Ian’s Legal Fact of the Week 9/29/14: Suspension of Habeas Corpus

The first suspension of habeas corpus in the U.S. was by Abraham Lincoln in April 1861 in order to protect a railroad route between Annapolis and Philadelphia which pro-Confederate forces were threatening to destroy. His action was overturned by the U.S. Circuit Court of Appeals in Maryland in Ex Parte Merryman, led by Roger B. Taney, Chief Justice of the U.S. Supreme Court. Lincoln’s Attorney General ignored the judicial decision.

Ian’s Legal Fact of the Week 9/22/14: 17th Amendment

The Seventeenth Amendment, ratified in 1913, provides for the direct election of members of the Senate by popular vote in each state, and also allows governors to make temporary appointments until a special election is held to fill vacancies. Originally, members of the Senate were elected by state legislatures. Seven states have not yet ratified the Amendment: Florida, Georgia, Rhode Island, Kentucky, Mississippi, South Carolina, and Virginia.

Ian’s Legal Fact of the Week 9/15/14: The Origins of ‘Barrister’

Barrister derives its medieval origins from the word bar, referring to the wooden barrier that commonly stood near the front of the courtroom that separated spectators from judges, lawyers, court officers and parties. People admitted to practice were said to have been called to the bar or to have passed the bar. In modern usage, bar is commonly used as to refer to the members of the legal profession in a jurisdiction.

 

Ian’s Legal Fact of the Week 9/8/14: Anti-Stalking Laws

California passed the first anti-stalking law in 1990, following the 1989 murder of actress Rebecca Schaeffer. Within 3 years every state had a similar law. Today all states have laws that also cover cyber-stalking and/or cyber-harassment. In recent years, a growing number of states have also passed laws governing cyber-bullying (involving minors).

 

 

Ian’s Legal Fact of the Week 9/1/14: The Bill of Rights

James Madison introduced 39 proposed amendments to the Constitution before the House of Representatives in 1789; the House approved 17 of these, 12 of which were ultimately approved by Congress. Ten amendments, now known as the Bill of Rights, went on be ratified by the states. One of the proposed amendment, havng to do with Congressional salaries, was ratified in 1992 and is now the 27th Amendment. The twelfth proposed amendment, concerning Congressional apportionment, was ratified by 11 states as of 1792 and is considered still pending—it would now require ratification by 27 more states.

The Origins of “Passing the Bar”

One question that I am asked from time to time has to do with the origins of the expression “passing the bar”. A common assumption is that there is some connection with admission to the legal profession and the ancient relationship between lawyers and taverns. This has some plausibility as courts in the medieval and Elizabethean eras were not infrequently held in public places, including taverns (but also including churches, town and meeting halls, and the like). However much the public may enjoy the putative connection between the legal profession and alcoholic libations, however, this is not the true origin of the term.

The word “barrister” shows us much more clearly the etymology of this phrase, as barrister (the lawyer who argues cases in court) is derived from the old French barre or Latin barra, meaning “bar”. The bar in question here was not a place that served alcohol, but rather is a reference to the wooden bar or barrier that commonly stood near the front of the courtroom at the ancient Inns of Court in London, used by the English and Welsh legal profession to admit newcomers into their ranks. A barrier, or bar, separated “benchers” from the main hall; students who had attained a certain level of expertise and standing were then “called to the bar” to participate in the Inn’s moot court exercises.

The combined coat of arms of the London Inns of Court

The combined coat of arms of the London Inns of Court

By the early 1600s, however, “bar” referred mainly to the bar in courthouses that separated the officers of the law (judges, counsel, bailiffs, etc.) from those not admitted into the legal profession or otherwise a party. Besides having a symbolic function, this might also have had a practical benefit as it separated the (sometimes racuous) spectators from those conducting and participating in the business of the court.  To disbar, then, was to remove someone from the ability to come to the bar (or within the bar, as was the case with King’s or Queen’s Counsel, who were said to have been “called within the bar”). Bar eventually became synonomous with the place where cases were argued in court, and eventually with the court itself and those admitted to practice. Its modern meaning typically references formal admission to the profession of law, populary known as “passing” or being “admitted” to the bar. The “bar” today, as used in the United States, does not reference the physical separation in courtrooms (which typically still exists in some form) but rather is used as a collective noun to refer to all the members of the legal profession in a specific jurisdiction (e.g., “the Massachusetts bar”).

