Foreign Precedents and the US Supreme Court

Foreign Precedents and the US Supreme Court

With many thanks to Alice Dong of Legal Affairs for the following worthwhile tip:

“I think you might be interested in a forum just published in Legal Affairs magazine between Richard Posner and Vicki Jackson about the Supreme Court and international law.

Here’s Posner’s piece:

Here’s Jackson’s:“.

Indeed, the Legal Affairs pieces referred to by Alice present excellent counterposed analyses of the pros and cons of this increasingly recurring modern jurisprudential question.

Posner identifies the issue as follows:

“THE QUESTION FOR THIS DEBATE is: “Should foreign or international legal decisions ever be considered relevant to United States Supreme Court rulings?” Alternatively but equivalently: “In what circumstances, if any, should the United States Supreme Court cite a decision by an international or other foreign court?”

Jackson writes pro, e.g.:

“Legal education is just beginning to recognize the importance of offering training in understanding foreign and international law.”

Posner writes contra, e.g.:

“The problem is not learning from abroad; it is treating foreign judicial decisions as authorities in U.S. cases, as if the world were a single legal community.”

The issues discussed are not merely theoretical legal exercises, but reflect the ongoing and surely inevitable globalization of the world. A great read.

Sentencing Guidelines Struck Down by the Supreme Court

Sentencing Guidelines Struck Down by the Supreme Court

Kate Stith, Professor at Yale Law School and

William Stuntz, Professor at Harvard Law School

have contributed an Op-Ed article entitled “Sense and Sentencing” to the New York Times.

The article discusses the Blakely v. Washington decision just handed down by the US Supreme Court in a case involving sentencing guidlelines and their conflict with the right to jury trial under the Sixth Amendment to the US Constitution.

Justice Scalia delivered the opinion of the Court, writing:

“Petitioner Ralph Howard Blakely, Jr., pleaded guilty to the kidnaping of his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months. Pursuant to state law, the court imposed an “exceptional” sentence of 90 months after making a judicial determination that he had acted with “deliberate cruelty.” App. 40, 49. We consider whether this violated petitioner’s Sixth Amendment right to trial by jury….

[Petitioner argued that the] sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence….

This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” …

By reversing the judgment below, we are not, as the State would have it, “find[ing] determinate sentencing schemes unconstitutional.” Brief for Respondent 34. This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment….

Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. Under the dissenters’ alternative, he has no such right. That should be the end of the matter.”

We definitely agree with Scalia on this particular decision and particularly with the reasoning found in that last quoted paragraph, which we find to be decisive.

Crystalballing the Future of the World

Crystalballing the Future of the World

Niall Ferguson

The 20 June 2004 Wall Street Journal ( Opinion Journal has a superb article by Glasgow-born Niall Ferguson, professor of history – NYU, senior fellow – Hoover Institution, author – Colossus: The Price of America’s Empire, Penguin, 2004.

American Hegemony or Chaos?

The article is entitled WHEN EMPIRES WANE : The End of Power : Without American hegemony the world would likely return to the dark ages”.

At a time when most of the rest of the world – especially the news media – is focussing on short-sighted short-term political goals and problems, including many issues which are often of minor consequence in the long term, Ferguson looks at the world political situation over the long haul and sees it as a constant struggle for power, writing:

“Power … is not a natural monopoly; the struggle for mastery is both perennial and universal.”

Ferguson refers to historical periods marked by dominant powers and other periods marked by declines of hegemonial power – and winds up preferring the former – but emphasizes that global power struggles are a part of life on our planet and always have been.

It is of course preferable, but also unrealistic, historically seen, to prefer or expect peace, since the state of war is simply a given human constant, judging by the track record of our species.

Population and Technology

Ferguson appropriately discusses the great importance of population demographics on the world of tomorrow, but glosses over the perhaps equally important issue of the state of technology advancement for the future political state of the world.

In our view, technological advance is “political system dependent” – and determinative for any professed vision of the future of the planet, since the state of technology is the principal enablement but also limitation in localizing the weapons available to any given military force.

US World Power and Technology

US hegemony, i.e. its predominant stance as the world’s greatest power, is not only a historical position of strength which has developed over the last more than 200 years, but this position of might has been catalysed by the fact that the American political and economic system is more conducive to the development of sophisticated technology and weaponry than political and economic systems which are more backward – and those are, frankly, every other state and nation on this planet.

Indeed, the often primitive weapons and methods employed by America’s enemies simply serve to prove the massive failure of the political, legal and religious systems of these backward nations. Only when such countries or groups avail themselves of modern technology are they a threat. But by using modern technology, they have already lost the battle that they are trying to win for the sake of a world which once allegedly existed in the past. They have become “modern” combatants professing a world view which is long gone and never to return. The hands on the clock of time can not be turned back.

