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Research & Litigation

Most Beautiful Season on the Hill – Pic of the Week

In Custodia Legis - Fri, 04/08/2016 - 8:53am

This is simply the most beautiful season on the Hill. Enjoy the beauty of the Library of Congress buildings in spring —

Library of Congress Jefferson Building. (Photo credit: Laney Zhang.)

 

Library of Congress Madison Building. (Photo credit: Laney Zhang.)

Categories: Research & Litigation

World Health Day

In Custodia Legis - Thu, 04/07/2016 - 1:24pm

This is a guest post by Constance Johnson, a senior legal research analyst at the Law Library of Congress.  Constance has previously written on Water Rights on Star Island, Law Relating to Refugee Rights – Global Legal Collection Highlights, and most recently on her summer vacation on Star Island.

April 7, 2016, is World Health Day. While not a popular major holiday (so no gifts, candies, or decorations, unfortunately), it is an important day for the World Health Organization (WHO). This year WHO is focusing on diabetes. The goal is to increase prevention efforts, strengthen provision of care, and enhance surveillance. It is also a good moment to look at international law as it applies to health concerns in a world made smaller by frequent travel and with new cross-border health threats, such as the zika virus.

International health law includes both regulations and framework conventions. WHO has published the International Health Regulations, as adopted in 1969 and amended through 2005. The regulations came into force in this form in 2007. Notable among the framework documents is the WHO Framework Convention on Tobacco Control. As of 2015, there were 180 states that were parties to this framework convention.

The Library contains numerous works on the subject of global health law, some general and others focusing on specific locations or aspects of health. Among the recent volumes are:

Alemanno, Alberto & Amandine Garde. Regulating Lifestyle Risks: The EU, Alcohol, Tobacco and Unhealthy Diets. 376 pp. Cambridge, UK: Cambridge University Press, 2015.

Durojaye, Ebenezer, ed. Litigating the Right to Health in Africa: Challenges and Prospects. 288 pp. Burlington, VT: Ashgate, 2015.

Freeman, Michael, Sarah Hawkes, & Belinda Bennett, eds. Law and Global Health: Current Legal Issues. 639 pp. Oxford, UK: Oxford University Press, 2014.

Kanter, Arlene S. The Development of Disability Rights Under International Law: From Charity to Human Rights. 351 pp. New York: Routledge, 2015.

Kelly, Brendan. Dignity, Mental Health, and Human Rights: Coercion and the Law. 216 pp. Burlington, VT: Ashgate, 2015.

Ludhra, Subash. Common Sense Guide to International Health and Safety. 121 pp. New York: Routledge, 2015.

Rose, Rachel, Jonathan P. Tomes, & Lance H. Rose. What Are International HIPAA: Considerations? 66 pp. Chicago: American Bar Association, 2015.

Rubin, Leslie & Joav Merrick, eds. Environment and Public Health: Environmental Health, Law and International Perspectives. 215 pp. New York: Nova Publishers, 2015.

Categories: Research & Litigation

2016 Law Day Program – 50th Anniversary of Miranda v. Arizona

In Custodia Legis - Tue, 04/05/2016 - 10:05am

Paulette Brown, president of the American Bar Association (ABA). Photo courtesy of the ABA.

It is spring time, which means, it is almost time to celebrate Law Day! The Law Library of Congress will host its annual Law Day program on Wednesday, April 27. The event will mark the 50th anniversary of the United States Supreme Court decision, Miranda v. Arizona, 384 U.S. 436 (1966).

Law Librarian of Congress Roberta I. Shaffer will interview Paulette Brown, president of the American Bar Association, about her distinguished legal career as well as the significance of Miranda v. Arizona. The Supreme Court decision addressed four legal cases in which criminal suspects were not issued legal warnings against self-incrimination during custodial interrogations. As a result of the ruling, police in the United States must inform criminal suspects in custody and during interrogation of their right to remain silent and have legal counsel. These constitutional rights are known today as the Miranda Warning or Miranda Rights.

Paulette Brown became the first African-American woman to lead the American Bar Association (ABA) in August 2015. She is partner and co-chair of the Diversity and Inclusion Committee at the international law firm, Locke Lord LLP. She has held many positions throughout her career including in-house counsel to a number of Fortune 500 companies and as a municipal court judge. In private practice, she has specialized in all aspects of labor and employment and commercial litigation.

Brown has been recognized by the National Law Journal as one of “The 50 Most Influential Minority Lawyers in America” and by the New Jersey Law Journal as one of the “prominent women and minority attorneys in the State of New Jersey.” She received the New Jersey Medal from the New Jersey State Bar Foundation and currently serves on its Board of Trustees. She has also repeatedly been named as a “New Jersey Super Lawyer” and by U.S. News as one of the Best Lawyers in America in the area of commercial litigation. In 2009, Brown was a recipient of the Spirit of Excellence Award from the ABA Commission on Racial and Ethnic Diversity in the Profession. In 2011, she was honored with the Margaret Brent Women Lawyers of Achievement Award by the ABA Commission on Women in the Profession. Brown, who served as president of the National Bar Association from 1993-1994, received that group’s highest honor, The C. Francis Stradford Award, in 2015. Brown earned a J.D. at Seton Hall University School of Law and a B.A. at Howard University.

Our event will begin at 3:00 p.m. in the Whittall Pavilion, located on the ground floor of the Thomas Jefferson Building, 10 First St. S.E., Washington, D.C. The event is free and open to the public; tickets are not required. The Law Library gratefully acknowledges Thomson Reuters and the Friends of the Law Library of Congress for their support of this program.

Law Day is a national day that celebrates the rule of law and its contributions to the freedoms that Americans enjoy. In 1957, the American Bar Association instituted Law Day to draw attention to both the principles and practices of law and justice. President Dwight D. Eisenhower established Law Day with a proclamation in 1958. For more information about the 2016 Law Day theme —”Miranda: More than Words“—visit lawday.org.

We hope you can join us! If you are unable to join us in person, you can follow us on Twitter, @LawLibCongress leading up to and during the event, using #LawDay.

Also, stay tuned for a digital presentation of items that we will feature on Law.gov related to the 50th anniversary of Miranda v. Arizona!

Categories: Research & Litigation

Congress.gov Spring Cleaning: Expanded Quick Search

In Custodia Legis - Mon, 04/04/2016 - 2:13pm

Over the last several months, we have added a variety of enhancements to Congress.gov.  It began with the Communications in October, the Congressional Record Index in December, and the XML Bulk Data via GPO in February.  Today’s update focuses on expanding Quick Search on Congress.gov.

When the Quick Search on Congress.gov first launched in December 2015, the initial focus was on legislation.  With this release, there is now a Quick Search for:

Expanded Quick Search on Congress.gov

One nice addition across Quick Search is the ability to turn on and off both word variants and case sensitivity.

Word Variants/Case Sensitive

If you want to run a search on AIDS and do not want results with foreign aid, for example, mixed into the result set, you can uncheck Word Variants and check Case Sensitive before running your search.

There are also a couple of new fields added to what we affectionately refer to as the Accordion of Knowledge (the expandable/collapse-able area currently on the bottom half of the Command Line search: Action Date (actionDateStr:) and Cosponsorship Date (cosponsorDateStr:).  A great thing about the Accordion of Knowledge is that for each item in it there is an example that you can cut and paste into the search box.

Margaret and Robert continued working on the Congress.gov Appropriations Table and added Fiscal Year 2001 and 2002.

In addition to some of the more visible changes to Congress.gov, with this release there were approximately 30 new changes based on requests from our congressional data partners.

As part of our ongoing effort towards retiring THOMAS, we have started to redirect selected links from THOMAS to Congress.gov. The image below of the THOMAS homepage shows the links that now go Congress.gov.

Circled links on the THOMAS homepage now redirect to Congress.gov as part of the effort to retire THOMAS.

Robert once again added a complete run through on the Congress.gov Enhancements page:

New feature – Quick Search for more data collections:

  • Congressional Record
  • Committee Reports
  • Nominations
  • Treaty Documents
  • Communications to the Senate

New feature – RSS Feeds:

  • RSS feeds similar to those in THOMAS have been added:
    • Most Viewed Bills
    • Search Tips
    • House Floor Today
    • Senate Floor Today
    • Bills Presented to the President

New feature – Word variants and case sensitivity:

  • Word variant controls allow you to find ‘parking’ without false hits for ‘parks’
  • Case sensitivity controls allow you to find ‘TIGER’ without false hits for ‘tiger’
  • Quick search and Command Line support word variants and case sensitivity

Enhancement – Nominations links to hearings:

  • Nominations Actions link to hearings

Enhancement – New Command Line Search Fields:

  • Find legislation by dates of action with ‘actionDateStr’
  • Find cosponsorships by date with ‘cosponsorDateStr’

I encourage you to keep submitting your feedback for Congress.gov.  Whether it is a little issue or a new suggestion, we are listening.  I recently presented a Congress.gov Deep Dive with Barbara to LLSDC.  An attendee pointed out how the default search on Congress.gov started off being All Legislation.  She (and a few others) submitted feedback that it change to Current Legislation.  This is just one example of where feedback fueled an update to our site.

