The Online Resource for Massachusetts Poverty Law Advocates

Research & Litigation

The Library of the French National Assembly – Pic of the Week

In Custodia Legis - Fri, 01/18/2019 - 10:00am

The following is a guest post from Nicolas Boring, foreign law specialist covering French speaking jurisdictions at the Law Library of Congress.

During my most recent trip to France, I was fortunate enough to have the opportunity to visit the National Assembly, one of the two houses of the French Parliament. The National Assembly is located in the heart of Paris, just across the river Seine from the famous Place de la Concorde and the Jardin des Tuileries. The building was originally built in the early 18th century as a palace for the Duchess of Bourbon, and it is still referred to as the Palais Bourbon (Bourbon Palace).

Of particular interest to me was the National Assembly’s beautiful library, which is where I took these pictures. The library was created by a law (Loi portant établissement d’une bibliothèque à l’usage du Corps législatif) adopted in 1796, during the Directory period of the French Revolution. However, the physical space in which the library sits today was built in 1834 on a former courtyard and garden of the Bourbon Palace. The reading room, which is 42 meters (138 feet) long, 10 meters (33 feet) wide, and 15 meters (49 feet) high, contains about 60,000 books on its shelves. The painter Eugène Delacroix was tasked with decorating the library. The paintings on the ceiling are by him.

Library of the French National Assembly. Photo by Nicolas Boring.

Library of the French National Assembly. Photo by Nicolas Boring.

 

 

 

 

 

 

 

 

 

 

 

 

 

One of the more surprising items on display in the reading room was a bust of Abraham Lincoln. The small plaque beneath it indicates that it was given to the French people by the Lincoln Sesquicentennial Commission on behalf of the American people in 1959, to commemorate both the 150th birthday of Abraham Lincoln and the 75th anniversary of France’s gift of the Statue of Liberty to the United States. The plaque further states that the bust was modeled by Leonard Wells Volk during President Lincoln’s lifetime in 1860. A little bit of digging on the internet revealed that there is another copy of this bust at the Metropolitan Museum of Art in New York.

Bust of Abraham Lincoln. Photo by Nicolas Boring.

Categories: Research & Litigation

Intern Stephanie Crespo Méndez Discusses Her Work with Rare Hispanic Legal Documents

In Custodia Legis - Thu, 01/17/2019 - 9:58am

The following is a guest post by Stephanie Crespo Méndez, an Intern with the Digital Resources Division of the Law Library of Congress.

During my time as a Hispanic Association of Colleges and Universities National Internship Program (HACU HNIP) intern at the Law Library this fall, I was granted the opportunity to work with the Spanish Legal Documents collection and the Miscellaneous Hispanic Documents collection. The Spanish Legal Document collection, which I spent most of my internship working on, contains microfilmed, print, and manuscript documents from Spain. They originate from the 15th through the 19th centuries, and are in Spanish, Catalán, Galician, Latin, Italian and French. Royal decrees, papal bulls, legal opinions, judgments and royal orders are among the large variety of statutes contained in this collection.

My work on this collection began with the creation of PDF derivatives that represent the individual documents that will be made accessible to the public. Mostly I  reviewed and created metadata for the collection, which meant I identified specific information about the documents, like language, jurisdiction, and date, to assist cataloging. It was challenging, but my knowledge of Spanish and Latin enabled me to interpret the documents and advance the project. This project resulted in the creation of almost 2,500 unique documents and over 12,500 metadata elements.

After working with the Spanish Legal Documents collection, I worked on the Miscellaneous Hispanic Documents collection, which consists of mostly manuscripts from 15th – 19th centuries and from throughout Latin America.  In this project, I came across 66 documents that originated from Puerto Rico, from around 1812. Most of them had been signed by the governor of Puerto Rico at the time, Salvador Meléndez Bruna. The documents range from ordinances and other local statutes to orders directly from Spain. They all seemed to be copies sent to the municipality of Cabo Rojo, a city on the southwest corner of the island.

I was very excited when I made this discovery since the documents came from my homeland and were addressed to a municipality that is merely 30 minutes away from my home. Reading about the way the island was governed from a primary source, such as this, was a surreal experience most people do not get to have. Knowing I was working with papers that were in Governor Meléndez’s hands at some point in history was incredible.  It is an experience I will always cherish.

As I read through the documents, I found a lot of interesting things. I recall reading one of them that was based on awarding unoccupied lands to families for them to use for dwelling and crop cultivation. I also found one that referred to the collection of taxes, and it specifically mentioned the cities of Mayagüez (which is home to the University of Puerto Rico – Mayagüez, where I am currently pursuing a bachelor’s degree), Aguadilla, and Ponce. The collection also includes documents about education, and how land should be divided between agriculture and livestock.

The most interesting document I found was an eight-page booklet dating back to July 27, 1813.  It specified certain laws that had to be observed for the foundation of a city in Puerto Rico to take place.  At the time, Puerto Rico was a Spanish colony. Each law had a brief description as well as a more in-depth explanation. There were laws for everything, from choosing viable locations for the foundation of a city to dividing the land for families that planned on settling in them. According to some of the laws in the booklet, the city had to be near a river for easy access to water, near a main port, and there could not be any building closer than 300 steps from the walls that protected the city. Discoveries like these were some of the most exciting parts of my internship, and I can’t wait to see what other documents may surface later once the project is completed.

Pages from booklet that specifies certain laws that had to be complied with for the foundation of a city in Puerto Rico in July 27, 1813; Miscellaneous Hispanic Documents. Photo by Stephanie Crespo Méndez.

Royal Order authorizing the religious order of San Agustín not to lodge soldiers in its monasteries [Ca. 1703]; Spanish Legal Documents. Photo by Stephanie Crespo Méndez.