How the World of Tomorrow will NOT Look

We may not know exactly how the world of the future will look, but we do know some elements of how it will NOT look. As in man’s historical past, the primitives will not be leading the men of knowledge – they never have, and never will.

Supreme Court Decision on the Pledge of Allegiance Case Criticized

Supreme Court Decision on the Pledge of Allegiance Case Criticized

Marci Hamilton has an excellent analysis at Find Law of the US Supreme Court decision in the Pledge of Allegiance Case.

See the LawPundit posting on this topic.

Hamilton – in our opinion correctly – notes that the Supreme Court made a serious error in sticking its nose into local child custody “standing” issues while trying to duck a decision on the proper and nationally significant legal issue of the “standing” of the phrase “under God” in the Pledge of Allegiance under the Establishment Clause.

Hamilton writes:

“The federal courts, and in fact the federal government, simply do not deal with custody issues except in the rarest circumstances. The majority’s decision was nothing short of hubris when it decided to reach out to determine what Newdow’s rights are with respect to the religious education of his daughter. The folly of this decision could be felt in custody disputes around the nation.”

We agree in many particulars with Hamilton’s reasoning in her superbly written and – in our opinion – logically analyzed article.

EU Constitutional Treaty Adopted and Awaits Ratification

EU Constitutional Treaty Adopted and Awaits Ratification

As reported at the EU Presidency 2004 Website, “EU leaders have reached agreement on a new Constitutional Treaty for Europe at the European Council in Brussels.”

The Treaty now has to be explained to the citizens of the European Union and ratified by the Member States before the Constitution of the European Union can come into force.

Although some of the European Member States wanted the concept of “under God” to be brought into the text of the Constitution, the adopted version does not include this concept. Especially France insisted on a separation of Church and State.

See the LawPundit posting on the US Pledge of Allegience case and the US Supreme Court.

Putin and Kremlin updated online + other Presidential Websites

Putin and Kremlin updated online + other Presidential Websites

On June 20th, 2004, both the Russian and English-version website pages of the Kremlin and the President of Russia, Vladimir Putin, President of Russia were presented online in a completely renovated fashion.

There are numerous pages on the authority and duties of the Russian President as well as many pages on the structure of the federal government in Russia, including:

the System of Power

the President Executive Office

the Security Council

the State Council

Presidential Commissions

Presidential Councils

the Government


Control Functions of the State

It is interesting to compare Putin’s pages to those of US President Bush

or British Prime Minister Tony Blair

or Italian Prime Minister Silvio Berlusconi

or Spanish Prime Minister Zapatero

or France’s President Chirac

or German Chancellor Schroeder.

The absence or prevalence of photographs of the chief executive on the front website page of each country are indicative of the style of each leader:

George Bush – 0 pictures of Bush but photos of others from his administration

Vladimir Putin – 1 small photo and much text leading to links about Russia

Tony Blair – 1 photo with many links to British topics

Silvio Berlusconi – 1 photo with numerous links

Jose Luis Rodriguez Zapatero – 1 large photo of himself and virtually nothing else on the page, a few links

Jacques Chirac – 3 smaller photos and links especially to his speeches

Gerhard Schroeder – 4 larger photos of himself – plus prominent links to his biography and a photo gallery of former Chancellors, with Schroeder in color and the former Chancellors in black and white

(status – all as of June 21, 2004)

George Bush has no pictures of himself on his page, but numerous pictures of persons from his administration. It is quite obvious that a “team” idea of government prevails in which the chief executive is the decisive but not necessarily always visible power in the background. See Team Bush, the “first MBA President”. The lack of a Bush photo on the page fits in perfectly with this analysis.

Tony Blair has one picture of himself with many links to British culture and history, including the Queen.

Quite surprising might be the fact that the newly redone and excellent Russian pages – with but one small, modest photo of Putin – but strategically placed at the top – are by far the most sober and informative about the actual system of government and the most removed from any cult of persons or personalities. This too reflects Putin’s style which has been described by Pundit Magazine as unflappable, steely, cool and methodical, with Putin “waiting before he has enough information to decide upon the best course of action.”

Italian Prime Minister (Il Presidente del Consiglio) Silvio Berlusconi has one large picture of himself and various government links.

Zapatero of Spain has only one large picture of himself on his Presidential page and virtually nothing else, only a few links, to his bio and so on. Zapatero is known by the nickname “Bambi” for his innocent idealism in politics.

At the extreme of the personality centered cult of government is German Chancellor Schroeder. The rags-to-riches media-image centered Gerhard Schroeder of Germany has four pictures of himself on his page and in a gallery of the historical chancellors of Germany found on Schroeder’s pages, it is only Schroeder who is pictured in color.

Schroeder is in his element in the media and has been known as the “Media Chancellor” for never missing a photo opportunity, but he is losing his touch as his SPD party hits all time lows in the choices of the voters.