Categories: Research & Litigation

Fire Alarm During the Blog Team Meeting – Pic of the Week

In Custodia Legis - Fri, 04/01/2016 - 9:59am

During a recent blog team meeting, the fire alarm went off causing the bloggers to cut short the meeting and quickly leave the building.  But our bloggers are a determined group and the meeting picked back up again outside once we regrouped.

It also provided a nice backdrop to highlight and thank Patrick.  He is a member of the Library of Congress Medical Emergency Response Team, which is run by the Library’s Health Services.

Patrick Ouellette, a member of the Library of Congress Medical Emergency Response Team

When Patrick is not donning the red vest and backpack, he is an IT specialist here at the Law Library of Congress.

After getting more planning done outdoors for In Custodia Legis, we were, thankfully, able to resume work indoors after the evacuation caused by a rogue sprinkler.

Categories: Research & Litigation

Happy Birthday, César Chávez!

In Custodia Legis - Thu, 03/31/2016 - 1:42pm

“Sculpture located in César Chávez Plaza in downtown Sacramento, California’s capital city on the site of the old city plaza” by Carol M. Highsmith, http://www.loc.gov/pictures/item/2013633592/

Sí se puede.—César Chávez
First President of the
United Farm Workers
Organizing Committee (UFWOC)

Born March 31, 1927, César Estrada Chávez is perhaps the most renowned Latino civil rights activist. Two years ago, perhaps with the aim of seeing “one of America’s greatest champions for social justice” get his rightful place among his peers, President Obama proclaimed “March 31, 2014, as Cesar Chavez Day.”  The president issued the third iteration of the César Chávez Day, Presidential Proclamation, March 30, 2016.

The Presidential Proclamation serves as a brief overview of the achievements of this leader of Latino civil rights. Within it, the president reminds us that migrant farm workers “were exposed to dangerous pesticides and denied the most basic protections, including minimum wages, health care, and access to drinking water.”

Also this month, on March 17, 1966, we celebrated the 50th anniversary of the event best known as the March to Sacramento.  Thanks to Roberto Bustos (“El Capitán”), who marched along with César Chavez, we are reminded of that “twenty-five-day, three-hundred mile pilgrimage from California’s San Joaquin Valley” to Sacramento, California (Steven Harmon Wilson, p. 143).

For those of you who enjoy documentaries, there is a documentary titled The Fight in the Fields: Cesar Chavez and the Farmworkers’ Struggle, which according to Jack Hailey, “traces the history of the United Farmworkers Union and the life of its founder” (Jack Hailey, IMDb).

Categories: Research & Litigation

FALQs: New Zealand’s Flag Referendums

In Custodia Legis - Wed, 03/30/2016 - 11:39am

Current New Zealand flag. Source: New Zealand Government.

Between March 3 and March 24, 2016, New Zealanders were able to vote in the country’s second referendum related to whether or not to change the official flag.  Previously, in November-December 2015, voting in the first referendum narrowed the list of possible alternative flag designs from five to one; the second referendum was a run-off between the preferred alternative and the current flag.

The flag debate and referendums have been the subject of widespread media coverage, both in New Zealand and overseas.  I have had several people ask me about the process, with particular reference to certain designs submitted by New Zealanders themselves as part of a nationwide search for a new flag.  You may well have heard about the “Laser Kiwi” design, or possibly the “Sheep and Hokey Pokey,” or maybe the “Kiwossum.”

You may also have heard by now that the results of the second referendum are in, and they fell on the side of keeping the current flag.  The preliminary figures were 56.6% in favor of the current flag and 43.2% in favor of the proposed alternative.  The official result, released today, confirmed these figures.  Regardless of the result, the fact that this was the first transparent and democratic process for deciding on a country’s flag is significant.  In this post, I highlight some of the key steps in the process and the various laws involved.

1.  What led to New Zealand considering changing the flag?

Silver Fern flag. Source: New Zealand Government.

New Zealand became a British colony in 1840 and was effectively made self-governing (at least in relation to domestic matters) in 1856.  The current flag was officially adopted through the passage of the New Zealand Ensign Act in 1902, although its origins date from 1865. Under the Colonial Naval Defence Act of 1865, vessels from the colonies were instructed by Britain to fly the Blue Ensign with the seal or badge of the colony on it.  The Blue Ensign consists of a royal blue background with a Union Jack in the canton (top inner corner) of the flag.  In 1869, the Governor of New Zealand directed that the Southern Cross, represented by four five-pointed red stars with white borders to correspond with the colors of the Union Jack, be added to the flag.

Steps towards full independence from Britain were taken incrementally throughout the 20th century.  For example, the adoption of the Statute of Westminster in 1947 confirmed that only the New Zealand Parliament has the power to make laws for the country, and the Constitution Act 1986 formally ended any residual British legislative powers.  In 2003, the use of the Privy Council in London as the final court of appeal was abolished by the Supreme Court Act 2003.  The relationship between New Zealand and Britain also changed more broadly over the century, with Britain joining the European Economic Community in 1973 and New Zealand’s trading relationships shifting to focus on countries in the Asia-Pacific region.  In 2013, Asia overtook the United Kingdom as the most common birthplace among people living in New Zealand who were born overseas.

Some have argued over the past several decades that the current flag, featuring the Union Jack, no longer represents or reflects New Zealand’s current status as an independent, multicultural nation.  People have also decried the fact that the flag is quite similar to the Australian flag, which has occasionally caused confusion internationally.  On the other hand, many people feel an attachment to the flag for various reasons, such as New Zealand troops serving under the flag in both World Wars.  They may also see it as continuing to represent the country’s past and present, including its ties with Britain and the Commonwealth.

The debate and referendum process over the last couple of years was certainly not the first time that there had been discussions about changing the flag.  Most recently, in 2005, the NZFlag.com Trust launched a petition for a referendum on an alternative design, which gained 100,000 signatures and was therefore considerably short of the approximately 270,000 signatures required.  Then, in 2010, a member of Parliament put forward a bill that proposed the establishment of a commission to consult on possible flag designs, to be followed by a referendum.  While this bill did not progress, the current prime minister, John Key, who had long advocated for a change, first suggested in January 2014 that he thought there should be a referendum on the flag.  Then, in March 2014, Key announced that a public vote on the flag would be held within three years.  He subsequently announced in October 2014 that the Cabinet had agreed to a two-stage referendum process, which would commence in 2015.

2.  What actions were taken before the referendums?

Australian and New Zealand flags. Photo by Flickr user Scott Davies (Jan. 26, 2007). Used under Creative Commons License 2.0, https://creativecommons.org/licenses/by-nc/2.0/.

While a majority of Parliament could simply pass legislation to change the flag, which would involve amending the current law, the Flags, Emblems, and Names Protection Act 1981, the government felt that the decision should be made by voters.

Following the Cabinet decision regarding the referendum process, the leaders of the political parties represented in Parliament met to review draft legislation regarding the referendums and to discuss candidates for a Flag Consideration Panel.  The membership of this Panel was announced in February 2015 and consisted of twelve New Zealanders with a range of backgrounds and experience.  The Panel first met in March and held 25 public meetings around the country in May and June.  It produced documents and a video on the history of the flag to assist and inform the discussions.  The Panel also invited people to submit their flag designs for consideration.

The legislation that officially put the two referendums in motion, the New Zealand Flags Referendum Act 2015, was passed in August 2015.  It provides for the referendums to be binding.  It states that, if a new flag design was chosen in the second referendum, it would come into effect six months after the results are declared, or earlier by way of an Order in Council.

The estimated cost of the process over two years, including the public consultation process and the two referendums, was NZ$25.7 million (about US$17.5 million).  This amount of expenditure was actually one of the more contentious matters in the debate over whether to change the flag.

3.  How were the five designs in the first referendum selected?

The New Zealand public responded in large numbers to the Panel’s invitation to submit flag designs.  A total of 10,292 designs were submitted before the closing date of July 16, 2015.  In reviewing the designs, the Panel agreed that a flag design should:

  • unmistakably be from New Zealand and celebrate us as a progressive, inclusive, environmentally connected country, that has a sense of its past and a vision of its future;
  • be a ‘great’ flag, which means that; it adheres to the principles of good flag design, has an enduring quality which will not become outdated, and would work well in all situations from celebration to commemoration;
  • be inclusive, in that all New Zealanders should be able to see themselves within it; and
  • not have any impediments to its use as a potential New Zealand flag.

