You are here

Research & Litigation

Miranda and the Rights of Suspects

In Custodia Legis - Fri, 10/15/2021 - 9:37am

The following is a guest post by Alexander Salopek, a collection development specialist in the Collection Services Division of the Law Library of Congress. He previously wrote posts on Theodore Roosevelt and Marriage Equality in the U.S.

I wanted to learn more about the person whose case defined one particular aspect of the U.S. criminal justice system. Ernesto Miranda was an unlikely person to be immortalized in American popular culture, but when he was taken in for questioning by police, the particular facts of his case pointed to an abuse of power, which the Supreme Court at the time felt it should remedy. He ultimately made a confession, which lead to his conviction. His case was appealed all the way to the Supreme Court – where it changed police interrogations and the law of confessions.

In late 1962 and early 1963, there were a series of violent assaults on young women in Phoenix, Arizona. The cases would likely have never been solved if it wasn’t for the specific car used in one of the assaults, a 1953 Packard sedan. It was randomly seen by one of the victim’s cousins, who had started escorting their cousin after the assault. (Stuart, 5). Subsequent police investigations, including reconnecting with the detective in charge, visiting a car dealership, and having a registration search done, lead to Ernesto Miranda, who was living with a woman who owned that make and model of car (Stuart, 5-6). Miranda was cooperative with police and denied that he had anything to do with the assaults. He volunteered to go to the police station for questioning and to participate in a lineup (Stuart, 6). Once there, he should have been informed that he could be appointed an attorney, and that anything he said could be used against him in court. The victims thought that Miranda could have been the assailant, but neither was sure; if Miranda had an attorney he would likely have been let go. Unfortunately for Miranda, he believed that the victims recognized him fully and he made a full confession to the crimes (Stuart, 6-7). This confessions was used against him at his trial, where he was found guilty by a jury.

Headstone marking the grave of Ernesto Arturo Miranda in the Mesa City Cemetery [Photo by Flickr user Midnight Believer. Used under CC 2.0 license.]

When the Arizona Supreme Court upheld the conviction on Miranda’s case, they found a decision by the US Supreme Court rendered shortly before Miranda’s case, in the matter of Escobedo v. Illinois that determined that suspects had a right to counsel during police questioning. Many disagreed with the Arizona Supreme Court including John P. Frank, a former Justice Black clerk who wrote the Miranda Brief for the U S. Supreme Court, and John J. Flynn, a criminal defense attorney who argued the case in front of the U S. Supreme Court (Stuart, 53). The Supreme Court held that Miranda was not explicitly given a set of warnings before making his confession, in violation of the Fifth and the Sixth Amendments to the U.S. Constitution. These warnings became known as Miranda warnings. Accordingly, “a defendant cannot be questioned by police in the context of a custodial interrogation until the defendant is made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent.”

This meant to take a suspect into custody the officer would need to explicitly state their rights, or Mirandize them (Stuart, 80). Chief Justice Warren hoped that this would provide more knowledge to suspects and create a more just criminal justice system (Powe, 397-398).

Following the Supreme Court decision, one of Miranda’s cases was reversed and remanded to the lower court for retrial and his other conviction was also allowed to have a retrial through his new defense attorney’s work (Stuart, 92). Miranda was retried and found guilty in both cases. He was imprisoned at Arizona State Penitentiary, and once released from prison sold autographed “Miranda” warning cards in downtown Phoenix. He was stabbed to death in a bar fight about a month after he was released. As for the Miranda warning, it has become so popular in the American imagination (likely due to detective procedural TV shows, films, and books), that many can recite it from memory –  something that Chief Justice Warren may have hoped for the future when making his decision.

We’ve had a few other In Custodia Legis posts about Miranda warnings, including equivalents in other countries: You Have the Right to Remain SilentMiranda Rights and National Police Week; 2016 Law Day Program 50th Anniversary of Miranda v. Arizona; Law Library Event– the Depiction of Law in Film and Television; Human Rights and the Miranda Warning in Eastern Europe.

Resources

Cox, Archibald. (1968) The Warren Court: Constitutional Decision as an Instrument of Reform.

Powe, Jr., Lucas A. (2000) The Warren Court and American Politics.

Sayler, Richard H., Boyer, Barry B., & Gooding, Jr., Robert E. (1968)  The Warren Court: a Critical Analysis.

Stone, Geoffrey R. & Strauss, David A. (2020) Democracy and Equality: the Enduring Constitutional Vision of the Warren Court. Oxford University Press

Stuart, Gary L. (2004) Miranda: the Story of America’s Right to Remain Silent.

Categories: Research & Litigation

Upcoming US Law Webinars – November 2021

In Custodia Legis - Wed, 10/13/2021 - 1:40pm

In November, the Law Library of Congress will present webinars on federal statutes and an orientation to the Law Library’s collections. Attendees at the federal statutes webinar will have the opportunity to learn about the legislative process and how to trace federal statutes from their publication in the U.S. Code to their origins as bills. Participants will also learn about the difference between public and private laws, how to conduct research using free online resources, and other useful tips and tricks.

The webinar on the orientation to the Library’s collections will also provide instruction on using the Law Library’s print and online collections. More information about the contents of each class can be found below.

 

[Students in the Reading Room of the Library of Congress with the Librarian of Congress, Herbert Putnam, watching]. Johnston, Frances Benjamin, photographer. [1899?]  http://hdl.loc.gov/loc.pnp/cph.3a07924

Orientation to Legal Research: Federal Statutes

Date: Thursday, November 4, 11:00 AM EDT – 12:00 PM EDT

Content: This entry in the series provides an overview of U.S. statutory and legislative research, including information about how to find and use the U.S. Code, the U.S. Statutes at Large, and U.S. federal bills and resolutions.

Instructor: Margaret M. Wood – senior legal reference librarian. Margaret holds a BA in history from Oberlin College and a Master of Science in Library Science from Catholic University.

Register here.

Orientation to Law Library Collections Webinar

Date: Tuesday, November 16, 1:00 PM EST – 2:00 PM EST

Content: This webinar provides information about the Law Library’s wide range of online resources, as well as our print collections.

Instructor: Margaret M. Wood – senior legal reference librarian. Margaret holds a BA in history from Oberlin College and a Master of Science in Library Science from Catholic University.

Register here.

To learn about other upcoming classes on domestic and foreign law topics, visit the Legal Research Institute.