Categories: Research & Litigation

An Interview with Abigail Grotke, Web Archiving Team Lead

In Custodia Legis - Wed, 01/16/2019 - 11:42am

This week’s interview is with Abbie Grotke.  She is the web archiving team lead here at the Library of Congress.  I have worked with Abbie on a variety of archive collections, including the Legal Blawgs and U.S. Congressional web archives.

Describe your background.

I’m an all-over-the-East Coast gal. Born in Upstate/central New York, near the Finger Lakes, I’ve spent a lot of time in Buffalo with my father’s family but spent my formative years in Florida. I left as soon as I could (I missed seasons!), heading back north to go to school in North Carolina and then Massachusetts. I landed in the D.C. area in 1991 when I got an internship at the Smithsonian Institution’s National Museum of American Art (then NMAA, now Smithsonian American Art Museum).

Abbie Grotke / Photo by Shawn Miller

What is your academic/professional history?

My undergrad degree was in Art History, so while interning in a few offices at NMAA, I applied to work at the museum full-time and had a number of interesting jobs there: from cataloging sculpture for the Inventory of American Sculpture, to helping produce art books and a CD-ROM in the Publications and New Media Office. That taught me some skills that helped me qualify for a job I saw advertised in 1997 looking for people who could help “build the information superhighway through the Library of Congress!”

As a digital conversion specialist position with American Memory, I worked to help digitize the Printed Ephemera collection and led the Hannah Arendt Papers digitization project. I was hired on permanently after the American Memory “not to exceed the year 2000” positions expired. After working a year or so on a collaborative digital reference project that became LC’s Ask-A-Librarian service, I was assigned to work with the web archiving pilot project team – called MINERVA at the time — in 2002, and I’ve been web archiving ever since!

How would you describe your job to other people?

“I archive the internet” usually gets attention at parties. The longer answer is that I am the Web Archiving Team Lead for the Library’s web archiving program. Web archiving is the process by which we use special tools to make copies of web content for preservation and access by future researchers. We preserve a variety of content published to the web — not just websites, but also individual documents, video, audio, images, social media, etc. The Library of Congress web archives are organized in thematic and event-based collections, and contain websites documenting a variety of U.S. and international organizations representing a broad range of subjects and topic areas, such as the Law Library’s ongoing Legal Blawgs Web Archive, United States Congressional Web Archive, and Federal Courts Web Archive.

While I do not personally select the content the Library archives (recommending officers from the Law Library and Library Services do), I serve in a program management role, overseeing the activities of our most excellent team of four staff in Library Services. We make sure the content the recommending officers have identified for the collections is archived (as best as we can with the tools we have), stored for long-term preservation, and is made available for research use. In this role, I also get to work with a number of web archiving colleagues around the United States and the globe through groups like the International Internet Preservation Consortium, and the End of Term Web Archive collaborative project. Every day is a bit different with web archiving, which makes it exciting.

Why did you want to work at the Library of Congress?

When I first saw the Library job posting, I was so excited that my Standard Generalized Markup Language (SGML) skills could be put to use somewhere, anywhere – I knew I had to apply. When I learned more about the exciting digital library work that was happening here (these were the very early days of digital conversion projects), I was hooked! It continues to be such a great place to work — I still love being involved in figuring things out and solving problems we didn’t know we’d even have a few years or even days before. We certainly still don’t have all of the answers! I’ve also met some lifelong friends here and so many people have incredible knowledge and interesting hobbies.

What is the most interesting fact you’ve learned about the Law Library?

Not so much about the Law Library, but here’s an interesting fact about the kind of content the Law Library has selected for archiving:

The long-time collecting of legal blawgs and Congressional websites have also been excellent case studies and practical examples for us web archivists in how to document the transition of web content from one domain to another over time. For example, the Massachusetts Law Updates blog has changed URLs three times since we began crawling it in 2007 for the Law Library. Domain name changes like this have led us to reconsider ways in which we track and manage the archiving process, and effectively provide access for researchers to link these sites together. This example of a Committee site from the Congressional Web Archive shows the change in how the House of Representatives registered their URLs — they went from house.gov/[committee or member name] to [committee or member name].house.gov.  While many of the old URLs continued to redirect, we wanted to ensure our records were updated to link these two URLs together in perpetuity.

What’s something most of your co-workers do not know about you?

Some of my coworkers that have known me a while know this, but perhaps not my Law Library colleagues – my alter ego is Miss Abigail, an advice columnist with a massive classic advice book collection. I wrote a book called Miss Abigail’s Guide to Dating, Mating, and Marriage which led to a 2010 Off-Broadway play written by Ken Davenport and Sarah Saltzberg. It even played in Prague for a while! Now regional theaters around the country sometimes put it on — most recently Paige Davis starred as Miss Abigail in a production in Pittsburgh, which I got to see last year, much to my delight.

Categories: Research & Litigation

The Library of Congress Welcomes the 116th Congress – Pic of the Week

In Custodia Legis - Fri, 01/11/2019 - 9:06am

Last week the 116th Congress was sworn in.  We were busy working to prepare Congress.gov to include all the members.

If you happen to visit the House Office Buildings, you might see this image on the screens sharing the Library of Congress welcome for the 116th Congress.

The Library of Congress Welcomes the 116th Congress

If you are interested, you can read the Congressional Research Service Reports that we have added to Congress.gov.

If you are new to Congress.gov, we have nine legislative process videos to help give an overview of how Congress works.  If you have specific legislation or a member that you would like to follow, create an account and select “Get alerts” from below the title of the legislation or member name.

These are just a few of the ways that the Law Library and the Library of Congress are here to serve Congress.