On August 10, 2015, the Flag Consideration Panel announced that it had selected a long-list of 39 designs.  Then, on September 1, 2015, the Panel released the four alternative designs that people would be asked to rank in the first referendum. However, this list did not include a design that had been gaining support on social media – the “Red Peak” design.  Following further efforts on social media, resulting in 50,000 people signing a petition for the design to be included in the referendum, Parliament passed amending legislation in September 2015 to enable a fifth option to be added the referendum ballot paper.

Information on the five alternative designs was provided in English, Maori, and 24 other languages.

4.  What happened in the first referendum?

The first referendum involved a postal ballot and a preferential voting system whereby voters were asked to rank the five alternative designs from 1 to 5, with 1 being their most preferred option.  More than 1.5 million people (slightly less than 50% of all enrolled voters) submitted a ballot paper.  About 10% of the total votes were “informal,” meaning that they didn’t clearly indicate a first preference.

The flag design that actually won the popular vote (receiving the most number 1 votes) was by a designer, Kyle Lockwood, and was called “Silver Fern (Red, White and Blue).”  However, due to the preferential voting system, where options are eliminated and votes transferred and recounted until an absolute majority is reached, the same designer’s “Silver Fern (Black, White and Blue)won with 50.58% of the votes, compared to the red design which received 49.42%.

5.  What happened in the second referendum?

In the head-to-head vote between the current flag and Lockwood’s Silver Fern design, more than 2 million voters sent in their ballot papers (a turnout of 67.3%).  About 1.2 million voted to retain the current flag, giving it 56.6% of the total vote.  This time, only 0.24% of the votes were considered informal, while a further 0.25% were invalid and excluded from the the count.

6.  What happens now?

With the voting process over, some of course will be lamenting that an opportunity to change the flag has been lost, while others will be celebrating that the old flag will remain in place.  There have been various articles published commenting both on the outcome and the process itself, including the possible political factors involved and the cost to taxpayers.  It has been suggested that these aspects – the support of certain politicians for change and the view that the money would have been better spent on other causes – were key factors in people voting to retain the status quo.  Another factor suggested as having affected the outcome was that, while many people do want a new flag, they simply did not like the alternative offered to them in the referendum.

Anecdotal evidence aside, the results of the referendum do show that many people would like to see a change away from the current flag.  Perhaps this will mean there is ongoing impetus for discussion and debate, or perhaps this topic will die down for now and re-emerge in the future, just as it has before.  Some have called for a broader discussion about the country’s constitutional arrangements and “place in the world,” which could include examining its national symbols.  The consultation process regarding the flag, and previous efforts at public engagement around broader constitutional questions in 2005 and again in 2011-13 (resulting in a recommendation to continue the conversation), have shown how difficult it is (or at least how much time it takes) to build some kind of national consensus for change, even in a small country such as New Zealand.  It is possible to see these events as part of a longer term “nation building” process, with ongoing discussions potentially leading to both small and large developments in constitutional laws, policies, structures, relationships, and symbols.

7.  What other countries have changed their flags?

World Cup South Africa flags. Photo by Flickr user Steve Evans (June 11, 2010). Used under Creative Commons License 2.0, https://creativecommons.org/licenses/by-nc/2.0/.

One example that probably immediately comes to many people’s minds is Canada.  Canada’s Parliament voted in December 1964 to change the flag from the Union Jack (the Canadian Red Ensign was frequently used but was not actually the official national flag) to the current maple leaf design.  This followed many decades of discussion about possible designs and considerable, often acrimonious, debate in the Parliament and among the public over a period of several months.  Prior to the vote, a special parliamentary committee examined many possible designs. The Queen proclaimed that the maple leaf flag would become the national flag from February 15, 1965.

Another example is the South African national flag, which was first used in 1994.  The change came with the end of apartheid – the African National Congress sought the adoption of a new flag as part of the negotiation process.  A competition to design the new flag saw more than 7,000 entries being submitted.  However, these were all rejected and an “interim” flag, merging elements of the old flag with that of the ANC, was adopted until there could be agreement reached on a new design.  This temporary flag was not replaced as originally intended, and ended up being officially adopted in the new Constitution.

In fact, many countries have changed their flags in either minor or substantial ways.  Often this has followed constitutional or revolutionary change, such as the recent examples of Libya, Venezuela, Georgia, and Myanmar.

In terms of the Commonwealth, out of 53 member countries, only four (Australia, New Zealand, Fiji, and Tuvalu) outside of the UK continue to have some form of British ensign that includes the Union Jack.  It is interesting to note that the official flag of Hawaii also currently incorporates the Union Jack.  There have recently been discussions in Fiji regarding changing the flag, although, as in New Zealand, there are some concerns about the costs.  Tuvalu has not indicated that any changes are forthcoming.  While there have long been discussions about the flag in Australia, there has perhaps been a greater focus on whether the country should become a republic (a referendum on this issue was held in 1999).  There are currently no proposals from the government for a process to consider changing the flag.

Categories: Research & Litigation

James Madison’s 265th Commemorative Birthday

In Custodia Legis - Tue, 03/29/2016 - 2:31pm

Mary Bilder, author of “Madison’s Hand Revising the Constitutional Convention,” speaks at a panel discussion on Madison in honor of his 265th birthday, March 16, 2016. Photo by Shawn Miller.

On Wednesday, March 16, the Law Library and the Library’s Manuscript Division commemorated James Madison’s 265th birthday with a panel discussion by distinguished attorneys and Madison biographers Mary Sarah Bilder and David O. Stewart, and a birthday cake celebration that featured musical performances by Stephen Winick and Jennifer Cutting of the American Folklife Center. The events were held in the James Madison Memorial Building, which serves as the official national memorial to the fourth president of the United States.

Madison is most commonly remembered as the “father” of the United States Constitution and Bill of Rights. The speakers substantiated Madison’s role in the drafting and ratification of the Constitution, and through their compelling research presented a more comprehensive and complex view of the Founding Father’s personal and political life.

Roberta I. Shaffer, law librarian of Congress, opened the program by discussing Madison as a bibliophile, noting his large collection of books and his instrumental role in establishing a legislative library. Jim Hutson, chief of the Manuscript Division, then discussed the Madison Papers (Madison’s notes on the 1787 Constitutional Convention), citing them as one of the Library’s great treasures. Hutson also described the Library’s circuitous acquisition of the Papers, noting that they are now digitized for public use.

Mary Sarah Bilder, law professor and Michael and Helen Lee Distinguished Scholar at Boston College of Law and author of Madison’s Hand: Revising the Constitutional Convention, focused her remarks on what she described as four aspects of Madison: “Madison as note taker [at the Constitutional Convention], politician, drafter and reviser.” Bilder said that forensic techniques she conducted on Madison’s notes led her to conclude that “Madison revised his notes as his understanding of the Convention, Constitution and his own role at the Convention changed.” Even though Madison was not the official secretary of the Constitutional Convention, his notes are highly regarded because they “depict the convention as a political drama with compelling characters, lengthy discourses on political theories, crushing disappointments and seemingly miraculous successes,” according to Bilder. The notes cover every day of the Convention from May 14 through September 17, 1787.

The problem, Bilder explained, is that Madison did not write his account as a court reporter or stenographer, but rather as a legislative diary likely intended for his own and Thomas Jefferson’s use. (Jefferson was in Paris during the Convention.) For that reason, his note-taking was very selective, she said, and scholars tend to agree that they “only capture 10 percent of what was likely said at the Convention.” Madison also revised his notes in later years to better position himself politically or reflect what he wished he had said at the Convention.

For example, she noted that Madison was on record at the Convention as a vehement supporter of a strong national government that would have suppressed state rights by giving veto power over state laws and that he voted in support of Alexander Hamilton’s proposal to allow the president to serve on “good behavior”—that is serve a life term appointment. Madison also supported a bicameral congress that would have been two houses—one representing free men and the other representing free and enslaved African-Americans, without giving any voting rights to enslaved African-Americans. This proposal according to Bilder would have favored Virginia as the state with the largest enslaved population at the time. Furthermore, Bilder noted that Madison “freed no one at his death” and continued to revise his notes until the end of his life. On the other hand, she cited Madison as an indispensable member of the constitutional drafting committees, who loved to write and often made thoughtful contextual changes.

David Stewart, author of Madison’s Gift: Five Partnerships that Built America, described Madison as a man with “good political judgement who had the foresight and a gift of working with other people.” He described Madison as a short, skinny man with a small voice and thinning hair who could easily become lost among other charismatic figures of the day like George Washington and Thomas Jefferson. Despite Madison’s small stature, he had a grand political resume, Stewart said, which included note taker and delegate at the Constitutional Convention; fighter for constitutional ratification through the Federalist Papers; leading member of the first Congress; author of George Washington’s inaugural address and the Bill of Rights; Jefferson’s secretary of state; co-founder of the first American political party; and wartime president during the War of 1812.  Stewart said his historical research persuaded him that most of Madison’s greatest achievements were the result of great partnerships, most notably his partnerships with Alexander Hamilton, George Washington, Thomas Jefferson, James Monroe, and First Lady Dolley Madison.