Categories: Research & Litigation

New Acquisitions for Indigenous People’s Day

In Custodia Legis - Tue, 10/12/2021 - 11:40am

Greetings from Nacotchtank, Piscataway and Pamunkey traditional lands.

As the last fiscal year just ended, the Law Library’s Collection Services Division staff are looking back on a successful acquisitions year. It seems like a good time to talk about some of our successes, especially acquisitions related to Indigenous peoples, since yesterday was the day that many jurisdictions in the U.S. celebrate Indigenous People’s Day (Alaska, Hawaii, Iowa, Louisiana, Maine, Michigan, Minnesota, New Mexico, Oregon, Vermont, Virginia, South Dakota, Washington, D.C. and Wisconsin). Our acquisitions colleagues here in the Library just acquired the rest of the volumes we were missing from our holdings of the Navajo Reporter. We have worked to increase our holdings of law from sovereign Indigenous nations this year; we hope you will review our list of some items acquired since the last list we published in 2016, and prepare your reading list for the upcoming National Native American Heritage Month.

             Dancer at Julyamsh 2014 Pow Wow [Photo by Flickr user k.par.photo. Used under CC 2.0 license.]

Resources

KF8203 1830 .D55 2017 Dils, Tracey E. 12 questions about the Indian Removal Act.

KF8205 .A757 2020 Anderson, Robert T. American Indian law: cases and commentary.

KF8205 .F585 2017 Fletcher, Matthew L. M. Principles of federal Indian law.

KF8205.R43 2019 Reading American Indian law: foundational principles.

KF8205 .A76 2020 American Indian law deskbook 2020 ed.

KF8205 .T73 2020 Traditional, national, and international law and indigenous communities.

KF8215.75 .R69 2018 Royster, Judith V. Native American natural resources law: cases and materials.

KF8205 .H37 2018 Hart, E. Richard. American Indian history on trial: historical expertise in tribal litigation.

KF8205 .C373 2017  Cases and materials on Federal Indian Law.

KF8390 .H369 2019 Harmon, Alexandra. Reclaiming the reservation: histories of Indian sovereignty suppressed and renewed.

KIE19 .I53 2018 Indian treaties in the United States: an encyclopedia and documents collection.

KIE20 .C37 2018 Case, Martin. The Relentless business of treaties: how indigenous land became US property.

KIE110 .E15 2019 EagleWoman, Angelique Townsend. Mastering American Indian law.

KIE110 .F57 2020 Fletcher, Matthew L. M. American Indian tribal law. Second edition.

KIE182 .F57 2020 Fletcher, Matthew L. M. The Ghost road: Anishinaabe responses to Indian-hating.

KIE1877 .R53 2021 Richland, Justin B. Cooperation without submission: indigenous jurisdictions in native nation-US engagements.

E99.C53 K495 2020 Killsback, Leo. A Sovereign people: indigenous nationhood, traditional law, and the covenants of the Cheyenne nation.

E78.W8 L43 2018 Leary, J. P. The Story of Act 31: how native history came to Wisconsin classrooms.

KIK1074 .R67 2021 Rosser, Ezra. A Nation within: Navajo land and economic development.

KIK1067 .N38 1979 Navajo reporter. (full set!)

Aupilaarjuk, Mariano. Perspectives on traditional law. 1999.

KZ3673.3 .H37 2021 Harvey, Roberta Carol. The Earth is red: the imperialism of the doctrine of discovery.

Categories: Research & Litigation

Join Us on November 9th for the Jane Sánchez Memorial Lecture on the Future of Law Libraries and Law Librarianship

In Custodia Legis - Fri, 10/08/2021 - 8:30am

The late Law Librarian of Congress and Deputy Librarian for Library Collections and Services Jane Sánchez worked to advance the Law Library of Congress by advocating for new and innovative initiatives. These initiatives, such as the Law Library of Congress Legal Research Institute, helped enhance the Law Library’s products and services, and expand our ability to assist patrons across the world. On November 9th at 3 p.m. EDT, the Law Library will host the Jane Sánchez Memorial Lecture on the Future of Law Libraries and Law Librarianship. This webinar, which is co-sponsored with the American Association of Law Libraries, will honor Jane’s legacy by examining the future of law libraries and law librarianship with a panel of experts that draw upon their years of experience as leaders in academic, government, and law firm libraries. Please click here to register.

Jane Sánchez. Deputy Librarian for Library Collections and Services and Law Librarian of Congress. Photo by Donna Sokol.

Law Librarian of Congress Aslihan Bulut will moderate the discussion. Information about the panelists is provided below:

 

 

  • David Mao is the chief operating officer of the Georgetown University Law Center and the former law librarian of congress, deputy librarian of congress, and acting librarian of congress. David holds a B.A. in international affairs from George Washington University, a J.D. from Georgetown University Law Center, and an M.L.I.S. from The Catholic University of America.

 

 

Categories: Research & Litigation

Join Us for a Foreign and Comparative Law Webinar: “Freedom of Speech in the Time of Pandemic: Central America and Eurasia”

In Custodia Legis - Thu, 10/07/2021 - 8:30am

On October 21st, at 2pm EDT, Law Library analysts Iana Fremer and Dante Figueroa will be presenting a webinar on the Law Library of Congress report titled, “Freedom of Expression during COVID-19,” which was released in September 2020. The presenters will review current legislative developments regulating mass media and their ability to distribute information freely during the COVID-19 pandemic. In particular, the presenters will analyze recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan.

Please register here

Flyer announcing upcoming foreign law webinar on “Freedom of Speech in the Time of Pandemic: Central America and Eurasia” created by Kelly Goles.

Presenters:

Iana Fremer has been a legal research analyst at the Law Library of Congress since 2020. She holds a master’s degree in journalism and media management from the Caucasus School of Journalism and Media Management, and a master’s degree in Russian Language and Literature from Tbilisi State University. She is fluent in Russian, English, and Georgian. She provides research and reference services on 30 jurisdictions in Eurasia and Eastern Europe.

Dante Figueroa is a senior legal information analyst and has worked at the Law Library of Congress since 2006. He has a J.D. degree from the University of Concepcion, Chile, an LL.M. from the University of Chile, and an LL.M. from American University in Washington, D.C. He is fluent in Spanish, English, French, and Italian, and conversant in German and Portuguese. He covers Italian, Vatican, Roman, and Canon law.

