciary with the public pronouncements of judges on, well, all things.  It doesn't get much more British than Lord Neuberger of Abbotsbury's "Where Angels Fear To Tread Holdsworth Club 2012 Presidential Address" (PDF). For example:

I interrupt my citation of Lord Kilmuir’s reply to Sir Ian to remark that I can only imagine the horror with which Lord Kilmuir, Lord Goddard CJ, Lord Evershed MR and Lord Merriman P, would have viewed several members of the Supreme Court discussing their role, approach to work, home life and recreations on television7. As for their reaction to my colleague, Lord Justice Stanley Burnton, appearing as an amateur food critic on last week’s episode of Masterchef8, the mind boggles. If giving grave and weighty views on Lord Mansfield, Chief Justice Holt and Chief Justice Coke was beyond the pale, it does not bear thinking about what Lord Kilmuir would have regarded the most senior judges discussing who peels the potatoes at home, how they shop at Tesco’s, whether they cycle to work, or how they write their judgments, let alone senior judges giving their views on mango and passion fruit crème brulee.

Indeed. But isn't it ironic that it takes an English judge to call our attention to this waggish comment about our own Justice Scalia ?

Supreme Court Associate Justice Scalia is a judge whose lectures are without doubt a must see. As one commentator put it, ‘Scalia is the most likely to offer the jurisprudential equivalent of smashing a guitar on stage. (From Talbot (2005) cited in L. Baum, Judges and their audiences, (Princeton) (2008) at 37.)

 

What's More Dangerous Than Driving While Texting or Under The Influence?

According to this study (PDF) from the Institute of Advanced Motorists UK, the answer is driving while social networking or conversing on a hand-held mobile phone. The study using driving simulators showed that reaction times to visual and auditory stimuli increased about 37.6% when using a smartphone to send and receive messages on Facebook, and participants often missed events completely.  Other studies have measured the increased reaction time for texting at 37.4%, for alcohol at 6-30%, for hands-free mobile phone conversation at 26.5%, and for marijuana at 21%.  Worst of all is carrying on a conversation with a hand-held phone, which has been measured as increasing reaction time by 45.9%.

Hang up and drive. Whatever it is, it's not that important.

Arab-Israeli Justice At Center of Unwelcome Controversy

Michigan lawyers and law students who had the pleasure of hearing Israeli Justice Salim Soubran speak about his experience as the only Arab-Israeli on the Supreme Court of Israel during his visit to Michigan last year will not want to miss today's NYT's story "Anger and Compassion for Arab Justice Who Stays Silent During Zionist Hymn."

British Prime Minister Launches Initiative Against False Whiplash Claims

Labeling England the "whiplash capital of Europe," Prime Minister David Cameron told a summit on Wednesday that his government "determined to tackle this damaging compensation culture which has been pushing up premiums" and stop "trivial claims."  Among the proposals on the table are a minimum speed limit a driver must have been travelling before claiming whiplash injuries, a threshold for the level of claims, more medical evidence in whiplash cases in order to be eligible for compensation, and a reduction of the £1,200 fee that lawyers can earn from small value personal injury claims.  According to a BBC story, there has been a 70% rise in motor insurance injury claims in the past six years, at the same time that casualties caused by road accidents have dropped 23%. Average car insurance premiums soared by 40 percent in the year to March 2011, according to Reuters. The Law Society of England and Wales complained that the Cameron government rejected their offer to help address the problem.

Why Justice Ginsburg Counseled the Egyptians Not to Use the U.S. Constitution as a Model

Setting aside the questions of when, where, and how, Harvard Law prof Noah Feldman explains why Justice Ginsburg told Egyptians to model their new constitution on South Africa's not the United States.' According to his fascinating post in Bloomberg View the U.S. constitution continues to be preeminent as a source of guiding principles, but newer constitutions provide clearer guidance on balancing tests and avoiding battles about original intent:

The truth is that no sane constitution-drafters would want the future court of their country to spend its time arguing about what they really meant -- or even about public perception of what they meant. Debates about what the Constitution originally meant become proxies for arguments about what the Constitution ought to mean.

Culture Wars In The Courtroom: Looking Across The Pond

From Cornwall, via The Guardian, "Christian B&B owners lose appeal over turning away gay guests:"

Delivering judgment, Lady Justice Rafferty said: "Whilst the appellants' beliefs about sexual practice may not find the acceptance that once they did, nevertheless a democratic society must ensure that their espousal and expression remain open to those who hold them.

"It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the appellants' beliefs).

"However, in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. As I have made plain, I do not consider that the appellants face any difficulty in manifesting their religious beliefs. They are merely prohibited from so doing in the commercial context they have chosen."