Although Hamilton was flashier and more boisterous than Madison, Stewart argued that they found their commonality in both being highly intelligent and committed to “making America a great nation in the world,” their greatest collaboration being their work on the Federalist Papers according to Stewart.

Stewart described George Washington as the “indispensable man” of the early republic and that Madison became the “indispensable man to the indispensable man”—passing the legislation Washington wanted, writing the speeches he needed and serving as the liaison between Washington and Congress particularly through speech and legislative writing.

Thomas Jefferson and Madison were “soul mates,” according to Stewart. “They were both the sons of rich Virginia fathers and their forty year friendship covered every subject,” he said. Stewart also argued that their greatest achievement was founding the Democratic-Republican Party.

According to Stewart, Madison’s partnership with James Monroe was the most relaxed partnership that he examined, despite the fact that Monroe ran for president against Madison. Monroe agreed to serve as Madison’s secretary of state and helped him defeat the British in the War of 1812.

Lastly, Stewart discussed Madison’s relationship with First Lady Dolly Madison, who Stewart characterized as “so much fun,” often wearing white turbans with either fruit or a feather tucked inside. Stewart argued that Dolly really served more as a political partner to Madison because, unlike her husband, she knew how to be charming and gregarious with White House guests. Stewart also shared Dolley’s historical achievement in saving the Gilbert Stuart painting of George Washington during the War of 1812 from British troops.

Stewart remarked in closing that it is important to remember that while Madison had many achievements, he was also a slaveholder for 85 years, a fact that troubled Madison according to his own memoranda. “He realized his own hypocrisy of championing liberty as a slaveholder,” Stewart said. On the other hand, Stewart argued that Madison’s personal and political partnerships reveal a man of “genuineness, integrity, modesty and openheartedness.”

A video of this event will be posted on our YouTube playlist, as well as in this blog, once it becomes available.

Categories: Research & Litigation

Signers of the Declaration of Independence – Pic of the Week

In Custodia Legis - Fri, 03/25/2016 - 10:00am

During my time as a docent for our Magna Carta: Muse and Mentor exhibition, I noticed various names on the coffered ceiling of the South Gallery where the exhibition was housed.  I was puzzled as to who these persons were until I saw Josiah Bartlett‘s name.   Thanks to my years of watching The West Wing, I realized these names belonged to the signers of the Declaration of Independence.

I thought it would be fun to look at the South Gallery ceiling more closely, so a couple of weeks ago, Andrew, Hanibal, and I took a little field trip over to the Jefferson Building.  Thanks to our colleagues in the European Reading Room, we were able to access the walkway around the upper part of the room, which allowed us to get up close and personal with the ceiling.

View of the Jefferson Building South Gallery ceiling / Photograph by Andrew Weber

 

Although I was familiar with some of the signers, Hancock and Adams, for example,

Ceiling detail, South Gallery, Jefferson Building / Photograph by Andrew Weber

I was much less familiar with those of Lynch and Rutledge.

Ceiling detail, South Gallery, Jefferson Building / Photograph by Andrew Weber

Doing further research, I found a chart on the National Archives website which provides basic information about the signers, including dates of birth and death, profession, and birthplace.  I found that Thomas Lynch, Jr. and Edward Rutledge were the two youngest delegates to Congress, both aged 26 and both from South Carolina.  Arthur Middleton was also from South Carolina which made me realize that the names on the squares were organized by colony.  So, returning to the Adams, Hancock square above, the five delegates from Massachusetts were listed there: John Adams, Samuel Adams, Elbridge Gerry, John Hancock and Robert Treat Paine.  And even though we could not get a clear view of the fourth side of the South Carolina panel, I am sure it lists Thomas Heyward, Jr., the other delegate from South Carolina.

The delegates to the second Continental Congress were an interesting group.  The signers ranged in age from 26 to 70 with the oldest being Benjamin Franklin of Pennsylvania.  Franklin was an outlier in the group: 43 of the 56 signers were 50 or younger.  At least 23 of them were lawyers while 15 were identified as merchants.  There were several physicians, ministers, and plantation holders in the group and there were two land speculators, William Floyd of New Jersey and Robert Morris of Pennsylvania.  Franklin is the only printer in the group, but he is also identified as a scientist, along with Jefferson and Robert Treat Paine of Massachusetts.  The other interesting category which caught my eye on this chart was the delegates’ birthplaces–eight of those who signed the Declaration had been born outside the colonies in England, Ireland, Scotland and Wales.  It struck me that I could spend many more hours researching all the signers–for example, I did not know that Elbridge Gerry of Massachusetts had been President Madison’s vice president during his second term.  I suspect the interconnection between all these men and the early decades of our country would make for a fun trivia game, with cards embossed with the signers’ names as displayed on our ceiling!

For other posts about the art in the Jefferson Building, you can look at Donna’s blog series “Glimpse of Law.”

Categories: Research & Litigation

Becoming the Plutarch of Renaissance Lawyers

In Custodia Legis - Thu, 03/24/2016 - 4:38pm

Quid sit quod multi vitas principum and ducum… diligentissime conscripserint atque inde genus hoc scribendi profectum, paulatim ad eos homines pervenerit, qui leniores quodammodo virtutes profitentur, Philosophos dico, Medicos, Oratores, Poetas… donec ad Rhetores ac Grammaticos deventum est, nemo adhuc extiterit, qui sibi Legumlatorum et Iurisprudentum vitas in argumentum iusti et peculiaris operis desumpserit…

How is it that many authors have so diligently written the lives of princes and generals and once this genre of writing was well-covered, gradually they turned to write about those men who profess virtues that are somehow more delicate – I mean philosophers, physicians, orators, poets, even rhetoricians and grammarians. Yet there has not been one author thus far who has chosen to write a proper, narrowly tailored work on the lives of legislators and jurists… (Translated by author.)

Bernardino Rutilio, Jurisconsultorum Vitae (Basel, n.d.).

These words are from the preface of Bernardino Rutilio’s Jurisconsultorum Vitae (Basel, n.d.), the earliest extant book-length work dedicated to legal biography. Rutilio asks why were there no biographies of lawyers before he set out to write one. This type of question was very common among humanist authors of the 16th century.  They were aware that they were engaged in new kinds of writing, and that they were retooling old literary forms. In their rhetoric they suggested that the changes they made were commonsensical. It seemed obvious to write about lawyers. How could other authors have missed the opportunity?

The 1536 Rome edition of Bernardino Rutilio’s Jurisconsultorum Vitae. [Photo credit: Andrew Weber]

Much can be said about Rutilio’s observation. Sometime between the end of the 15th century and the middle of the 16th century, European writers began composing biographies of intellectuals. Until that time, with few exceptions, people wrote biographies about two types of subjects: military and political leaders on the one hand, and churchmen and saints on the other. Within a few decades, however, all of that changed as a large and popular literature that celebrated the lives of men of letters – poets, theologians, philosophers, historians, physicians and jurists – arose throughout Western Europe. Alongside piety and military might, these new biographies suggested that intellectual greatness deserved widespread public acclaim as well. Legal biography owes its origin to that innovation.

Bernardino Rutilio (1504-1538), an author who wrote on legal and ecclesiastical topics, was active in Germany and Italy at the beginning of the 16th century. His Jurisconsultorum Vitae (Lives of the Jurists) is a survey of the lives of lawyers in Roman antiquity. Beginning with Papirius (fl. 509 BC), the first known Pontifex Maximus in Roman history, and ending with Tribonian (d. 582 CE), who was the jurist that the Emperor Justinian appointed to edit the legal code of the Roman Empire, the work’s 77 entries detail the circumstances of the subjects’ lives and activities, and highlight their contribution to literature and the law. In the work’s dedicatory letter, Rutilio explains that he writes about these lives so that the reader might use them as a model, either to be emulated or avoided, in pursuit of a good life. This is to be preferred, he says, to living without a conscious model, a way of life that can only result in “an unruly and confused inter-sprinkling of good and bad…”

Half-title of the first edition of Fichard’s Vitarum Recentiorum Iureconsultorum Periochae (Basel, n.d.) [Photo credit: Andrew Weber]

 

Rutilio’s moral purpose in writing the Vitae echoes themes that can also be found in the works of ancient biographers such as Plutarch and Suetonius who wrote about political leaders – the lives of the great can instruct in a way that is conducive to the public good. The new biographers’ innovation was to take up this idea and apply it to the lives of their subjects, whatever their field of endeavor. Another example appears in the second instance of legal biography ever published: Vitarum Recentiorum Iureconsultorum Periochae (Basel, n.d.) (Summaries of the Lives of the More Recent Jurists), by Johannes Fichard (1512-1581).