Categories: Research & Litigation

Legal Research Reports:

Law Library of Congress: Research Reports - Wed, 10/06/2021 - 2:06pm

The Law Library of Congress is proud to present the report, Net Zero Emissions Legislation Around the World

This table shows the 39 jurisdictions around the world that the Law Library of Congress has
identified as having a net-zero emissions or climate neutrality goal enshrined in legislation. This
includes the European Union and its 27 member states, where a June 2021 regulation sets 2050 as the target date for climate neutrality. Eight EU member states have passed their own legislation
in addition to the directly applicable regulation, including two that have set an earlier target date.
To date, 11 countries outside the EU have passed legislation containing a net-zero emissions goal,
with two setting a target date earlier than 2050. At least three other countries have introduced or
are expressly developing legislation that includes the goal. (Sept. 2021)

Categories: Research & Litigation

Congressional Cemetery – The Boggs Family

In Custodia Legis - Wed, 10/06/2021 - 10:30am

This is a guest post by Ann Hemmens, a senior legal reference librarian with the Law Library of Congress. Ann has contributed a number of posts to this blog, including posts on Free Public Access to Federal Materials on Guide to Law OnlineU.S. Supreme Court: Original Jurisdiction and Oral Arguments, and Domestic Violence: Resources in the United States

Three members of the politically active Boggs family have markers in the Congressional Cemetery: Thomas Hale Boggs Sr. (Hale Boggs), his son Thomas Hale Boggs Jr., and his daughter Mary Martha Corinne Morrison Claiborne Boggs Roberts (Cokie Roberts).

Thomas Hale Boggs Sr. was a member of the U.S. House of Representatives, representing Louisiana’s 2nd District, including New Orleans, during 14 congresses, spanning three decades between 1941 and 1972. His leadership roles included serving as Democratic Whip in five congresses and as Majority Leader in one congress.

In a 2009 interview with the Office of the Historian in the U.S. House of Representatives, Representative Bogg’s daughter, Cokie Roberts, discussed his decision to speak on behalf of the Voting Rights Act of 1965 during congressional debates on the bill (e.g., 111  Cong. Rec. 16,221- 22 (1965)). He also served on the Warren Commission.

Representative Boggs was presumed dead following the disappearance of a campaign flight from Anchorage to Juneau, Alaska, on October 16, 1972, that also included Representative Nicholas J. Begich from Alaska. A compilation of the memorial addresses and tributes for Representative Boggs that were delivered in Congress was published by the Government Publishing Office.

Representative Hale Boggs’s marker in the Congressional Cemetery is one of the 169 cenotaphs, which are geometrically shaped monuments, with a marble panel for inscription, erected to honor members of Congress who died while in office. The inscription for Representative Nicholas J. Begich is also on this cenotaph.

Honorable Thomas Hale Boggs Cenotaph. Photo courtesy of Ann Hemmens.

Cokie Roberts was a journalist, congressional correspondent, and author. As one of the first female correspondents on National Public Radio, she covered politics and the U.S. Congress. She wrote several books, including Capital Dames: The Civil War and the Women of Washington, 1848-1868 (2015) and Ladies of Liberty: The Women Who Shaped Our Nation (2008). Oral history interviews with Cokie Roberts are included in the Century of Women in Congress project, which includes interviews with family members of women who served in Congress.

Headstone of Cokie Roberts. Photo courtesy of Ann Hemmens.

Back of Cokie Roberts’ headstone. Photo courtesy of Ann Hemmens.

 

 

 

 

 

 

 

 

 

 

 

 

 

Representative Hale Boggs’s son, Thomas Hale Boggs Jr., was a lawyer and lobbyist in Washington, D.C., working for the firm now known as Squire Patton Boggs. He reportedly gave his sister the nickname Cokie. He served as an economist on the Joint Economic Committee of the U.S. Congress (1961-1965) and ran for a seat in the U.S. House of Representatives representing the 8th District in Maryland in 1970. At the Library, you can find this title he authored, Corporate Political Activity.

Gravestone of Thomas Hale Boggs Jr. Photo courtesy of Ann Hemmens.

These three markers are near each other in the Congressional Cemetery.

All three Boggs family members’ grave markers. Photo courtesy of Ann Hemmens.

The Boggs family includes other members that were active in politics. Corinne Claiborne (Lindy) Boggs won a special election following the death of her husband Hale Boggs, and she served 18 years (1973-1991) in the U.S. House of Representatives. She published her memoir, Washington Through a Purple Veil: Memoirs of a Southern Woman (1994) and in 2002 she was honored by the U.S. Congress for her role in founding the Congressional Women’s Caucus, as described by members of the House and Senate. Barbara Boggs Sigmund, daughter of Hale and Lindy Boggs, served as mayor of Princeton, New Jersey, and ran for governor of New Jersey.

Categories: Research & Litigation

An Interview with Julie Schwarz, Foreign Law Intern

In Custodia Legis - Tue, 10/05/2021 - 2:05pm

Today’s interview is with Julie Schwarz, a foreign law intern working in the Global Legal Research Directorate of the Law Library of Congress under the supervision of Nicolas Boring, the foreign law specialist covering French-speaking jurisdictions.

Julie Schwarz, a foreign law intern at the Law Library of Congress. Photo courtesy of Julie Schwarz.

Describe your background.

I was born in Paris, France. When I was eight years old, we moved to New York City for four years. Living abroad was an amazing experience and contributed to my desire to learn more about the world and culture surrounding me.

What is your academic/professional history?

Throughout high school, I knew I wanted to pursue law, but I was disappointed by how national it seemed, as I yearned for more international experiences. I discovered the dual LL.B. and Master 1 degrees between King’s College London and Paris 1 Panthéon Sorbonne University, and immediately knew this was what I wanted to do. During these degrees, I discovered my passion for comparative law, private international law, and arbitration, which led me to the Master 2 degree in European and International Business Law at Paris Dauphine PSL University.

Following my Master 2 degree, I chose to pursue an LL.M. at Georgetown University, from which I graduated this summer. My LL.M. focused on international arbitration and dispute resolution, and I interned part-time in Paul Hastings’ arbitration department. At Georgetown, I was a board member of both the International Arbitration Society and the International Law Society.

How would you describe your job to other people?

I am interning in the Global Legal Research Directorate and assisting Nicolas Boring with requests on foreign law issues in French-speaking European and African jurisdictions. I conduct legal research and draft reports in response to requests the Library receives from numerous sources, including the U.S. Congress and federal agencies, as well as from the public. I also draft articles on recent legal developments in these jurisdictions for the Global Legal Monitor.