Categories: Research & Litigation

Finding the Influence of Thomas Jefferson in an Antebellum Ruin in Barboursville, Virginia

In Custodia Legis - Thu, 01/10/2019 - 8:53am

You are looking at the ruins of James Barbour’s mansion, which was completed in 1822 and destroyed by fire on Christmas Day in 1884. James Barbour enjoyed an impressive career, serving as a member in the Virginia House of Delegates, the 18th Governor of Virginia, a U.S. Senator, the U.S. Secretary of War, and the U.S. Minister to England, but he was particularly proud of his work drafting the bill establishing the Literary Fund of Virginia (see page 23), which provided some funding for public education in Virginia.

The Barboursville ruins in Barboursville, VA. Photograph by Robert Brammer.

You may notice some similarities between the design of this home, called Barboursville, and Thomas Jefferson’s Monticello. In particular, you may notice a drawing room in the shape of an octagon. Jefferson’s Monticello features a similar parlor, and this is not a coincidence, since this home was designed for James Barbour by Thomas Jefferson. The ruins of Barboursville occupy land owned by a winery in Barboursville, Virginia, and can be visited whenever the winery is open.

The Barboursville ruins in Barboursville, VA. Photograph by Robert Brammer.

The interior of the Barboursville ruins in Barboursville, VA. Photograph by Robert Brammer.

Categories: Research & Litigation

Japanese Criminal Legal System as Seen Through the Carlos Ghosn Case

In Custodia Legis - Wed, 01/09/2019 - 2:26pm

The following is a guest post by Sayuri Umeda, a senior foreign law specialist who covers Japan and various other countries in East and Southeast Asia. Sayuri has previously written posts for In Custodia Legis on various topics, including Disciplining Judges for “Bad Tweets”, Engagement under Japanese Law and Imperial House RulesIs the Sound of Children Actually Noise?How to Boost your Medal Count in the Olympics, South Korean-StyleTwo Koreas Separated by Demilitarized Zone, and many more.

According to a news article’s headline, former Nissan chairman Carlos Ghosn’s arrest in Japan on November 19, 2018 shocked the auto industry. As Ghosn has been detained in Tokyo for several weeks, the Japanese criminal legal system has been discussed and criticized by Western media.  This post describes Japanese law concerning detention and interrogation.

  1. Arrest and Detention

Mr. Ghosn was arrested on charges of financial misconduct on November 19, 2018.  A brochure of the Supreme Court of Japan, Outline of Criminal Justice in Japan 2016, briefly explains the Japanese criminal justice system.  The Constitution of Japan (1946) requires the issuance of a judicial warrant specifying the alleged offense as a condition for an arrest. (Constitution art. 33.)  Under article 199 of the Japanese Criminal Procedure Code (CPC), “sufficient probable cause to suspect that an offense has been committed by a suspect” is also required for an arrest.  When a prosecutor arrests a person, the prosecutor must “immediately inform the suspect of the essential facts of the suspected crime and the fact that the suspect may appoint defense counsel.” (CPC art. 204.)

Nissan Prince Royal [old Imperial Household limousine] (Front) (2009); By Coptic Light – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=54397203

Mr. Ghosn was taken to a detention center after the arrest.  On November 21, 2018, in response to the prosecutors’ request, the Tokyo District Court ordered Mr. Ghosn’s detention for ten days.  The CPC states that, if necessary for the investigation before filing charges, the prosecutor may request a judge to detain the suspect within 48 hours from his or her physical restraint for a period of ten days. (Id. arts.207 & 208, para. 1.)

Mr. Ghosn’s detention was extended for ten days on November 30, 2018.  When a prosecutor requests extension of the detention to a judge, and “when a judge deems unavoidable circumstances exist, the judge may extend the period” up to ten additional days. (Id. art. 208, para. 2.)

Mr. Ghosn was formally charged with financial misconduct on December 10, 2018.  At the same time, the prosecutors arrested Mr. Ghosn, again, for underreporting his income and requested that he be detained based on the new allegation.  The judge approved the new detention on December 11, 2018.

The prosecutors requested extension of the second detention, but the judge “unexpectedly turned down” the request on December 20, 2018.  Then, prosecutors arrested Mr. Ghosn for aggravated breach of trust  under the Companies Law on December 21, 2018.  According to Japanese media, prosecutors planned to arrest him for this charge when the extended detention expired.  However, after the extension of detention had been turned down, they had to arrest him earlier than planned to keep detaining Mr. Ghosn in order to prevent him from contacting his former subordinates and influencing them.  The court allowed the detention for the new charge for ten days on December 23, 2018. The detention was further extended for ten additional days on December 31, 2018.  There was no break between the three detentions.

  1. Bail

After the likely additional indictment on January 11, 2019 and the expiration of the third detention period, Mr. Ghosn would possibly not be immediately released because a court can detain a defendant if there is probable cause to suspect that the defendant may flee or conceal evidence. (CPC art. 60.)  When a suspect is indicted while being detained, the detention automatically continues. (Jokai Keiji Soshoho [Commentaries on Articles of CPC], at 567 (Koya Matsuo ed., 2016).)

When the grounds or necessity for detention no longer exists, the court must rescind the detention upon request or by virtue of office. (CPC art. 87.)  The defendant, his/her lawyer or family member can request the court that the defendant be released on bail. (CPC art. 88.)  Bail must be granted unless there is probable cause to suspect that the defendant may conceal or destroy evidence, or under other specified circumstances. (CPC art. 89.)

  1. Interrogation

The way interrogation is conducted in Japan is different as compared with the U.S.  In Japan a public prosecutor may interrogate a suspect, and when the suspect is under detention, he/she cannot refuse to appear or withdraw from the interrogation room. (CPC art. 198, para. 1; see also sec. 3 of summary of 1993 (O) 1189 (S. Ct., Mar. 24, 1999),)

The Constitution states: “[N]o person shall be compelled to testify against himself.” (Constitution art. 38, para. 1.)  The CPC further provides  that  “[t]he suspect must, in advance, be notified that he/she is not required to make a statement against his/her will.” (CPC art. 198, para. 2.)   While in the U.S., after a suspect invokes the right to remain silent, investigators must stop asking questions, in Japan investigators can keep asking questions. (Summary of 1993 (O) 1189, supra.)