As  an interesting aside, the modern and beautiful Moakley Federal courthouse in Boston has courtrooms that still have partitions between the gallery and the rest of the courtroom, but the partition has openings in it (see picture below); I am told this is to symbolize public access to justice.

A courtroom in the Moakley Courthouse

A courtroom in the Moakley Courthouse

 

Ian’s Legal Fact of the Week 4/28/14: Gifts and Windfalls

In U.S. tax law there is a distinction between gifts and windfalls. A windfall–which historically referred to fruit or trees blown down by the wind–now refers to any sudden, unearned gain such finding money on the street or buried treasure. A gift, however, is a gain given by a donor and motivated by generosity, affection, respect or the like. A key distinction is that the recipient of a windfall is taxed, while the recipient of a gift is not.

Ian’s Legal Fact of the Week 3/24/14: The 19th Amendment

As the Constitution gave power to the states to determine voting qualifications, prior to 1910 no states allowed women to vote. This changed with the passage of the Nineteenth Amendment, which prohibited United States citizens from being denied the right to vote on the basis of gender. The Amendment was originally introduced in Congress in 1878 but not formally ratified until 1920. Wisconsin was the first state to vote to ratify, in June 1919; and the Amendment became official with Tennessee’s vote in August 1920, thereby making the presidential election of November 1920 the first in which women across the country could vote. That election saw Warren G. Harding and Calvin Coolidge on the Republican ticket defeat James M. Cox and Franklin D. Roosevelt on the Democratic ticket. The 48th and final state to ratify the Nineteenth Amendment, Mississippi, did so in 1984. Alaska and Hawaii were not states at the time the Amendment was ratified and therefore cannot vote to do so.

Ian’s Legal Fact of the Week 3/17/14: The Stupid Motorist Law

Arizona has a law popularly referred to as the “Stupid Motorist Law“, which renders motorists liable for the cost of their rescue. A response to the flash floods common in the Southwestern U.S., the law states that should a motorist ignore barricades blocking a flooded roadway and later need to be rescued by public emergency services, those costs can be billed to the motorist. Motorists can also find themselves criminally liable under other statutory provisions for offences such as reckless driving and endangerment.

Ian’s Legal Fact of the Week 3/3/14: Citizen’s Arrest

A citizen’s arrest — an arrest by a non-law enforcement officer — is statutorily provided for in 49 states (North Carolina is the exception) where a citizen observes a felony being committed, or when a citizen is asked by a law enforcement officer to help apprehend a suspect. States differ in whether a citizen’s arrest also extends to misdemeanors, crimes not witnessed by the arresting party, or to breaches of the peace.

Ian’s Legal Fact of the Week 2/24/14: Jury Nullification

The practice of jury nullification–where juries render a verdict in opposition to the evidence and the law–is a legacy of the common law notion of the independence of juries. Most commonly it involves juries acquitting a defendant in the face of guilt, due to their belief in the injustice of the law, or a belief that the law is being unjustly applied. In the case of Sparf v. U.S. (1895), the Supreme Court held that a trial judge has no responsibility to notifiy a jury of the right of nullification; as such, it is common practice for judges to forbid references to jury nullification. As of 2012, only one state — New Hampshire — allows defense attorneys to inform juries about this option.

Ian’s Legal Fact of the Week 2/17/14: Capital Punishment in the U.S.

The earliest recorded instance of capital punishment in the U.S. was in 1608, carried out in the Jamestown colony against a defendant for spying for the Spanish government. Three states have never implemented capital punishment during their statehood: Michigan, Alaska and Hawaii. Eighteen states and the District of Columbia have no enforceable death penalty statute, while 2 others have not administered it since 1976. Texas performs the largest number of executions, while Oregon has the highest rate per-capita.