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

I was fascinated with the idea that the Library of Congress not only had a legal department which answered questions for Congress, the government, and the public, but also this department answered questions of international law! Working at the Law Library of Congress thus seemed like an exciting opportunity to both continue improving my research and drafting skills and further my passion for comparative law! Working here for the past few weeks, I’ve really enjoyed researching the laws of French-speaking jurisdictions that I’m less familiar with and giving reports on French law to Congress.

What is the most interesting fact you have learned about the Law Library of Congress?

That the Library has items in many different formats! It doesn’t just house books and journals, but also items like drawings, photographs, films, and sound and video recordings.

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

I have been working as a sailing instructor since I was 16 and am currently in training to become a sailing judge!

Categories: Research & Litigation

Legal Research Reports:

Law Library of Congress: Research Reports - Tue, 10/05/2021 - 9:22am

The Law Library of Congress is proud to present the report, Regulation of Crash Avoidance Systems.

This report surveys the legal requirements for car crash avoidance systems aimed at detecting
and classifying vulnerable road users, such as pedestrians and bicyclists, in 14 selected
jurisdictions, namely Australia, Canada, China, France, Israel, Japan, the Russian Federation,
South Africa, Spain, Sweden, Turkey, the United Arab Emirates (UAE), the United Kingdom
(UK), and the European Union (EU). (Aug. 21)

Categories: Research & Litigation

Proclamation of 1809 Allowing for Home Production of Brännvin – Pic of the Week

In Custodia Legis - Fri, 10/01/2021 - 3:15pm

It’s officially October and I thought I would share a proclamation from our Swedish Law collection that I found back in 2019 while researching a blog post on the Treaty of Fredrikshamn. The proclamation entered into force on October 1, 1809.

The document is titled “Kong.Maj:ts Nådiga Kungörelse, Angående Tillåten Brännvinsbränning ifrån den första instundande October till innevarande års slut” and provided for when and how brännvin be legally produced in Sweden, specifying that production could start on October 1, 1809, and continue to that year’s end, i.e., December 31, 1809.

Kongl. Maj:ts Nådiga Kungörelse Angående Tillåten Brännvins-bränning ifrån den första instundande October til innevarande års slut. Photo by Elin Hofverberg.

History

Brännvin has a long history in Scandinavian culture and is typically defined as any distilled liquor, such as vodka with added herbs. It is believed that brännvin was first introduced in Sweden in the 1400s and that it was initially used as medicine for a number of ailments.

The provisions of the 1809 proclamation allowed for the home production of brännvin for personal use, while brännvin could only be sold and served by the glass (per sup) at designated establishments.

Text of Kongl. Maj:ts Nådiga Kungörelse Angående Tillåten Brännvins-bränning ifrån den första instundande October til innevarande års slut. Photo by Elin Hofverberg.

The use of brännvin in the 1800s was much more prevalent than it is in Sweden today; some claim that as much as two liters (about 0.4 gallon or 67 fluid ounces) a week of brännvin was consumed by the average adult Swede during the 1840s.

The Swedish crown clearly found the regulation of brännvin to be important, as a search on the Riksarkivet website (Swedish national archives) for royal proclamations and regulations related to the production of brännvin (brännvinnsbränning) yielded 149 results for the years 1721 through 1861. That averages out to more than one a year. (Searching in historical databases can be like going down a rabbit’s hole, but for those inclined, many historical materials can be found at the Swedish national archives. While researching this post, I especially found the military budget specifications from the 1600s, which lists brännvin, particularly interesting.)

Below is a list of just a handful of events and provisions that were issued or adopted during the 18th and 19th centuries.

  • In 1742, certain classes of farmers (hemmans-brukare) were allowed to, for household use, produce brännvin without a fee to the crown. (Kongl. Maj:ts Nådige Kungiörelse, At Alla Hemmans-Brukare tillåtas bränna brännewin af theras förskämde Säd, til Husbehof, utan afgift. Gifwen Stockholm i Råd-Cammaren then 8. Octobris 1742.
  • In 1806, production was limited to only three months out of the year (October through December). That was also one of the important features of the 1809 decree. (Kongl. Maj:ts Nådiga Kungörelse, Om Bränwinsbränningens inskränkning til Tre Månader. Gifwen Hufwudqwarteret Greiffswald den 19 Augusti 1806.)
  • In 1855, the crown found that the use of alcohol produced for home use was too great and passes a prohibition on the house production of brännvin. That prohibition has mostly lasted until present times.
  • In 1861, the crown announced compulsory government buy-back purchases (inlösen) of distillery products as a result of the ban. (Kongl. Maj:ts nådiga Kungörelse, angående inlösen af enkel bränwinsbränningsredskap. Gifven Stockholms Slott den 15 Februari 1861.)
  • In 1917, there was a push towards banning alcohol, but the proposal was never adopted.
  • In 1919, the “motboken” (ration book for alcoholic beverages) was launched. It provided rules for how often a Swede could purchase alcohol from the state run Vin & Sprit AB. (Vin & Sprit was acquired by Pernod Ricard in 2008.)

 Inventors of alcohol from wood process and gauger in front of large wooden vats in shed. Bain News Service, publisher, no date recorded. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ggbain.04248.

Laws Related to Alcohol Today

I found learning more about the 1809 provisions on the production of brännvin particularly timely as Statistics Sweden, which produces official statistics for Sweden, announced just yesterday, September 30, 2021, that the one consumer product group that saw the greatest increase in sales during the COVID-19 pandemic was that of hard liquor, which saw an increase of 20.8% in 2020 compared to 2019. The figure for all alcoholic beverages was 13%.

Today, there are no specific times of the year designated for when a family may produce its own brännvin, and hembränning (moonshining) of hard liquor is illegal. Specifically, 10 chapter 1 §  of the Alcohol Act (Alkohollag (SFS 2010:1622)) provides that:

 He who

  1. produces hard liquor or liquor drinks without such right in accordance with this law, or
  2. acquires, holds, transports, conceals, or stores alcohol or alcoholic beverages that is illegally produced

Is convicted of unlawful handling of alcoholic beverages, punishable with fines or imprisonment for up to two years.

2 §  He who produces, transfers, or possesses a distillery product or part in violation of 2 ch. 1 § 2 mom. is punished with a fine or up to one year of imprisonment. (All translations by author.)