There is no clear limit on time and duration of interrogation by prosecutors.  The police officers are subject to a regulation that states that investigators must avoid long time or late night investigation unless there is a compelling reason to do so. (Crime Investigation Standards, National Public Safety Commission (NPSC) Regulation No. 2 of 1957, amended by NPSC Regulation No. 11 of 2018, art. 168, para. 3 (in Japanese).)  Another NPSC regulation restricts interrogation between 10PM and 5AM and interrogation for more than eight hours per day in the absence of advanced approval. (Regulation on Supervision for Appropriate Interrogation, NPSC Regulation No. 4 of 2008, art. 3, para. 2 (in Japanese).) These are regulations for police officers, not for prosecutors. However, if the interrogation is prolonged, the accused can argue that his or her confession, made after unacceptably long interrogation, is a forced confession that is prohibited by the Constitution, and is inadmissible. (Constitution art. 38, para. 2.)

The Constitution states that “[a]t all times the accused shall have the assistance of competent counsel.” (Constitution art. 37, para. 3.)  However, this does not mean that his/her attorney can be present in the interrogation room.  Investigators usually do not allow attorneys’ presence during interrogation of detained suspects. (Ministry of Justice, Material for Anti-Monopoly Act Examination Procedure Discussion (4th) (2014) (in Japanese)).

In Japan, a written statement of a suspect during interrogation is not written by the suspect, but the investigator. (CPC art. 198, para. 3.)  The suspect can inspect the statement or the investigator reads it to the suspect for verification. (Id. art. 198, para. 4.)  The investigator asks the suspect to attach his/her signature and seal to it if the suspect affirms correctness of its contents.  The suspect can refuse to do so. (Id. art. 198, para. 5.)  The statement is written in Japanese, and even if the suspect cannot read it, if he/she agrees to its correctness through a translator, the investigator would ask the suspect for his signature and seal it. (Criminal Cases in Japan – Q&A, Nakamura International Criminal Defense LPC).

Different model?

As explained above, the criminal investigation systems in Japan and the U.S. are different.  In response to criticisms by foreign reporters at a press conference on November 29, 2018, Shin Kukimoto, the deputy head of the Tokyo prosecutor’s office stated: “I do not criticize other countries’ systems just because they are different.” For an article explaining the difference of models of criminal justice systems of Japan and other countries see Daniel H. Foote, The Benevolent Paternalism of Japanese Criminal Justice, 80 Calif. L. Rev. 317 (1992).

Categories: Research & Litigation

Published Works Enter the Public Domain in the United States for First Time in Twenty Years

In Custodia Legis - Mon, 01/07/2019 - 2:06pm

The following is a repost from the Copyright Office blog, Creativity at Work. This is a guest post by Anandashankar Mazumdar, outreach and education specialist in the Office of Public Information and Education.

New Year’s Day 2019 was a landmark for American copyright law. For the first time in twenty years, published works of expression—including books, music, and films—started moving out of copyright protection and into the public domain.

Edgar Rice Burroughs’ “Tarzan and the Golden Lion” is now in the public domain in the United States.

U.S. copyright law gives creators several exclusive rights over their creative and original works. These include, for example, the right to control copying and distribution of protected works, subject to certain exceptions and limitations. But, eventually, protections end. The copyright term determines when a work falls out of copyright protection and becomes a public domain work.

Every country decides for itself when a work protected under its law enters the public domain in that country, subject to international treaties. Public domain works are free for anyone to copy, excerpt, rework, and adapt without anyone’s permission. A federal law enacted in 1998 extended the term of U.S. copyright protection to all works. As a result, pre-1998 works that would have become part of the public domain in 1999 had their protection extended in the United States.

Cecil B. DeMille’s “The Ten Commandments” is now in the public domain in the United States.

Works from 1923 entering the public domain in January in the United States include Kahlil Gibran’s “The Prophet,” a Tarzan story by Edgar Rice Burroughs, several stories by comedic writer P.G. Wodehouse, and a Sherlock Holmes story by Arthur Conan Doyle. A Rin Tin Tin film, Cecil B. DeMille’s black-and-white Ten Commandments, films featuring Oliver Hardy and Stan Laurel, and D.W. Griffith’s “The White Rose” are also among 2019’s public domain class.

This commences a new phase of U.S. copyright law, and from now on, works will be entering the public domain on a yearly basis.

Other authors included in this year’s class of public domain works include: Joseph Conrad, F. Scott Fitzgerald, E.M. Forster, Carl Sandburg, Virginia Woolf, William Butler Yeats, Hugh Walpole, Nikolay Gogol, Maxim Gorky, Zane Grey, H. Rider Haggard, Aldous Huxley, Rudyard Kipling, Ring Lardner, D.H. Lawrence, Sinclair Lewis, Willa Cather, G.K. Chesterton, Anton Chekhov, Agatha Christie, Jean Cocteau, Sherwood Anderson, and H.L. Mencken.

D.W. Griffith’s “The White Rose” is now in the public domain in the United States.

This represents a completion of the cycle of copyright protection for many works. The U.S. Constitution authorized Congress to establish copyright laws that would result in the enrichment of the populace as a whole. Authors are rewarded for their creation, the public gets to enjoy those works, and eventually those works enter the public domain.

Kahlil Gibran’s “The Prophet” is now in the public domain in the United States.

Copyright protection is one side of the coin of incentivizing new creations—authors are empowered to seek benefit from limited control over their works. The other side of the coin represents when copyright protection ends, and new authors can build on what went before.