Fichard’s Periochae is a collection of biographies of important lawyers who lived from the time of the rediscovery of the Roman law (sometime in the 11th century) until the beginning of the 16th century. It begins with Irnerius, who established the medieval Roman law tradition in Bologna at the end of the 11th and beginning of the 12th centuries, and concludes with Fichard’s own teacher, the German humanist jurist Johann Ulrich Zasius (1461-1536) who taught in Freiburg until 1536. Each entry recounts the events of the subjects’ lives and locates their legal accomplishments in a narration of their professional lives and institutional affiliations. Like Rutilio, Fichard explains the value of biographies in the preface to the work. The study of a variety of lives, he argues, makes our minds free (ut liberaremur) as much as it gives pleasure.

This device of Robert Winter, Johannes Oporino’s brother-in-law and business partner, appears on the verso of the last printed page of the first edition of Vitarum Recentiorum Iureconsultorum Periochae. In it, Athena holds the head of the Gorgon in her right hand. Her owl is at her left. [Photo credit: Andrew Weber]

If Rutilio’s and Fichard’s books seem to be a matching set, it is no coincidence. Rutilio’s book was first published in 1536 by Antonio Blado in Rome. Not long after its publication, Johannes Oporinus (1507-1568), the famous Basel printer, sought Fichard’s assistance in creating a companion volume to that work. That volume would complete the history of Roman lawyers that Rutilio began by bringing the story of the Roman law from its rediscovery in the middle ages up to the present day. Fichard, who was quite young, but already an up-and-coming scholar, had produced earlier that year a collection of biographies of his favorite humanist authors entitled, Virorum qui superiori nostroque seculo erudition at doctrina illustres atque memorabiles fuerunt vitae (Frankfurt, 1536). Some scholars have described his book as hastily thrown together, a cut-and-paste of short essays by other authors. But to Fichard’s credit, he made a creative attempt in his book to imitate the parallel structure of Plutarch’s Lives that was successful enough to attract Oporinus’ attention.

Fichard agreed to write the book, and as planned, Oporinus – or more likely his brother-in-law, Robert Winter – printed the first edition of Fichard’s Periochae as a companion volume to a new edition of Rutilio’s Vitae. Its year of publication is unclear. It includes a dedicatory epistle by Rutilio, which is quoted at the top of this post. That dedication also appears in a 1538 edition of Rutilio’s Vitae by the Lyon Printer Germain Rose for which it may have been prepared. Another interesting feature of the joint publication of Rutilio’s and Fichard’s books is the inclusion of a composition that was discussed here in an earlier post on this blog: Giovanni Nevizanno’s Inventarium librorum in utroque iure hactenus impressorum, or “An Inventory of the Books on Civil and Canon Law Printed to Date,” originally printed in Lyon in 1522. Nevizzano’s Inventarium was the first printed bibliography of law books. And like Nevizzano’s book, Rutilio and Fichard’s biographies were designed to provide the market with a comprehensive view of legal authorities and their contributions, offering a tool for organizing information about a body of scholarship that was growing at an unmanageable rate.

Fichard’s Periochae enjoyed some success, appearing in subsequent editions in 1565 and 1584 and in a 1721 compilation by Guido Panciroli, which reproduced the 1565 edition.

The following titles can be found in the rare books collection of the Law Library of Congress:

Iurisconsultorum vitae / Bernardino Rutilio autore.
Romae : Apud Antonium Bladum, 1536

Iuris consultorum vitae : nouissimè elimatae & mendis non paucis quibus scatebant, repurgatae / Bernardino Rutilio autore.
Lugduni : Apvd Germanum Rose, 1538.

Iurisconsultorum vitae / veterum quidem per Bernardinum Rutilium, unà cum eiusdem Decuria ; recentiorum vero ad nostra usq[ue] tempora / per Ioannem Fichardum Francofurtensem ; ad haec Indices duo locupletissimi omnium scriptorum in iure tam pontificio quàm ciuili à ueteribus & recentioribus iureconsultis ad haec nostra usq[ue] tempora editorum / per Io. Neuizanum, Lud. Gomessium, & Io. Fichardum collecti.
Basileae : [s.n.], [1539?]

Panciroli, Guido, 1523-1599.
De claris legum interpretibus libri quatuor
Guidi Panziroli Regiensis, JCti et in Gymnasio Patavino juris interpretis, De claris legum interpretibus libri quatuor : accessere Joannis Fichardi … Vitae recentiorum JCtorum, Marci Mantuae … Epitome virorum illustr[ium], Joan. Baptistae de Gazalupis Historia interpretum et glossatorum juris, Catellani Cottae Recensio brevis insignium juris interpretum et doctorum, Matth. Gribaldi Mophae Catalogus interpretum juris civilis, Alberici Gentilis De juris interpretibus dialogi sex : quibus tum vitae JCtorum clarissimorum exponuntur tum et fata restituti juris Rom. ac jurisprudentiae novissimae origo, varia item academiarum historiam illustrantia recensentur / cura D. Christiani Godofr. Hoffmanni.
Lipsiae : Apud Jo. Frid. Gleditschii B. filium, 1721.

 

Categories: Research & Litigation

How Many Federal Laws Were Passed Last Year?

In Custodia Legis - Wed, 03/23/2016 - 9:52am

The following is a guest post by Shameema Rahman, senior legal research specialist in our Public Services Division.

How a bill becomes a law. Delivered to the chief bill clerk by a page boy, the bill is given a number and sent to the Government Printing Office for printing. William McDermott, chief bill clerk of the house, is shown numbering a bill brought to him by page John Jurgensen. Photograph by Harris and Ewing. (Created 1937 or 1938). Courtesy of the Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/hec.24079

The United States Congress passed 115 Public Laws in 2015. The laws are numbered from Public Law 114-1 through Public Law 114-115. The number 114 represents the current congress followed by the numerical order of the law. These public laws also include appropriation bills. Would you like to see more information about congressional activities during the year 2015? Check out the Interim Resume of Congressional Activity which reviews congressional activity from January 6 to December 18, 2015.

It is interesting to compare the number of laws enacted by the U.S. Congress with that of other jurisdictions. For example, in Bangladesh the legislature passed 17 laws in 2015, South Africa passed 23 laws and during its current legislative session (which began in October 2013) Germany has passed 249 laws.

Do you want to view the legislative resources offered by other countries? Our Guide to Law Online site provides links to parliamentary and legislative websites of many countries around the world. If you click on Nations of the World, you will see all the countries in alphabetical order. If you need help using the site, or would like assistance in locating the laws of different countries using their legislative websites or other resources, you can contact us through our Ask a Librarian service.

Categories: Research & Litigation

¡Happy Birthday, Benito Juárez!

In Custodia Legis - Mon, 03/21/2016 - 12:16pm

Photo of a portrait depicting Benito Juárez by Salvador Martínez Báez in the Library of Congress Hispanic Reading Room. According to Georgette Dorn, chief of the Hispanic Division, this portrait was gifted to the Hispanic Division by the late Senator Michael Joseph Mansfield, who had received it in 1973 from then president of Mexico Luis Echeverría.

…el respeto al derecho ajeno es la paz.–Benito Juárez

210 years ago, on March 21, 1806, Benito Juárez (Benito Pablo Juárez García), one of Mexico’s most renowned leaders, was born.  Ask any Mexican about Benito Juárez, and you may find them promptly reciting a well-known aphorism of his:  “… el respeto al derecho ajeno es la paz.”  The whole aphorism states:  “Entre los individuos, como entre las Naciones, el respeto al derecho ajeno es la paz,” which translated to English means: “Among individuals, as well as between Nations, respect for another’s right is [the key to] peace.”  These words were uttered soon after the defeat, trial and execution of Maximilian I. And it is this victory at the hands of Benito Juárez for which Cinco de Mayo (aka La Batalla de Puebla) is best known.  An additional legal element that links this lawyer and statesman to our blog post is the fact that the Federal Law of Administrative Procedure of Mexico provides for the commemoration of federal holidays.  According to the Accord issued on January 29, 2016, March 21, 2016 is a federal holiday where work will be suspended in commemoration of the birth of Benito Juárez.

As with many leaders and heroes, Juárez’s biography is fraught with moments where he overcame considerable odds. At an early age, he was orphaned.  But as with any epic hero, fate seemed to look kindly upon him.  Before starting elementary education, it is believed that he did not speak Spanish.  Instead, he spoke Zapotec and would have to learn Spanish as he received a formal Western education.