However, the law still provides in 2 chapter 3 § that certain drinks that contain alcohol may be produced in the home by providing an exception for production in the home for one’s own use. Note that such exemptions do not apply to brännvin, as it is not included in the enumerated types of exempt drinks: “wine, folk beer, strong beer, or other fermented alcoholic beverages” (i.e. beverages made with yeast.)

3 § Wine, folk beer, strong beer and other fermented alcoholic beverages may only be produced by he who has been approved as a bonded warehouse owner for the manufacture or processing of such beverages in accordance with § 9 of the Alcohol Tax Act (1994: 1564) or as a tax-exempt consumer.

What is prescribed in 1 mom. does not apply to production in the home for one’s own needs.

That making your own wine is now legal may be considered indicative of how Swede’s drinking habits have changed over the years. According to reports, wine is now the most prevalent alcoholic beverage consumed, with 45% of total alcohol use whereas hard liquor makes up 17% and low alcohol content products (beer with less than 3.5% and cider) together make up 7%.

To this day Sweden distinguishes between alcohol bought at a bar and alcohol bought by an individual in a store. The Alcohol Act requires that a person be a minimum of 18 years old to buy alcohol at a bar or restaurant but that the minimum age for buying alcohol at the Systembolaget is 20 years. (3 ch. 7 §Alcohol Act.) Systembolaget is the shop that holds a state monopoly on most kinds of alcohol. However, alcoholic beverages with less than 3% alcohol content may be sold at grocery stores, e.g. Mellanöl (beer) (2.5%) and cider.

In 2019, the Swedish Public Health Agency reported 1,938  alcohol-related deaths of persons aged 15 and above, compared to 221 deaths due to traffic-related injuries for all age groups.

The Swedish Public Health Agency has issued specific guidelines for the production of alcoholic beverages.

For more information about foreign laws on alcoholic beverages see our earlier post on 500 Year Anniversary of the Bavarian Beer Purity Law of 1516 (“Reinheitsgebot”).

Skål!

Categories: Research & Litigation

Legal Research Reports:

Law Library of Congress: Research Reports - Fri, 10/01/2021 - 11:00am

The Law Library of Congress is proud to present the report, Belt and Road Initiative.

This report covers the legal and policy frameworks that govern the Belt and Road Initiative (BRI)
(formerly known as “One Belt One Road”) in select jurisdictions and regions around the globe,
namely, China, Cambodia, Djibouti, Egypt, Greece, Kenya, Luxembourg, Malaysia, Pakistan,
the Philippines, Portugal, the Russian Federation, Sweden, Switzerland, the United Kingdom
(UK), and certain Central Asian, Caribbean, and South American countries. The BRI is a
transcontinental investment strategy and program with the aim of promoting economic
connectivity and integration in more than 100 countries in Asia, Europe, and Africa through
a large set of rail, road, and sea infrastructure projects, energy pipelines, special economic zones,
and other areas of cooperation meant to expand China’s economic and political influence. In 2015,
the Chinese government issued an official outline of the principles, framework, priorities of
cooperation, and cooperation mechanisms of the Silk Road Economic Belt and the 21st-Century
Maritime Silk Road (which together now are referred to as the BRI).


The report looks at the nature and types of agreements made by these countries, the debt
implication of some of the major projects, the extent of involvement of local companies and the
amount of job creation, and whether projects have any military or strategic purpose in addition
to commercial uses. (Aug. 21)

Categories: Research & Litigation

Orange Shirt Day

In Custodia Legis - Thu, 09/30/2021 - 8:56am

In Canada today, people are commemorating Orange Shirt Day. This July, the Canadian government passed legislation to create the federal statutory holiday called the National Day for Truth and Reconciliation– also known as Orange Shirt Day, as it was named before the federal holiday was established. Orange Shirt Day is so named because the grandmother of a little girl (Phyllis Webstad) bought her an orange shirt to wear for her first day of school. As soon as the girl got to the school, the teachers took her shirt and all her belongings and destroyed them. September 30 was the day children typically started school, and now people wear orange shirts on that day “in recognition of the harm the residential school system did to children’s sense of self-esteem and well-being, and as an affirmation of our commitment to ensure that everyone around us matters.”  This is the day that First Nations, Métis, Inuit and other Canadians reflect on the legacy of residential schools for Indigenous peoples in Canada.

Prime Minister John A. MacDonald was responsible for the formal establishment of the residential schools system in 1876. He wrote, “[t]he great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change.” The system was modeled in part on the residential school system in the United States. The Canadian government ran the schools in partnership with the Catholic, Episcopal, Methodist, Presbyterian and other churches; the government paid for the students on a per capita basis and the churches contributed to labor and some portion of the operational costs (Truth and Reconciliation Commission Report Executive Summary, p. 59 and 691). The school system operated from the 1870s to 1998; there were schools in all provinces, and it is estimated over 150,000 Indigenous, Métis and Inuit children attended the schools.

[Carlisle Indian School, Carlisle, Pa. Clothes mending class] [1901. Frances Benjamin Johnston, photographer.] Library of Congress Prints and Photographs Division.

Students at the schools were aged from four to sixteen. The Indian Act of 1920 was amended to allow the government to compel attendance for any First Nations, Inuit and Métis child (TRC ES, 69). Schools were residential “…not to educate them, but primarily to break their link to their culture and identity (TRC ES, 2).” In late 1800s and early 1900s, “most of the residential schools operated on what was referred to as the ‘half-day system’ (TRC ES, 78). This meant that teachers instructed students for a half day and the other half was spent in “vocational training” that in practice was usually manual labor meant to maintain school operations, e.g., laundry (Id.). The children were malnourished (TRC, Vol. 1, pt 2, 241). Students were punished for speaking their native languages; punishments for any infraction were severe (TRC, Vol. 1, pt. 2, 101-105). They were included in medical research without their parents’ knowledge or consent (TRC, Vol. 1, pt. 2, 220). They contracted diseases such as tuberculosis at a high frequency (TRC ES, 93). The children were physically, emotionally and sexually abused.

Many students ran away or hid, or their parents hid them, but they were often caught and returned or died in accidents while trying to run away. Generations of First Nations, Inuit and Métis children grew up being unfamiliar with family dynamics and subsequently had great difficulty raising their own children. The loss of cultural knowledge—language, ceremony, arts–was so great that the Truth and Reconciliation Commission referred to the residential schools system as “cultural genocide” (TRC ES, 1). The Commission estimated that during the span of the residential schools program, about 4,100 children died at the schools, based on death records, which are recognized as being very incomplete.