For example, in 1948 composer Cole Porter produced the stage musical “Kiss Me, Kate,” based on Shakespeare’s “The Taming of the Shrew.” In 1999, Gil Junger and Touchstone Pictures produced the film “10 Things I Hate About You” with Julia Stiles and Heath Ledger, another reworking of Shakespeare’s romantic comedy. Even though the concept of copyright law and the public domain didn’t exist in Shakespeare’s time, he applied what we now know as public domain principles by taking existing stories and reworking them to produce his own works.

The Copyright Office will celebrate the public domain with a Copyright Matters event on January 16. A choir will perform selections from public domain musical works and speakers will discuss the significance of the public domain concept to copyright law and the culture.

The Public Domain: Celebrating the Lifecycle of Copyright is part of the U.S. Copyright Office’s Copyright Matters Lecture Series, which focuses on the practical implications of copyright law in the twenty-first century, provides education and training to the staff of the Copyright Office, and offers training to the public. The Copyright Office began this series in 2012, and the most recent Copyright Matters event, in October, focused on the intersection of copyright law and the news.

Categories: Research & Litigation

Happy National Spaghetti Day!

In Custodia Legis - Fri, 01/04/2019 - 10:14am

Today, January 4, is National Spaghetti Day. And no one appreciates pasta more than the self-proclaimed “Pastafarians,” members of the Church of the Flying Spaghetti Monster (FSM). According to their website, they believe, among others things, that “[p]irates were the original Pastafarians”, that “the Flying Spaghetti Monster created the world much as it exists today, but for reasons unknown made it appear that the universe is billions of years old (instead of thousands)”, and that their scripture need not be believed literally. The website also states, “[t]he Church of FSM is legit, and backed by hard science. Anything that comes across as humor or satire is purely coincidental”. However, not every country sees it that way and Pastafarians have struggled to gain recognition in Europe.

In Germany, Pastafarians wanted to display signs with information for their weekly “noodle mass”  next to the signs of the Catholics, Protestants, and other denominations. In Austria, they sought recognition as a religious confessional community with legal personality. In the Netherlands, a Pastafarian fought for the right to wear a colander on her head in her passport and driver’s license photo. All these applications were denied.

An Italian farm woman near Providence, Rhode Island preparing spaghetti. (Jack Delano, photographer. 1940). Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/fsa.8c04153.

Germany

In Germany, the Church of the FSM sought to display signs with information for their weekly “noodle mass” next to the signs of other churches. In October 2018, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) refused to hear the applicants’ complaint against the lower courts’ decisions. The order of the Federal Constitutional Court did not include a reasoning and simply stated that the complainants did not substantiate that they foster a philosophical view of the universe (Weltanschauung) which gives them an identical legal status to religions societies. The court of appeals, the Higher Regional Court of Brandenburg (Brandenburgisches Oberlandesgericht), had held that the Church of the FSM does not fulfill the criteria to be recognized as a religious society or ideological association. According to the court, satire in itself is not enough, in particular because the bylaws of the Church of the FSM state that the “flying spaghetti monster” is a religious satire and the Court cannot regard it as belief in a deity. The Court added that the Church of the FSM could also not be recognized as an ideological association. Ideological associations focus on explanations for the existence of mankind or the universe, whereas the Church of the FSM focuses on the satirical analysis of established religions, views, and actions. Finally, the court of appeals added that there are no common dogmas and that Pastafarians change their views as necessary.

Netherlands

On August 15, 2018, the Dutch Council of State (Raad van State), the country’s highest general administrative court, held that Pastafarianism is not a religion and the applicant may therefore not wear a colander on her head for her passport and driver’s license picture. The Dutch Passport Implementation Regulations 2001 (Paspoortuitvoeringsregeling Nederland 2001) provide that people may generally not cover their head on an official passport or driver’s license picture. However, if is required by their religion or philosophical movement, an exception can be made. (Paspoortuitvoeringsregeling Nederland 2001, art. 28, para. 3)The Council of State relied on the established case law of the European Court of Human Rights (ECtHR) to decide whether to regard Pastafarianism as a religion. The ECtHR has stated that views of a movement must “attain a certain level of cogency, seriousness, cohesion and importance” before they can enjoy the protection of freedom of thought, conscience, and religion under article 9 of the European Convention on Human Rights (ECHR). The Council of State held that even though it is important to express satirical criticism of established religions and their rites, that criticism itself is not a religion. As examples, it cited the “rather-nots” as a joking variant of the Ten Commandments from the Jewish-Christian tradition, “The Old Pastament”, “The New Pastament”, and the Pastafarian Prayer, which the Church of the FSM derived from the “Lord’s Prayer”. In particular, it held that “seriousness” and “cohesion” were missing. For example, the Council of State sees the lack of coherence in a letter by Bobby Henderson—the founder of the Church of the FSM—in which he sets out the relationship between the reduction in the number of pirates since the year 1800 and the warming of the earth.

Austria

In March 2018, the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) ruled that the Church of the FSM does not qualify as a “religious confessional community”. In April 2014, the Church of the FSM had submitted an application under the Austrian Federal Act on the Legal Personality of Religious Confessional Communities (Act) (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften) to acquire legal personality. The Act provides that “religious confessional communities” are associations of members of a religion, which are not recognized by law. (Act, § 1.) They may acquire legal personality by submitting an application to the Austrian Federal Ministry of Education, Art, and Culture (now called Federal Ministry of Education, Science and Research). (Id. § 2, para. 1.) The application must contain the bylaws and proof that the religious confessional community has at least 300 members in Austria. (Id. § 3.) The law states that the Ministry must deny the application when the bylaws of the association do not fulfill the criteria set out in the law. (Id. § 5, para. 1, no. 2.) Among other things, the bylaws must contain:

  • name of the religious confessional community which must be unique and distinctive;
  • description of the religious creed;
  • description of the rights and obligations of its members; and
  • provisions on becoming a member and leaving the community. (Id . § 4.)