Below I would like to flesh out some of the most salient and epic moments in his history—among other facts, for those who are not Mexican—as it is certainly fitting when commemorating a figure such as Juárez. I have added to his timeline events from our American history, so that in their juxtaposition, we can get a better sense of the world of his time.

1806

On March 21, Benito Juárez was born to Marcelino Juárez and Brígida García in San Pablo, Guelatao, Oaxaca, Mexico.

1809

  • Orphaned at age 3, Juárez’s grandparents took custody of him; upon their deaths, his uncle, Bernardino Juárez, took him in and made him a shepherd.
  • On March 4, James Madison was inaugurated president. (The Library recently celebrated his 265th birthday.)

1810

On September 16, Fr. Miguel Hidalgo y Costilla became the pioneer of the Mexican Independence movement when he “waved a banner bearing the image of the Virgin of Guadalupe and proclaimed ‘Long live independence.  Death to the Spaniards.’”

1812

On June 18, The War of 1812 began.

1817

On March 4, James Monroe was inaugurated president.

1818

On December 17, Juárez left his uncle’s home, set out for Oaxaca City and ended up in the home of Genoese gentleman Antonio Maza Padilla (and his Mexican wife, Petra Parada Sigüenza) at whose house his sister, María Josefa Juárez García, was a maid.  It is also worth noting that at this point Juárez only spoke his native Zapotec language.  It is in this home where he met Margarita Eustaquia Maza Parada, who later became his wife–Da Margarita E. Maza Parada de Juárez.

1819

1820

On March 6, President James Monroe signed the Missouri Compromise.

1821

  • Agustín de Iturbide (Agustín I of Mexico) and Vicente Guerrero achieved Mexico’s Independence.
  • In October, Juárez entered the seminary, where he studied Latin, theology and philosophy—with a relatively limited educational background.

1823

On December 2, the Monroe Doctrine was declared, stating that the “American continents…are henceforth not to be considered as subjects for future colonization by any European powers.”

1824

On October 4, the Mexican Constitution of 1824 was issued.

1825

1827

On January 8, the Institute of Science and Arts of Oaxaca opened its doors, at which point Juárez enrolled.  (There are discrepancies on this milestone in the life of Juárez.  Some sources claim that he entered the priesthood; others claim he enrolled in law school.)

1829

On March 4, Andrew Jackson was inaugurated president.

1830

  • On May 28, President Jackson signed the Indian Removal Act.
  • On December 9, Benito Juárez graduated from the Institute of Science and Arts of Oaxaca.

1831

Benito Juárez began a legal practicum at the firm of Lic. Tiburcio Cañas. That same year, he was elected “regidor” (alderman) of the city of Oaxaca.

1833

1834

1836

Texas declared its Independence from Mexico.

1837

On March 4, Martin Van Buren was inaugurated president.

1839

The term “manifest destiny” was coined by John L. O’Sullivan.

1841

1843

On July 31, Juárez married Margarita Eustaquia Maza Parada, daughter of D. Antonio Maza Padilla.

1844

On December 4, Juárez was designated “fiscal del Tribunal Superior de Justicia del estado de Oaxaca” (state’s attorney of the Supreme Tribunal of Justice of the State of Oaxaca) by Antonio de León.

1845

1846

1848

On February 2, Mexican War concluded with the signing of the Treaty of Guadalupe Hidalgo.

1849

1850

The Compromise of 1850 was set forth.

1852

On March 20, Harriet Beecher Stowe’s novel, Uncle Tom’s Cabin was published.

1853

1855

  • On October 4, Juan Álvarez appointed Juárez to be Minister of Justice, Ecclesiastical Affairs and Public Education.
  • On November 23, Juárez Law (Law on the Administration of Justice and Organic Law of the Courts of the Nation of the District and Territories) was promulgated.

 1856

On June 25, Lerdo’s Law was issued, which aimed to reform and establish separation of church and state in Mexico. As a result, the Mexican Constitution of 1857 was promulgated on February 5th, and Pope Pious IX excommunicated any who swore allegiance to that constitution.

1857

  • On March 4, James Buchanan was inaugurated president.
  • On March 6, Dred Scott v. Sanford Supreme Court Decision was issued.
  • On May 23, Juárez was appointed by the new Mexican congress to preside over the Supreme Court of Justice of the Nation, which made him also the de facto vice-president of Mexico.
  • On September 16, Mexico’s new constitution entered into effect.

1859

On April 7, under the Buchanan administration, the United States recognized Benito Juárez as the legitimate Mexican head of state.

1860

  • On November 6, Abraham Lincoln was elected president.
  • On December 20, the secession convention adopted the ordinance for South Carolina to secede, while a separate “Declaration on the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” was adopted on December 24.

1861

1862

On May 5, the French were defeated at the Battle of Puebla (Cinco de Mayo).

1865

1867

1868

  • On February 24, President Andrew Johnson was impeached by the House of Representatives, and became the first seated president to be impeached.
  • July 28, 14th Amendment to the Constitution, which defines citizenship, was ratified.

1869

On March 4, Ulysses S. Grant was inaugurated president.

1870

  • On February 3, the 15th Amendment was ratified, granting African-American men the right to vote.
  • On October 22, Juárez survived a stroke.

1871

  • On January 2, his wife, Margarita Eustaquia Maza Parada de Juárez, died.
  • On October 12, Juárez was re-elected.

1872

On July 18, Juárez died after suffering a heart attack.

Categories: Research & Litigation

Manuscript Waste Bindings at the Library of Congress – Pic of the Week

In Custodia Legis - Fri, 03/18/2016 - 10:00am

In this week’s pic of the week post, we catch up with Library of Congress employee Dan Paterson, who is a senior rare book conservator in the Conservation Section of the Library’s Conservation Division. Since 2013, Dan has been surveying book bindings in the Library’s special collections, looking for bindings that incorporate manuscript waste. Manuscript waste is scraps of discarded handwritten medieval books. During the first couple centuries of printing, bookbinders often used manuscript waste to bind books, since it was more economical to recycle discarded vellum than to purchase new binding materials.  According to Dan, “manuscript waste was commonly used on the interior of book bindings as spine linings or fly leaves in Gothic style and later bindings. Eventually binders began to use manuscript waste on the exterior, covering books in vellum taken from dismembered texts.”

A handful of volumes from the Law Library’s rare books collection selected for the manuscript waste binding survey [Photo by Ken Sigmund]

Dan’s research began after he treated two volumes from the Rare Book and Special Collections Division that were bound in recycled manuscript waste. In the course of their treatment, he noticed that the two volumes had an unusual green degradation product on the vellum covers. He began his binding survey in order to determine whether the same product could be found throughout the Library’s collections on other volumes bound in manuscript waste. He also hoped to discover evidence for any discernible trends in early binders’ use of manuscript waste. Dan will present his findings in a talk at the Care and Conservation of Manuscripts Conference in Copenhagen, April 15th 2016.  The talk is entitled, “A Study of Two Vellum Manuscript Waste Bindings and a Survey of Similar Bindings in American Research Libraries.”

A close-up of the Law Library’s copy of Nova Practica Causarum Criminalium of Lodovico Carerio (Venice, 1550) [Photo by Ken Sigmund]

Of the 183 volumes so far examined, 26 are Law Library collection items. The images in this post depict some of those items, including my personal favorite (below): a later edition of Giovanni Francesco Balbo’s Tractatus de Praescriptionibus (Lyon, 1532), a treatise on property in Roman Law. What’s nice about this particular copy is that its boards are covered in a well-preserved vellum Hebrew manuscript which has been reversed in order to conceal the text. Nevertheless, the text is still faintly visible through the vellum so that by reading it in a mirror one can identify it as a fragment of a Torah scroll containing Leviticus 22:25-23:43.

The Law Library’s copy of Giovanni Francesco Balbo’s Tractatus de Praescriptionibus (Lyon, 1535). The binding is made from a scrap of a discarded Torah scroll containing text from Leviticus 22:25-23:43 [Photo by Ken Sigmund]

Categories: Research & Litigation

New Resource Covers the Laws of 157 Countries on the Extradition of Citizens

In Custodia Legis - Thu, 03/17/2016 - 10:00am

U.S. & Mexico, Treaty on Smuggling & Extradition, 12/23/25, Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/npcc.27375.

The Law Library of Congress has recently published a chart containing information on the terms that apply to the extradition of citizens in 157 jurisdictions around the globe. Of the countries surveyed, 60 were found to have laws that prevent the extradition of their own citizens, while the laws of 31 other countries generally allow such requests.

In the remaining 66 countries it appears that the extradition of a citizen may be approved in certain circumstances. For example, many require that such an extradition be provided for in a bilateral treaty with the requesting country or in an international convention signed by the countries. Other requirements may apply in different countries, or they may have a provision that simply allows a government minister to refuse the extradition of a citizen.