After the last school closed in the late 1990s, school survivors began to speak about their experiences, and a large number of survivors started filing suit against the churches and the government. Ultimately, on March 8, 2006, the Indian Residential Schools Agreement was issued. It is “the largest class action settlement in Canadian legal history, it was negotiated by several different parties representing Aboriginal organizations, religious orders, Indian residential school survivors, and the federal government.” The settlement agreement included a provision for the establishment of the Truth and Reconciliation Commission, and stipulated that its work would be done within five years. On June 11, 2008, the Prime Minister issued a formal apology to former students of residential schools on behalf of the government of Canada. The Commission issued its final reports and recommendations for reconciliation actions in 2015.

Kamloops Residential School Memorial, May 30th 2021. [Photo by Flickr user GoToVan. Used under CC 2.0 license.]

One might think that the settlement and the Commission’s report would allow survivors to begin to move forward. But on May 27, 2021, Tk’emlúps te Secwépemc Kukpi7 (Chief) Rosanne Casimir announced that the remains of 215 children had been discovered at Kamloops Residential School using ground-penetrating radar. More unmarked graves were located this summer: remains of 751 children were found at Marieval Indian Residential Schools, and remains of 160 children were found at Kuper Island Indian Residential School and at the sites of other schools. The discoveries have reopened wounds and conversations. As a result of these discoveries, investigations of Indigenous boarding schools here in the United States have begun as well. There were residential schools in Pennsylvania, Wisconsin, California, Colorado and other states. Tribal nations want to honor their lost members.

Resources

KE7709.J67 2018 Joseph, Robert P. C. 21 things you may not know about the Indian Act : helping Canadians make reconciliation with Indigenous Peoples a reality.

KE7704 1981 Venne, Sharon Helen. Indian acts and amendments, 1868-1975 : an indexed collection.

E96.5.L69 2014 Loyie, Oskiniko Larry. Residential schools : with the words and images of survivors / Larry Loyie with Wayne K. Spear, Constance Brissenden.

E96.5.T782 2015b Truth and Reconciliation Commission of Canada. Final report of the Truth and Reconciliation Commission of Canada. Volume one, Summary : honouring the truth, reconciling for the future.  (in footnotes as TRC ES)

E96.5.T776 2015 Truth and Reconciliation Commission of Canada. Canada’s residential schools : the final report of the Truth and Reconciliation Commission of Canada.

Union of Ontario Indians. An Overview of the Indian Residential School System. 2013. (accessed 24 September 2021).

Indian Residential Schools Settlement – Official Court Website.  (accessed 24 September 2021).

Categories: Research & Litigation

From the Serial Set: False Advertising

In Custodia Legis - Wed, 09/29/2021 - 10:30am

The following is a guest post by Elina Lee, a library technician (metadata) formally in the Law Library of Congress Digital Resources Division. Elina has previously written for In Custodia Legis on other items in the Serial Set such as NASA’s Project Mercury – A Significant Milestone and The History of the Minimum Wage

Advertising is marketing. One of the earliest forms of advertising was shouting in the market or word-of-mouth. Signs, flags, and business cards are also efficient methods for advertising products and services. A fundamental focus in regulating advertising is ensuring “truth in advertising.” This refers to prohibiting advertisements that use data or information that is not based on facts, or that induce or mislead consumers to make false judgments, whether based on facts or not.

To this end, in 1935, the Committee on Commerce considered a bill, S.5, to prevent false advertising regarding food, drink, drugs, and cosmetics (S. Rpt. 361, 74th Cong., 1st Sess., at 1 (1935) reprinted in Serial Set Vol. 9878). This bill was intended to extend the Federal Food and Drugs Act of June 30, 1906, (ch. 3915, 34 Stat. 768), known as the “Pure Food Law,” for which Dr. Harvey W. Wiley labored so long and valiantly.

According to section 601 of Senate report 361, this bill defined “the advertisement of a food, drug, device, or cosmetic as false if it is false or misleading in any particular relevant to the purposes of the bill regarding such food, drug, or cosmetic.” However, this bill did not become law.

Foods, Drugs, and Cosmetics. S. Rpt. No. 361, at 21-22 (1935), reprinted in Serial Set Vol. 9878.

A similar bill was reintroduced in the 75th Congress with the same number, S.5., in January 1937, which did become law. The issue of false advertising was given additional impetus when over 100 people died due to a new, untested sulfa drug that contained a highly toxic chemical analog of antifreeze. President Roosevelt signed the Federal Food, Drug, and Cosmetic Act on June 25, 1938, to prevent the reoccurrence of such an event. The law brought cosmetics and medical devices under the control of the government and required drugs to be labeled with adequate directions for safe use.

On August 6, 1958, in the second of a series of hearings on the extent and effectiveness of enforcement actions by federal agencies in the field of false and misleading advertising, the subcommittee concentrated its attention on claims in advertisements for weight-reducing remedies. The Committee on Government Operations had before it for consideration a subcommittee report entitled “False and Misleading Advertising (Weight Reducing Remedies).” After consideration of the report and upon motion made and seconded, the report was approved and adopted as the report of the full committee (H. Rpt. 2553, 85th Cong., 2nd Sess., at 1 (1957) reprinted in Serial Set Vol. 12081). This report was not on a bill but rather a report to the Committee of the Whole House on this issue.

False and Misleading Advertising (Weight Reducing Remedies). H. Rpt. 2553, 85th Cong., 2nd Sess., at 1 (1957) reprinted in Serial Set Vol. 12081. Photo by Elina Lee.

The report quoted veteran enforcement official, William C. O’Brien of the Post Office Department, as saying:

“Fat people want magic, simple, easy, comfortable means to lose weight and who can blame them? Every generation in my experience feels the same way. Each generation finds swindlers operating schemes to deceive and defraud them.” (H. Rpt. 2553)

H. Rpt. 2553, 85th Cong., 2nd Sess., at 2 (1957) reprinted in Serial Set Vol. 12081. Photo by Elina Lee.

Advertising is deeply embedded in our culture. As advertising and marketing grow rapidly on the internet, consumers are potentially exposed to more misleading advertisements online. The Federal Trade Commission (FTC), the United States’ consumer protection and competition agency, enforces a variety of consumer protection laws and closely examines advertising claims that can affect consumers’ health or money. On tackling the issue of truth in advertising, they expound:

When consumers see or hear an advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence.