The Federal Ministry denied the application. The objection that the Church of the FSM filed against the decision of the Federal Ministry remained unsuccessful. A complaint against the administrative decisions was submitted to the Federal Administrate Court, which also denied the request. The Federal Administrative Court stated that an application to acquire legal personality must be submitted by an authorized representative of a religious confessional community. As a preliminary step, the court therefore had to determine whether the Church of the FSM was a “religious confessional community”. It explained that the term is a subcategory of “religious communities” which are understood as “organized communities of members of a religion”. This definition requires a “historically evolved system of beliefs that interprets people and the world in their relation to transcendence and provides specific rites, symbols, and guidance for peoples’ actions, and which has at least 300 members in Austria”. The Court held that the Church of the FSM fulfills these criteria to some extent, but that there are no specific rites, and it is missing an organized community in Austria. According to the Court, eating pasta together and the “transcending” of beer is not different from normal eating and drinking due to the lack of specific religious reference points. In addition, there are no regular Church of FSM services in Austria. The Court held that it was therefore irrelevant whether individual members or a majority of the members believe in a “flying spaghetti monster”.

Next Steps

According to news reports, Pastafarians are planning on taking their cases to the ECtHR. It will be interesting to see whether the ECtHR will accept the cases and how it will decide. We will keep you updated. Until then, enjoy a dish of delicious pasta!

Categories: Research & Litigation

The Most Viewed Global Legal Monitor Articles of 2018

In Custodia Legis - Wed, 01/02/2019 - 1:38pm

Ruth recently brought you the most viewed foreign law reports of 2018, and today we are excited to bring you the most viewed Global Legal Monitor articles of 2018! The Global Legal Monitor is written by the Law Library’s foreign legal specialists, and brings you the latest legal news from around the world. You can subscribe to the Global Legal Monitor free of charge, and you can even narrow your subscription to a particular topic or jurisdiction.

So, what are the most viewed Global Legal Monitor articles of 2018?

1. Pakistan: National Assembly Passes New Cybercrime Law 
2. South Korea: Permanent Dual Nationality Allowed after 60 Years 
3. Germany: New Rules for Operation of Drones and Model Aircraft 
4. Nepal: Minimum Wage Increased 
5. Nigeria: Supreme Court Invalidates Igbo Customary Law Denying Female Descendants the Right to Inherit 
6. New Zealand: Paid Parental Leave to Be Extended to 26 Weeks by 2020 
7. South Africa: Carbon-Tax Legislation Proposed 
8. China: New Rules Increase Restrictions on Overseas Cash Withdrawals 
9. Kenya: Anti-Money Laundering Law Amended 
10. Italy: New Law Changes Retirement Age 

The Global Legal Monitor on Law.gov.

 

Categories: Research & Litigation

Law Library of Congress FY2018 Annual Report

In Custodia Legis - Mon, 12/31/2018 - 9:30am

The Law Library of Congress FY2018 Annual Report is now available for download.

The Year in Numbers

Land grant signed by William Penn, granting 500 acres of land in Pennsylvania to John Dwight, one of the most famous potters of seventeenth-century England. London: 22 March 1686. Kelly McKenna

The Law Library’s Annual Report for the 2018 fiscal year (October 1, 2017 – September 30, 2018) highlights the scope of our collections, resources, and expertise, and how we serve and engage with a wide range of users. It includes the following figures for the year:

  • 2,954,200 volumes: the largest collection of law materials in the world
  • 60% of the collection is foreign law
  • 395 legal research reports, special studies and memoranda for the legislative branch
  • 1,270 research or reference reports for executive- and judicial-branch agencies, the U.S. bar, and members of the public around the world
  • 3,680 inquiries answered through Ask-A-Librarian
  • 5,260 participants in 173 seminars and orientations on legal and legislative research
  • 18,654 inquiries answered in our reading room, on the phone or electronically
  • 38,000 likes on Facebook
  • 69,800 followers on Twitter @LawLibCongress
  • 53,900 followers on Twitter @Congressdotgov
  • 626,358 page views for the Law Library’s blog, In Custodia Legis
  • 4,849,707 page views for Law.gov
  • 781,148 page views for the Global Legal Monitor
  • 327 articles published in the Global Legal Monitor
  • 759,798 page views for the Guide to Law Online

Impact

The Annual Report lists the following examples of the impact of our various research publications and resources during the year:

The authors of a New York Times article, How to Buy a Gun in 15 Countries, published on March 2, 2018, relied on the Law Library’s comparative law report, Firearms-Control Legislation and Policy.

Justice Clarence Thomas cited the Law Library’s A Century of Lawmaking for a New Nation website in his dissent regarding search and seizure of cellphone location records in Carpenter v. United States (June 22, 2018).

The Congressional-Executive Commission on China (115th Congress) cited three Law Library Global Legal Monitor articles by Foreign Law Specialist Laney Zhang in its 2017 annual report (October 15, 2017).

Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) quoted directly from the Law Library’s report, Provisions on Child Asylum Seekers in Selected Jurisdictions, in her opening remarks at a subcommittee hearing on protections for unaccompanied immigrant children (May 23, 2018).

The U.S. Environmental Protection Agency relied on the Law Library’s report, Status of Lead Paint Regulation in Selected Jurisdictions, containing hard-to-find legal information on 25 countries, and used it to initiate a campaign against lead in paint at the United Nations (September 10, 2018).