Where an extradition request involves two European Union (EU) Member States, these countries usually apply the Council Framework Decision on the European Arrest Warrant (EAW Decision), subject to additional domestic rules. According to the EAW Decision,

where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. (EAW Decision, art. 5(3).)

A requirement to return an extradited person to his or her home country for the execution of any prison sentence applies in Belgium, France, Germany, the Netherlands, Romania, and Spain, as well as in Israel.

Other examples of conditions for the extradition of a citizen include a requirement that the person have resided for a period of time in the requesting country and that a minimum period of imprisonment could be imposed by a court in the requested country for a similar offense. These conditions apply in Denmark.

John Surratt, accused Lincoln assassination conspirator (1867). (Surratt was in the Papal Guard in Italy before his extradition to the United States.) Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/cwpbh.00483

In Turkey, there is a requirement that the extradition be based on the country’s obligations arising from its membership in the International Criminal Court. The law of Cabo Verde provides that the request must relate to the extraditable offenses of terrorism and international organized crime.

New Zealand can refuse the extradition of one of its citizens if it would not be in the interests of justice.

We decided not to specifically address laws that allow countries to refuse to extradite persons for political crimes or to countries that impose capital punishment. Such restrictions apply in many countries regardless of whether the requested person is a citizen or a foreigner.

For specific information on the extradition laws of the countries surveyed, we recommend reviewing the chart. In addition to a brief explanation of the relevant laws, the chart includes citations and links to many legal sources. We will also soon be adding a map to act as a visual aid for the chart.  We hope that you will find these resources, and the many other legal research reports published on the Law Library’s website, useful.

Categories: Research & Litigation

A Founding Father is Born on March 16, 1751

In Custodia Legis - Wed, 03/16/2016 - 9:30am

Today the Library of Congress is commemorating the 265th anniversary of James Madison’s birth. Madison, the fourth president of the United States, was born on March 16, 1751 in the Colony of Virginia.

James Madison. Photo Credit: Library of Congress Prints and Photographs Division

The Library’s James Madison Memorial Building serves as the national memorial to James Madison. The building was approved by an act of Congress on October 19, 1965 and contains Madison Memorial Hall, which the James Madison Memorial Commission recommended to Congress to honor Madison’s achievements as a historian, political scientist and statesman. The centerpiece of the memorial is a statue of young Madison holding in his right hand volume 83 of the Encyclopédie Méthodique, which was published in Paris between 1782 and 1832. Ten quotations by Madison adorn the outside walls of the James Madison Memorial Building including;

KNOWLEDGE WILL FOREVER GOVERN IGNORANCE: AND A PEOPLE WHO MEAN TO BE THEIR OWN GOVERNOURS, MUST ARM THEMSELVES WITH THE POWER WHICH KNOWLEDGE GIVES.
Madison to W.T. Barry, August 4, 1822

Madison is known as the “father” of the United States Constitution and the Bill of Rights for his contribution to these documents. As the primary drafter of the Virginia Plan, which was introduced at the Constitutional Convention, Madison proposed a government based on a balance between the executive, legislative and judicial branches with the legislative branch separated into two chambers.  Madison also served as a recorder at the 1787 Constitutional Convention. Later he co-authored the Federalist Papers with Alexander Hamilton and John Jay to urge New Yorkers to ratify the constitution.

Many are aware of Madison’s contribution to the United States Constitution, but may not know that Madison was also a man of books. In fact, he was one of the first people who recommended the establishment of a library for Congress as a member of the Continental Congress in 1783. Then in 1815 while president, he supported his friend Thomas Jefferson’s offer to sell his personal collection of books to rebuild the Library after British troops destroyed the original Library in August 1814. Like Jefferson, Madison was an avid reader and he had his own extensive personal collection of books.

We encourage our readers to learn more about James Madison. The Library of Congress holds the James Madison’s Papers from 1723-1859. The collection contains correspondence, personal notes, draft letters and legislation, an autobiography, legal and financial documents, and his notes on the 1787 Constitutional Convention. The Library also offers a resource guide of the Madison Papers for teachers.

Categories: Research & Litigation

Compiling a Federal Legislative History: A Beginner’s Guide

In Custodia Legis - Tue, 03/15/2016 - 9:36am

This post is coauthored by Barbara Bavis and Robert Brammer, senior legal reference specialists.

Compiling a federal legislative history may seem intimidating at first glance, but it does not have to be. In this Beginner’s Guide, we revisit previous posts to create a comprehensive research guide that you can use to compile your own federal legislative history.

Dorothy Thompson, columnist, sat down before Foreign Affairs Chairman Key Pittman and told him and members that neutrality laws should be repealed to allow the country to be free in forming policies in foreign affairs. Photograph by Harris and Ewing. (1939). Library of Congress Prints and Photographs Division http://hdl.loc.gov/loc.pnp/hec.26561

When you begin your legislative history research, the first thing you should ask yourself is whether you need to compile your own federal legislative history. In several cases, someone might have already done the work for you, and compiled a legislative history report. In Locating a Compiled Federal Legislative History: A Beginner’s Guide, we list sources where you may be able to find these pre-compiled legislative history reports in print or online.

If you were not able to find a pre-compiled legislative history report, now you have to roll up your sleeves and compile your own. To begin, you have to use the information you already have about the legislation of interest to lead you to other important citation information.  If you are beginning with a U.S. Code citation, you will want to use our How to Trace Federal Legislation – A Research Guide post to find the public law numbers, U.S. Statutes at Large citations, and bill information for both the legislation that gave rise to that section of the U.S. Code and any legislation that amended it.

Once you have this citation information, you will want to use it to find the legislative history documents that will make up your own legislative history report. We strongly suggest using our recent Beginner’s Guides to complete your research, including:

Keep in mind, when using legislative history documents in court, that judges are not of one mind as to the weight they give a legislative history document. Some judges believe these documents are invaluable in cases where the legislation is not necessarily clear from its text, while others believe these documents are at best an imperfect representation of the legislative intent.[1]

We hope this guide has been helpful. If you have any questions, please contact us through Ask A Librarian.

 

[1] Several legal scholars have examined the treatment of legislative history by judges. For a deeper discussion of these opposing views, see, e.g., Edward Heath, How Federal Judges Use Legislative History; Essay, 25 J. of Legis. 95 (1999), available at http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1196&context=jleg.

 

Categories: Research & Litigation

Legal Challenges for Uber in the European Union and in Germany

In Custodia Legis - Mon, 03/14/2016 - 9:13am

The following is a guest post by Jenny Gesley, a foreign law specialist covering Germany and other German-speaking jurisdictions at the Law Library of Congress.  Jenny has contributed several posts to this blog, including posts on the Regulation of Electronic Cigarettes in Germany, constitutional challenges related to the privatization of air traffic control in Germany, and the Greek debt crisis.

To “Uber” is now a verb. This development reflects the rapid expansion of the mobile ride-hailing company Uber in the United States and the rest of the world. However, in many European jurisdictions, and particularly in Germany, Uber has run into regulatory roadblocks.

Uber offers “a technology platform that enables users of Uber’s mobile applications or websites provided as part of the Services to arrange and schedule transportation and/or logistics services with third party providers of such services… .” The customer registers for a user account with Uber and payment of the services is made through Uber to the third party providing the services. (Terms & Conditions, nos. 3, 4, para. 1.) Every user of the services has the opportunity to rate the experience and leave additional feedback. (Id. no. 4, para. 4.)

In the United States, around fifty lawsuits were filed against Uber in U.S. Federal Courts in 2015 alone, but Uber is still operating in every major U.S. city. However, in Europe, the service has been banned in several countries or cities as a result of lawsuits in France, Germany, Belgium, and Spain, and accordingly suspended all or some of their services in these countries. In response, Uber has filed complaints with the European Commission against France, Germany, and Spain alleging that they are in violation of article 49 (freedom of establishment) and article 56 (freedom to provide services) of the Treaty on the Functioning of the European Union (TFEU).

Uber’s legal issues stem from the difficulty in defining what kinds of services Uber offers and what kind of relationship exists between Uber and its customers. While Uber claims that it only provides a digital platform for third party drivers, various European courts have taken a different view.

London anti-Uber taxi protest. (Photo by Flickr user David Holt, Jun. 11, 2014. Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

The Situation in the U.S. – Transportation Network Company

Uber Technologies Inc., which is headquartered in San Francisco, California, is classified as a “transportation network company” by the California Public Utilities Commission (CPUC). The CPUC defines “transportation network companies (TNCs)” as companies that ”provide prearranged transportation services for compensation using an online-enabled application or platform (such as smart phone apps) to connect drivers using their personal vehicles with passengers.” All TNCs need to apply for a permit with the CPUC. The most recent permit for Rasier LLC, a subsidiary of Uber, was approved in August 2015. The requirements for TNCs to operate alongside taxis in other US states vary a lot.