The FTC leverages its resources and targets its enforcement efforts at practices that cause the greatest harm to consumers.

Categories: Research & Litigation

70 Year Anniversary of the German Federal Constitutional Court

In Custodia Legis - Tue, 09/28/2021 - 10:00am

On September 28, 2021, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) will celebrate its 70th anniversary. The Basic Law (Grundgesetz, GG)—Germany’s constitution—entered into force on May 24, 1949, and established a single federal constitutional court with constitutional review power. (Basic Law, arts. 92, 93.) The Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG) entered into force two years later on April 17, 1951. The court started hearing cases on September 7, 1951, and rendered its first decision on the territorial reorganization of the historical German states Baden, Württemberg-Baden, and Württemberg-Hohenzollern on September 9, 1951. The formal inauguration ceremony was held on September 28, 1951. Its seat is in Karlsruhe; the same city that the German Federal Court of Justice (Bundesgerichtshof, BGH)—Germany’s supreme court for civil and criminal cases—is located.

Building of the Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Jurisdiction

The delegates at the Constitutional Convention at Herrenchiemsee, which met from August 10 to August 23, 1948, to draft a constitution for West Germany, debated the question of whether constitutional review jurisdiction should be exercised by a supreme court, being the court of highest instance that forms part of the federal judiciary, or whether it should be exercised by a freestanding constitutional court. However, they could not reach an agreement on that question and therefore explicitly left it open to be answered by the Parliamentary Council. The Parliamentary Council, after extensive discussions that spanned several months, agreed on separating the supreme court from the constitutional court and adopted the “Austrian model.” With regard to the jurisdiction of the court, section 93 of the Basic Law states:

The Federal Constitutional Court shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

2. in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law or the compatibility of Land law with other federal law on application of the Federal Government, of a Land government or of one fourth of the Members of the Bundestag;

2a. in the event of disagreements as to whether a law meets the conditions set out in paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a Land;

3. in the event of disagreements concerning the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight;

4. on other disputes involving public law between the Federation and the Länder, between different Länder or within a Land, unless there is recourse to another court;

4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 [of the Basic Law] has been infringed by public authority;

4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 [of the Basic Law] has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;

4c. on constitutional complaints filed by associations concerning their non-recognition as political parties for an election to the Bundestag;

5. in the other instances provided for in this Basic Law.

Decisions are binding upon the constitutional bodies of the German Federation and of the German states, as well as upon all courts and public authorities. (Federal Constitutional Court Act, § 31, para. 1.) Certain decisions, in particular those concerning the constitutionality of legislation, have the force of law. (Id. § 31, para. 2.) Decisions that have the force of law are published in the Federal Law Gazette.

Selection of Judges

The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of eight justices. (BVerfGG, § 2.) In general, a candidate must be at least 40 years of age, be eligible for election to the German parliament (Bundestag), and must have stated in writing that he or she is willing to become a member of the Federal Constitutional Court. (BVerfGG, § 3.) Furthermore, each justice must have completed a legal education which qualifies him or her for judicial office pursuant to the German Judiciary Act (Deutsches Richtergesetz, DRiG).

The German Basic Law states that half of the members are elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German states). (Basic Law, art. 94.) They may not be members of the Bundestag, the Bundesrat, the federal government, or of any of the corresponding bodies of a German state. Three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years.

Unlike in the United States, the nomination of a new justice does not make the news. The justices who are chosen by the Bundestag are elected without prior debate by secret ballot upon a proposal of an electoral committee which is formed specifically for this purpose. The electoral committee is composed of 12 members of the Bundestag who are chosen from a list of candidates proposed by the parliamentary groups. To be elected, a justice must obtain a two thirds majority of the votes cast and at least a majority among the members of the Bundestag. (BVerfGG, § 6.) The members of the electoral committee are sworn to confidentiality and are not allowed to reveal the candidates’ personal circumstances, which become known to them as a result of their work in the committee, or the committee’s discussions on this issue and the casting of votes. (BVerfGG, §6, para. 4.) The justices who are chosen by the Bundesrat are also elected by a two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee. (BVerfGG, § 7.)

Once a justice is elected, he or she will be appointed by the federal president for a term of 12 years. (BVerfGG, § 4, para.1; § 10.) Justices may not be reelected and retire after their term is up or when they reach retirement age (67 years), whichever is earlier. (DRiG, § 48.)

Robes worn by the justices of the German Federal Constitutional Court. © Bundesverfassungsgericht. foto USW. Uwe Stohrer, Freiburg. Used with permission.

Further Information

The Federal Constitutional Court offers a lot of English-language information on its website, including English translations of important decisions and videos detailing its work, history, and landmark decisions.

The Law Library of Congress holds numerous materials on German law in general, including commentaries on the German Basic Law and the Federal Constitutional Court Act, as well as the decisions of the Federal Constitutional Court.

Categories: Research & Litigation

Serial Set Volumes from the 69th Congress Recently Published on Law.gov

In Custodia Legis - Tue, 09/28/2021 - 8:15am

The Law Library of Congress and the Government Publishing Office continue to collaborate on the digitization of the United States Congressional Serial Set. The Digital Resources Division is excited to share an update on the project.

This fall, the volumes of the Serial Set from the 69th Congress will be publicly accessible through both the Law Library’s digital collections and GovInfo. Out of the 15,580 volumes and approximately 12 million pages in the Serial Set, 287 volumes will be available this fall.

Screenshot of a preview of how a Serial Set PDF file will appear in the Library of Congress online catalog.

The 69th Congress spans two sessions between the years 1925 and 1927. Within these three years, congressional publications include “Art and Artists of United States Capitol,” “Declaration of Independence and Constitution of the United States,” “The World War” volumes documenting the history of World War I, and a “National Wealth and Income” report by the Federal Trade Commission. Annual reports from various agencies and organizations were also published, including from the Government Printing Office (the former name of the Government Publishing Office), Public Health Service, Boy Scouts of America, Daughters of the American Revolution, and the Smithsonian Institution. Historical events, like the enforcement of Prohibition, are also detailed in this set of volumes.

Scanned images of color maps and plates, similar to those on display in the From the Serial Set series will also be included.

The entire Serial Set digitization project is expected to last up to 10 years.

Categories: Research & Litigation

New Video – Recent Enhancements to Congress.gov

In Custodia Legis - Mon, 09/27/2021 - 12:41pm

Congress.gov is constantly improving. We do releases approximately every three weeks to enhance the website and incorporate user feedback. There is a great new video highlighting 10 recent enhancements inspired by feedback.