Indeed, Schroeder is regarded by some, due to his policy and leadership weaknesses, to be the worst post-WWII Chancellor Germany has ever had:

see, e.g. his political opponent

Edmund Stoiber

Similar opinions are found voiced in:

Davids Medienkritik


Daily Pundit


Oliver Kamm

Little Green Footballs writes about Schroeder’s recent political statements:

“Schroeder’s either a complete idiot (unlikely) or he wants the US to fail (quite likely)”.

As Ralph Waldo Emerson wrote: “how can a man be concealed?”

Advertising Slogans: Fact vs. Puffing – America’s Favorite Pasta

Advertising Slogans: Fact vs. Puffing – America’s Favorite Pasta

As a great fan of Italian food,

the following had to be regarded as an important legal case.

Ivan Hoffman has a posting on Advertising Slogans: Fact vs. Puffing regarding an Eighth Circuit Court of Appeals decision in American Italian Pasta Company vs. New World Pasta Company.

The question there was whether the phrase “America’s Favorite Pasta” is “false and misleading advertising under the Lanham Act and various state laws” if in fact a different brand of pasta had higher sales nationally.

Is being a “favorite” a question of fact or a matter of puffery?

Can consumers use their “noodles” when choosing pasta?

Read Hoffman for the legal scoop.

Law and Ancient History

Law and Ancient History

What is “Time Law” and is it older than what we normally call “Law”?

Via the wonderful pages of Bengt Hemtun on Ancient ideas, megaliths, rock-carvings, rituals

(see also Hemtun’s video – let the page “sit” as it takes time to load – the video then clinks in ultimately on its own)

we are directed to the following links on Law and Ancient History

Hammurabi’s Code of Laws Translated by L. W. King

The Development Of Ancient Mesopotamian Law

Translated text of Sumerian literature

and also to

Time Law

New .Pro domains for attorneys, physicians, accountants

New .Pro domains for attorneys, physicians, accountants

The .pro domain is available as of June 1, 2004 for attorneys, physicians and accountants.

RegistryPro is the exclusive operator of the new .pro domain and “is the first registry to require enhanced security through the issuance of digital certificates, an online passport that facilitates secure and confidential communications and transactions.”

The key element is that persons wishing to have a domain will have to undergo a verification process to be able to get such a domain – this will of course make the domains more exclusive and more valuable in the long run.

Domains such as “” will surely become more frequent due to this exclusivity and because of the enhanced security offered.

See the website for material specific to lawyers, which provides as follows:

The product bundle was exclusively conceived for lawyers and their firms to register a space on the Internet.

.Pro is Exclusive

All .Pro applicants must provide their professional credentials to qualify for .Pro membership. Once the credentials are electronically verified against the State bar assocaition, a postcard with a security code is mailed to the address on record. There is virtually no way a non-Attorney can even qualify for a

.Pro is Secure

Each member of .Pro receives a digital certificate tied to their domain name which allows attorneys to securely and confidently communicate with their clients, sources, and and other attorneys.

With the .Pro Digital Certificate, your clients will place trust and confidence in their communications with you and your practice.

.Pro is Professional

As all .Pro members must be an attorney or other professional, the content and services available under .Pro domain names is not likely to contain illicit or illegal material or gibberish so often found on the Internet.”

Bill Gates Touts Blogs and Blogging

Bill Gates Touts Blogs and Blogging

BBC NEWS reports that Bill Gates – at a keynote speech in Redmond, Seattle during Microsoft’s CEO Summit – has actively backed blogs for businesses, pointing out that blogs had advantages over traditional e-mail and website techonology. More than 700 people at Microsoft use blogs for communication.

It is to be expected that Microsoft will also be offering blog technology of its own soon.

View the full text of Gates’ speech and the Power Point presentation Seamless Computing.

Speech reference first encountered on lexBlog.

lexBlog – Blogging Services for the Legal Profession

lexBlog – Blogging Services for the Legal Profession

Kevin O’Keefe has moved his law blog from TypePad to Kevin’s new blog at his newly started lexBlog, a website providing blogging services to the legal profession.

lexBlog’s LawBasic service includes blog installation and set up, blog hosting, quality professional design, search engine optimization and marketing and blog support. And there is more….

We think that this is an idea whose time has come.

Rock Art and the Law

Rock Art and the Law

MSNBC has an article of June 1, 2004 by Scott Sonner of AP entitled Trial stirs up controversy over rock art: Should ancient petroglyphs be marked or not?

Two men are charged with the theft – from “Indian land” – of two boulders marked with rock art. Their defense is that no official signs marked the boulders. Indeed, government land managers have testified that “such signs would only invite trouble”.

The trial has brought up the issue of whether rock art should be marked as such by government officials and be appropriately protected.

The broader legal question is who owns the megaliths? and who owns the rock art? and what are the rights AND duties of owners with respect to such ancient art?

See the Law Pundit’s for background information on ancient rock art and megaliths.