The Situation in the EU – Information Society Service or Transport Operator

The situation in the European Union (EU) is less clear. The service can either be qualified as a digital service provider, called an “information society service” in the applicable EU directive, or as a transport operator. Information society services are regulated by the EU and benefit from the freedom of establishment for service providers and the free movement of services as provided for in the Services Directive 2006/123/EC and the TFEU, whereas transport operation is regulated by the EU Member States. (Services Directive, recital 21.) “Information society services” are defined as “any services normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.” (Id. art. 2(a).)

Two developments are important in this regard. First, a Spanish Court has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) (Asociación Profesional Elite Taxi, Case C-434/15) and referred four questions, asking the court to define what kind of services Uber provides.

In particular, the court asked the CJEU:

  1. If the services Uber provides can be qualified as merely a transport service or if it must be considered to be an electronic intermediary service or an information society service?
  2. If Uber’s services can be qualified as “information society services,” should it benefit from the freedom to provide services guaranteed by Article 56 TFEU and the Services Directive 2006/123/EC and the E-Commerce Directive 2000/31/EC?
  3. Is Uber’s alleged breach of Spain’s unfair competition law contrary to Article 9 of the Services Directive, which governs “authorization schemes” and which states that an authorization, licensing or permits regime cannot be restrictive or disproportionate, and cannot unreasonably hinder the principle of freedom of establishment?
  4. If Uber is to be considered as an information society service, are the restrictions Spain is currently imposing on Uber allowed, taking into account the freedom to provide information society services expressed by Article 3 of the E-Commerce Directive?

A decision of the CJEU is not expected until fall 2016.

In addition, the EU Commission is currently launching studies to analyze the markets for taxis and hire-car-with-driver services in Member States as well as a separate explanatory study on consumer issues in certain online peer-to-peer markets, including the sharing of private transport. The results of the studies will determine whether regulatory action at an EU level will be required.

The Situation in Germany – Intermediary or Professional

As a reaction to several law suits in Germany, the only services Uber B.V. (Uber’s European subsidiary, headquartered in the Netherlands) currently offers are transport services provided by licensed independent professional drivers through its services UberX and UberBLACK, the luxury hire-car service, as well as standard taxi services through UberTaxi. The only German cities in which Uber operates are Berlin and Munich. The service UberPOP, which used private non-licensed drivers with their own vehicles, was discontinued in all of Germany.

Taxis in Berlin, Germany waiting at a designated taxi spot. (Photo by Flickr user Till Krech, Nov. 17, 2006.) Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

Applicable German Law

In Germany, all transportation of persons with motor vehicles, trolleybuses, and trams for remuneration or in the framework of the economic activity of an enterprise is subject to the Passenger Transport Act. (Passenger Transport Act (Personenbeförderungsgesetz (PBefG)), § 1, para. 1, sentence 1.) If the regular or occasional transport of persons with motor vehicles falls under section 1, it requires a permit. (Id. § 2, para. 1, sentence 1.) An exception to the applicability of the Passenger Transport Act exists, if the price of the ride does not exceed the operating costs or if it is offered for free. (Id. § 47, para. 1.)

The Passenger Transport Act provides additional requirements for the occasional transport of persons, which is defined as transport according to the customer’s specific requirements. (Id. §§ 46, para. 1, 42.) Section 46, paragraph 2 states that only taxis (id. § 47), excursion and long distance trip organizers (id. § 48), and cars or buses-for-hire (id. § 49) are allowed to carry out the occasional transport of persons. Transportation with taxis is defined as “transportation of persons with motor vehicles which the professional makes available at publicly designated locations and with which the transport of a passenger to a specific location is performed.” Taxi drivers are obligated to accept a ride assignment within their assigned zones. (Id. § 49, para. 4.) Prices for the ride are fixed by regulation. (Id. § 51.)

Transport with cars-for-hire is defined as “transport of persons with motor vehicles which can only be hired as a whole and with which the professional conducts rides in which the purpose, destination, and course are determined by the passenger and which cannot be qualified as transport with taxis.” Cars-for-hire may only accept assignments which were received at the place of business of the professional and have to return to the place of business after the conclusion of the ride. (Id. § 49, para. 4).

The questions that German courts, both civil and administrative, were asked to consider were whether Uber’s services can be authorized under the Passenger Transport Act as occasional transport of persons and, if yes, whether Uber acts merely as an intermediary between the customer and the driver or if Uber itself can be qualified as a professional offering the services.

Civil Court Proceedings

In Berlin, a taxi driver sued Uber in civil court alleging that its business model UberBLACK violated German competition law, because drivers were encouraged to make themselves available outside of the place of business without responding to a concrete assignment. In April 2014, the Higher District Court of Berlin granted a preliminary injunction against Uber. (LG Berlin, docket no. 15 O 43/14.) Uber appealed the ruling and the appeals court overturned the measure, because the plaintiff had not enforced the injunction. (KG Berlin, docket no. 5 U 63/14.)

In February 2015, however, the Berlin Higher Regional Court held in the main proceedings that the UberBLACK business model did indeed violate German competition law and issued a prohibition order against the company in Berlin. (LG Berlin, February 2015, main proceedings, docket no. 101 O 125/14.) The appeal by Uber was unsuccessful. (KG Berlin, December 11, 2015, appeal, docket no. 5 U 31/15.)

In August 2014, another civil suit commenced at the Higher Regional Court of Frankfurt am Main alleging that the service UberPOP violated German competition law, because the drivers were not licensed for passenger transportation as required by section 2 of the Passenger Transport Act. The Court granted the preliminary injunction initially (LG Frankfurt am Main, docket no. 2-03 O 329/14), but revoked it later due to formal reasons (LG Frankfurt, docket no. 2-03 O 329/14).

In the main proceedings at the Higher Regional Court of Frankfurt am Main, which took place in March 2015, the Court ruled against Uber and issued a Germany-wide ban on the service UberPOP. (LG Frankfurt, docket no. 3-08 O 136/14.)

Following the effective entry of the judgment of the Higher Regional Court of Frankfurt am Main, Uber initially lowered its price to 35 cents per kilometer, the cost of operation, to take advantage of the exception of the Passenger Transport Act, before abolishing the service UberPOP completely.

EU building, Brussels. (Photo by Flickr user David Kenny, Jan. 9, 2008) Used under Creative Commons license, https://creativecommons.org/licenses/by-nc-nd/2.0/.

Administrative Court Proceedings

The cities of Hamburg and Berlin also issued administrative decisions prohibiting Uber from offering services through its app, UberPOP. Berlin additionally prohibited the service UberBLACK. The cities argued that the services were not permissible according to the requirements of the Passenger Transport Act, because the UberPOP drivers did not have a permit and the UberBLACK drivers did not receive their assignments at the place of business of Uber and/or return to the place of business after the conclusion of a ride.

The Higher Administrative Court of Hamburg upheld the city’s decision (OVG Hamburg, order of September 24, 2014, docket no. 3 Bs 175/14), as did the Higher Regional Court of Berlin-Brandenburg (OVG Berlin-Brandenburg, docket no. OVG 1 S 96.14). The Federal Constitutional Court declined to hear the Hamburg case. (Bundesverfassungsgericht [BVerfG], order of November 13, 2014, docket no. 1 BvR 2861/14.)

Both courts ruled that Uber does not act merely as an intermediary between the driver and the consumer, but presents itself as a professional to the consumer. According to the courts, Uber concludes the contract with the consumer and handles the payment since payment to the driver directly is prohibited by Uber’s terms and conditions. Furthermore, the courts found that Uber contracts with the drivers; it sets the prices for the ride, and coordinates the assignments via its app, UberPOP. They held that the clause in Uber’s terms and conditions providing that it merely acts as an intermediary was irrelevant in light of the facts. (OVG Hamburg, para. 14; OVG Berlin-Brandenburg, para. 28-32.)

Reactions to the EU Bans

The Vice-President of the European Commission, Neelie Kroes, declared that she was “outraged” at the decision of a Belgian court to ban Uber. She added that “[s]lamming the door in Uber’s face doesn’t solve anything. It sends a bad anti-tech message about Brussels, which is already in the 4G dark ages. People in Brussels are modern and open, they should have a chance to use modern and open services!”

Uber is hoping for support from the EU in its fight with European regulators. The company was quoted by the BBC as saying that the Frankfurt Court’s decision represented a “fundamental infringement of our ability under European law to establish and provide a service.” In February 2016, Uber, together with AirBnB and other share economy companies, sent an open letter to the Netherlands Presidency of the Council of the EU and called on the EU Member States to “continue to seek to ensure that local and national laws do not unnecessarily limit the development of the collaborative economy to the detriment of Europeans.”

Categories: Research & Litigation

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