Ian’s Legal Fact of the Week 9/12/16: The Incompatibility Clause

Posted on by March 6, 2018

The Constitution imposes several qualifications and restrictions on Congressional service, most notably in Article I, sections 2 and 3 (which sets out age, citizenship, and residency requirements), and the Incompatibility Clause in Article I section 6 which forbids members of Congress from also serving in the executive or judicial branches. Designed to foreclose patronage and corruption, it also effectively precludes a parliamentary-style of government in which office holders have both legislative and executive powers. Interestingly, it did not forbid simultaneous executive and judicial service – reflected by examples such as John Jay and John Marshall (both of whom served as Secretary of State while also serving on the Supreme Court). Such a practice would now be viewed as constitutionally suspect.

 

 

Ian’s Legal Fact of the Week 09/06/2016: The Number of Laws in the U.S.

Posted on by September 6, 2016

Want to guess the number of federal laws in the U.S.? Good luck– even the Library of Congress doesn’t know. While this is one of the most popular questions asked of the Library’s reference librarians, they point out that simply tallying the number of entries in the 125+ volumes of the Statutes at Large compendium would not suffice. Some laws repeal or amend previous laws, and the Statutes also do not include regulatory provisions or case law that has the force of law. On the state level, it is estimated that approximately 40,000 new state laws take effect every year. Unsurprisingly, there is also no reliable estimate as to the number of state laws in the U.S.

Ian’s Sporadic Legal Fact of the Summer 7/18/16: Failing to Plead

Posted on by July 18, 2016

Under the common law, a defendant who failed to enter a plea was subjected to peine fort et dure — pressing under heavy weights — until he or she either consented to plead or died by suffocation, as it was thought the defendant was not accepting the court’s jurisdiction.  In the U.S., the only recorded use was against Giles Corey in 1692, who died as a result of this procedure during the Salem Witch Trials.  It was formally abolished in the U.K. in 1772. In common law jurisdictions, failing to plead is now treated as a ‘not guilty’ plea.

Ian’s Legal Fact for the Summer 6/27/16: The Nineteenth Amendment

Posted on by June 28, 2016

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. The 48th and final state to ratify the Nineteenth Amendment, Mississippi, did so in 1984. Alaska and Hawaii were not states at the time of the Amendment and therefore cannot vote to ratify it.

Ian’s Legal Fact of the Week 4/25/16: ‘Wobbler’ Offenses

Posted on by April 25, 2016

A ‘wobbler’, otherwise known as a ‘hybrid crime’, is one that can be charged as either a felony or a misdemeanor. These crimes are said to ‘wobble’ between these two categories, as they can be charged as either based on a prosecutor’s discretion. The penalties are therefore dictated by whether the defendant is charged and convicted of a felony or misdemeanor. Examples include assault and DUIs (both of which may be charged as felonies if they result in serious harm or death) or grand theft (depending on the value of the property). California likely has the most wobbler offenses, as it has over a hundred on the books.

 

Ian’s Legal Fact of the Week 4/18/16: Taxes!

Posted on by April 18, 2016

The Sixteenth Amendment, passed in 1913, is probably one of the least well-known and yet most unpopular amendments, as it grants Congress the ability to levy a federal income tax. While the first federal income tax was levied during the Civil War as a result of the Revenue Act of 1861 (replaced the following year), the annual income tax has been alive and well for over a century. Oliver Wendell Holmes Jr’s quote in its defense — “Taxes are what we pay for civilized society” — is engraved on the front of the I.R.S. headquarters in Washington, D.C.

Ian’s Legal Fact of the Week 4/11/16: Be Kind to Lawyers Day!

Posted on by April 11, 2016

Distressingly, there is no official “Lawyer’s Day” in the U.S.–despite the fact that nearly half of the members of Congress are lawyers. In fact, a member of Congress in 2015 was 66x more likely to be a lawyer than the average American.  The second Tuesday in April is, however, informally known as “International Be Kind to Lawyers Day” and has its own website. It was designed to fall in the week between April Fool’s Day and U.S. Tax Day.

Ian’s Legal Fact of the Week 4/4/16: The Convention on the Rights of the Child

Posted on by April 4, 2016

Of the 197 members of the United Nations, only the U.S. has failed to ratify the Convention on the Rights of the Child (CRC). Adopted by the U.N. General Assembly in 1989, the CRC is now the most widely ratified international treaty. The CRC would also become the first universally ratified human rights treaty if the U.S. ratified it. President Clinton signed the treaty in 1995 but it has yet to be submitted to the Senate for the two-thirds vote required for ratification.

Ian’s Legal Fact of the Week 3/28/16: The 28th Amendment

Posted on by April 1, 2016

The proposed amendment currently closest to ratification is the “Lawyers’ Rights Amendment” (LRA), which if ratified would become the 28th Amendment to the U.S. Constitution. The LRA would make lawyers a protected class, and treat “comments, jokes and statements that tend to denigrate or otherwise sully the reputation of legal practitioners” as a form of hate speech. It has currently been ratified by 29 state legislatures, out of the required 38, and has no deadline for ratification.

April Fools!

Ian’s Legal Fact of the Week 3/21/16: Reading the Riot Act

Posted on by April 1, 2016

‘To read the riot act’– meaning to warn someone that their current actions will not be tolerated — has its origins in an actual legislative enactment. Formally entitled An Act for preventing Tumults and riotous Assemblies, and for the more speedy and effectual punishing the Rioters (U.K. 1715), but known more generally as The Riot Act, it was passed in response to widespread social unrest after the death of the last Stuart monarch of the U.K., Queen Anne. The statute had a procedural safeguard built into it, whereby no one could be prosecuted for violating it unless they remained on the scene of the riot for at least an hour after the Act was read to them in warning. It was repealed in 1973 but continues to live on as a popular idiomatic expression.

Ian’s Legal Fact of the Week 3/14/16: Insanity!

Posted on by April 1, 2016

The words “insane” and “insanity” are legal, rather than medical, terms. Contemporary legal definitions of insanity are derived from the M’Naghten test, formulated by the House of Lords in 1843, which set out the test as whether (a) the defendant knew what he was doing, and (b) if so, knew that it was wrong. It was adopted by the U.S in 1851, and remains the test in about half of the states. A handful of states–currently Idaho, Kansas, Montana, Utah and Vermont–do not allow for an insanity defense.