Event Highlights

Harry Truman’s Notebook for Kansas City Law School Night Classes. [Kansas City, Missouri, ca. November 20, 1924–January 29, 1925]. Although Truman’s was an administrative (not a judicial) position, in 1923 he began attending night classes at the Kansas City School of Law. The notebook is filled with his extensive notes. Kelly McKenna

During the year we hosted a number of events that featured high-profile participants, including:

The Ambassador of the Republic of Tunisia, Fayçal Gouia, spoke at an event celebrating the book, The Santillana Codes: The Civil Codes of Tunisia, Morocco, and Mauritania.

Professor of Law Jeremy Waldron delivered the 2017 Kellogg Biennial Lecture on Jurisprudence.

The Supreme Court Fellows Annual Lecture 2018 featured Justice Thomas.

Law Librarian of Congress Jane Sánchez interviewed American Bar Association President Hilarie Bass on Law Day 2018.

The Peace Palace Library MOU Signing Ceremony, held on July 18.

The current fiscal year, FY2019, is shaping up to be another great period of research, events, and sharing our knowledge and resources with all of our users. We hope you continue to find information of interest on this blog, through our website, and by making use of our services.

 

Categories: Research & Litigation

Most Viewed Law Library Foreign Law Reports of 2018

In Custodia Legis - Fri, 12/28/2018 - 9:00am

The In Custodia Legis team has developed a tradition of looking back and reporting on those foreign law reports published that year on the Law Library of Congress website. Our team members also routinely review and report on the most viewed foreign law reports, Global Legal Monitor articles, and In Custodia Legis posts during the passed year.

During 2018, Hanibal and I introduced two new reports in two separate blog posts:

Library Of Congress. Photoduplication Service, photographer. Clearance of report with Section Chief. Dr. Arahag O. Sarkissian, Analyst, European Affairs; Dr. Merlin H. Nipe, Deputy Assistant Director and Chief of History and General Research Section, 1951. Photograph. https://www.loc.gov/item/2009631245/.

Additional foreign law reports published by the Law Library during 2018 include:

The most viewed foreign law reports during 2018 almost mirror those identified as most viewed in 2017. They cover similar topics such as firearm control legislation and policy, children’s rights and issues relating to citizenship and refugees. Below are the 15 foreign law reports that received the most views in 2018.

Stay tuned for more reports in 2019! If you want to find out when we publish new reports in 2019, subscribe to an email alert or to the RSS feed. We also tweet when new reports go online. Follow the Law Library’s Twitter account, @LawLibCongress. We will do our best to inform you of new foreign law reports on In Custodia Legis as well.

Happy 2019!

Categories: Research & Litigation

The Congress.gov Top 18 in 2018

In Custodia Legis - Thu, 12/27/2018 - 11:12am

Congress.gov celebrated its sixth birthday this year on September 19.  It has come a long way since the initial beta website, which was launched with filters, the status of legislation tracker, legislative process videos, a mobile friendly responsive design, and member pages.  Those were all items that were not available on the former THOMAS website.  Since then we have been able to add popular features such as bill alerts, saved searches, and the ability to download your search results.

This year we have pushed Congress.gov even further.  We started in January with a new Congress.gov search box, search form, and a streamlined header.  In February we increased the number of search results you can download from 500 to 1,000.  There were updates in March and April (Part 1 and Part 2).  Tina provided a nice overview of new ways to search Congress.gov in April.  We spent time working to enhance our saved search email alerts.

The Capitol Building from the Library of Congress / Photo by Andrew Weber

We also had the following updates throughout the year:

September was a particularly busy month: Dr. Hayden announced that Congressional Research Service Reports are now available via crsreports.congress.gov, and Robert blogged about the new experimental Congress.gov Chrome extension.

A huge behind the scenes change occurred over the second half of this year.  The Government Publishing Office (GPO) transitioned its online publication of government information from the FDsys website to govinfo.  A lot of data for Congress.gov comes from GPO, so we needed to switch to getting the data from govinfo when the old site was successfully retired earlier this month.  Congratulations, GPO!

Also during the year, a reference to Congress.gov was spotted at the Martin Luther King, Jr. National Historical Park by Bill Kellum.  Leah K. Ibraheem shared metrics from mobile devices for the site, and Chalonda NewmanMichelle Wilson, and Leah shared information about their roles in a series of interviews. A terrific team works to make Congress.gov the powerful site that it is.

Top 18 in 2018

To see what items were most viewed in previous years on Congress.gov, take a look back at 13 in 201314 in 201415 in 2015, 16 in 2016, and 17 in 2017.  For the top 18 most-viewed bills in 2018, I have also added the latest step in the tracker for each item below as of the drafting of this post.

  1. H.R.1865 – Allow States and Victims to Fight Online Sex Trafficking Act of 2017 [Became Law]
  2. H.R.5087 – Assault Weapons Ban of 2018 [Introduced]
  3. H.R.1 – An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018. [Became Law]
  4. H.R.38 – Concealed Carry Reciprocity Act of 2017 [Passed House]
  5. H.R.5428 – Stand with UK against Russia Violations Act [Introduced]
  6. H.R.392 – Fairness for High-Skilled Immigrants Act of 2017 [Introduced]
  7. H.R.5515 – John S. McCain National Defense Authorization Act for Fiscal Year 2019 [Became Law]
  8. S.2155 – Economic Growth, Regulatory Relief, and Consumer Protection Act [Became Law]
  9. H.R.1625 – Consolidated Appropriations Act, 2018 [Became Law]
  10. H.R.4760 – Securing America’s Future Act of 2018 [Failed House]
  11. S.3036 – Keep Families Together Act [Introduced]
  12. H.R.2810 – National Defense Authorization Act for Fiscal Year 2018 [Became Law]
  13. H.R.1892 – Bipartisan Budget Act of 2018 [Became Law]
  14. H.R.5404 – To define the dollar as a fixed weight of gold. [Introduced]
  15. H.R.2 – Agriculture Improvement Act of 2018 [Resolving Differences]
  16. H.R.620 – ADA Education and Reform Act of 2017 [Passed House]
  17. H.R.5682 – FIRST STEP Act [Passed House]
  18. H.R.6 – SUPPORT for Patients and Communities Act [Became Law]

Eight of the eighteen items above became law.

It has been a great year for Congress.gov.  I am excited for what comes next in 2019, including new features like the planned Committee Schedule.

The view looking up inside the rotunda inside the Capitol Building / Photo by Andrew Weber

Categories: Research & Litigation

On Gene Edited Babies: What Chinese Law Says

In Custodia Legis - Wed, 12/26/2018 - 11:51am

A Chinese scientist recently claimed to have edited the DNA of human embryos and created the world’s first genetically edited babies, although his claim has not been verified so far. Chinese authorities reportedly said the incident as reported by the media “blatantly violated China’s relevant laws and regulations,” and ordered an investigation into the scientist’s claim.

It seems it is not the first time that Chinese scientists conducted research on gene editing in human embryos, but the previous research does not seem to have violated Chinese law. So what does Chinese law say about it?

1. 2003 Ethics Guidelines

There does not appear to be a law passed by the National People’s Congress that governs gene editing in human embryos. The most relevant provisions concerning such research may be a set of ethics guidelines jointly issued by China’s Ministry of Science and Technology and the then-Ministry of Health (currently the National Health Commission) in 2003, the Guidelines for Ethical Principles in Human Embryonic Stem Cell Research (Ren Peitai Ganxibao Yanjiu Lunli Zhidao Yuanze (Guo Ke Fa Sheng Zi [2003] No. 460, Dec. 24, 2003)) (hereinafter “Guidelines”).

Under the Guidelines, research of gene editing in human embryos is allowed but with specific restrictions. Article 6 of the Guidelines states:

Research in human embryonic stem cells shall be in compliance with the following behavioral norms:

  1. Where blastula is obtained from external fertilization, somatic nucleus transplantation, unisexual duplicating technique or genetic modification, the culture period in vitro shall not exceed 14 days from the day of fecundation or nuclear transplantation.
  2. Implantation of human blastula obtained and used in research as provided in the preceding paragraph into human or any other animal reproductive systems shall be prohibited.
  3. Combination of humane germ cell with that of other species shall be prohibited. (Translation provided by Westlaw China, by subscription.)

Thus, according to the Guidelines, human embryos used in research are not allowed to develop for more than 14 days. And more importantly, it is prohibited to implant such genetically modified embryos into a human or animal body for the purpose of reproduction.

The Guidelines also provide that the research is subject to reviews by the ethics committee within the researcher’s own institution. According to article 9 of the Guidelines, hospitals and research institutions engaging in embryonic stem cell research must establish institutional ethics committees that consist of research and executive personnel in the areas of biology, medical science, law, and social sciences. A more recent departmental rule issued by the National Health and Family Planning Commission in 2016 further requires any biomedical research involving humans to be subject to ethical review, and provide more detailed rules on the review. (Sheji Ren de Shengwu Yixue Yanjiu Lunli Shencha Banfa [Measures for the Ethical Review of Biomedical Research Involving Humans] (Oct. 12, 2016, effective Dec. 1, 2016).)

Under the Guidelines, allowed sources of embryonic stem cells used in research include: unwanted gametes or blastulas from in vitro fertilization (IVF) procedures; embryo cells from miscarriages or voluntarily induced abortions; blastulas or single split blastocysts from somatic cell nuclear transfer technology; or donated germ cells (art. 5).

In addition, the Guidelines specifically prohibit any research on human reproductive cloning (art. 4). Buying or selling human gametes, cytulas, embryos, or embryonic tissue is also prohibited (art. 7).

2. 2001 Measures on Assisted Reproductive Technology

Creating babies with the genetically modified embryos may also violate a departmental rule issued by the Ministry of Health in 2001 on assisted reproductive technology (ART), the Measures on Administration of Assisted Human Reproduction Technology (Renlei Fuzhu Shengzhi Jishu Guanli Banfa (MOH Decree [2001] No. 14, Feb. 20, 2001, effective Aug. 1, 2001)) (hereinafter “ART Measures”). Article 13 of the ART Measures provides that performing ART in China must abide by the Technical Standards of the Assistant Human Reproductive Technology, the latter specifically prohibit any genetic manipulation of human embryos for reproductive purposes (§3(9)).

Furthermore, according to the ART Measures, ART may only be performed in medical institutions that have been specially approved and registered to perform ART; without the approval of the government health authority, any organizations or individuals may not perform ART (art. 12). The ART Measures also require informed consent, and any ethics issues involved must be submitted to the ethics committee for discussion (art. 14.)

In conclusion, it appears research of gene editing in human embryos is allowed in China, subject to restrictions, approvals, and ethics reviews, but using such genetically modified embryos to create babies is prohibited.

3. Penalties?

It may not be easy to determine the legal liabilities of the relevant persons in accordance with the existing Chinese laws and regulations. The 2003 ethics guidelines contain no penalties for violations. The ART Measures provide that medical institutions violating the measures are punishable by a fine of up to 30,000 Chinese yuan (about US$4,300), and responsible persons may be subject to administrative punishments (art. 22). The same article mentions criminal prosecution is possible in accordance with the Criminal Law. However, the Criminal Law does not contain a specific crime such as creating gene-edited babies. A lawyer in China has suggested that some crimes in the Criminal Law may be applicable, such as the crime endangering public safety or the crime of illegal medical practice.

The PRC Criminal Law collected by the Law Library of Congress (in Chinese and English), https://lccn.loc.gov/2016372499.

Categories: Research & Litigation

Pages

Subscribe to Mass Legal Services aggregator - Research & Litigation

Limit Offer