Watch the video below to learn what is new to the site and visit our Congress.gov Enhancement Timeline for more details.

{mediaObjectId:'CCC1672EFBC911CCE053CAE7938CEF88',playerSize:'mediumStandard'}

In addition to this video being added to the Enhancement Timeline with this release, the Congressional Record Bound edition is now available for the 63rd-65th Congresses (1913-1919).

We recently hosted a Public Forum. You still have time to submit your feedback if you were not able to attend. To keep up to date with new enhancements, subscribe to our Congress.gov Notifications email.

Categories: Research & Litigation

Celebrate the Newest Release of Herencia Documents by Participating in our Transcribe-a-thon!

In Custodia Legis - Mon, 09/27/2021 - 8:30am

In honor of National Hispanic Heritage Month, and the release of Phase 3 of our crowdsourcing campaign, Herencia: Centuries of Spanish Legal Documents, the Law Library of Congress will be hosting another entirely virtual transcribe-a-thon from today, Monday, September 27, through Friday, October 1. This event is in collaboration with By the People and the Hispanic Reading Room of the Library of Congress.

Statement concerning the services rendered by Captain Francisco Valero, from September 4, 1639 through March 17, 1671. [Ca. XVII Century].

All week, participants are encouraged to transcribe newly released documents from the collection, which contains print and manuscript documents from Spain from the 15th through the 19th centuries. Phase 3 comprises the final third of the total collection and will include four new projects for a total of over 11,000 additional unique documents in Spanish, Latin, and Catalan. Below are the four new projects representing Phase 3:

Our goal for this week’s transcribe-a-thon is to transcribe 200 pages from the newly released Miscellaneous project! “Miscellaneous” is one of the six original categories of the Spanish legal documents collection. This category was used to group a variety of subjects, which include items such as statements issued by members of the Spanish armed forces; agreements between kingdoms of Spain; records on controversies on religious ceremonial rites; statements submitted to the kings of Spain; appointments; petitions to the king; records of the inquiries; oaths of allegiance to the kings of Spain by the ambassadors of the crown; royal answers to petitions by the Catholic church; academic speeches; and letters by pretenders to the throne of Spain.

From the genealogy of noble families to declarations from the Napoleonic Wars to 17th-century documents from New Spain, there are topics to interest everyone in this varied collection. To follow some of the original research that has been conducted in the collection since the releases of Phases 1 and 2, check out some recent blog posts from our spring and summer 2021 interns.

Throughout the week, you can ask questions, learn more about this collection and past collections, and engage with us from our Twitter accounts at @LawLibCongress and @CROWD_LOC. You can also join the conversation with fellow volunteers on our History Hub page.

In the meantime, you can also learn more about transcribing this historical collection by watching our previous Herencia webinars.

Categories: Research & Litigation

Collection Highlights: Chancellor James Kent

In Custodia Legis - Fri, 09/24/2021 - 10:22am

Last September, I published a post on this blog about Joseph Story and the creation of Story’s Commentaries on the Constitution of the United States, one of the most important legal publications of Antebellum America.

This year, I thought I would continue along the same vein and highlight the Law Library’s holdings of items related to another figure in the history of law in the United States, someone who, like Story, vastly enriched legal literature in this country and whose influence over the law endured for a long time to come. My choice was very clear. It had to be James Kent.

A portrait of James Kent from the original painting by Alonzo Chappel, reprinted by Johnson, Fry & Co., New York, 1861. Library of Congress Prints and Photographs Division.

James Kent was a prominent leader in the legal profession of the 19th century who was often called “the American Blackstone.” Kent is remembered now for his authorship of the Commentaries on American Law, a bestseller in his day, which by itself made Kent very wealthy and which expanded his influence among practitioners across the country (Langbein, p. 565). Kent was in his sixties, however, when he sat down to write that book, and his professional reputation was already very well established. His career saw early success with an appointment to a lectureship in law at Columbia College, which is now Columbia University (1793-1797), as well as his election to the positions of Master in Chancery (1796) and Recorder of the City of New York (1796). He was appointed to the Supreme Court of New York in 1798. In 1804, at the age of 41, he was made chief justice of that court, a position he held for ten years. In 1814, he accepted the post of Chancellor of New York, that is, judge in New York’s court of equity, which he held until he was forced into retirement at the age of sixty. Kent was also a member of the Council of Revision, a unique institution that existed in the State of New York from the time of its institution under the New York Constitution of 1777 until its abolition by the New York State Constitutional Convention in 1821. That body, which included the Governor, the Chancellor, and Justices of the Supreme Court, remarkably had the authority to review and strike down enactments of New York’s state legislature.

James Kent’s signature appears on a manuscript of certification containing the mortgage of Enos Thompkins of New Jersey, July 31, 1797, in the Law Library of Congress Rare Books Collection. Photo by Ellie Korres.

One of Kent’s key contributions lay in the area of court reporting. In the first decades after independence, very few American courts kept a record of judicial opinions. As a judge, Kent adopted the practice of producing written opinions that cited to and argued from recognized authorities for every case he heard. He worked closely with professional reporters, especially a reporter named William Johnson, to make sure written reports of decisions from the courts he worked on became available to the public in an accurate form (Langbein, p. 584). In 1824, Johnson published reports of the Court of Chancery for the years 1814-1824, that is, for the years of Kent’s tenure.

During his judicial career, Kent also produced or contributed to a number of important legal publications. In 1800-1801, for example, the New York legislature commissioned Kent and fellow Supreme Court judge, Jacob Radcliff, to produce a recompilation of all New York State statutes. The legislature enacted their recompilation in 1801. He also revised and digested the rules and orders of the court of Chancery that his predecessor as Chancellor, John Lansing, Jr., compiled in 1815. Kent also revised and enlarged a well-received work by English politician and Barrister of the Inner Temple Sir John Mitford entitled A Treatise on the pleadings in suits in the Court of Chancery, by English bill.

Kent began work on Commentaries on American Law by revising the lectures he delivered at Columbia College in 1794. These early lectures are published in their original form and in a more expanded form. He returned to Columbia to deliver a new set of lectures in 1824-1825, after which he turned, at the urging of his son, to developing the lectures for publication in a much more ambitious format (Langbein, p. 555).

The first volume of Commentaries was published in 1826. The subsequent three volumes came out in December 1827; October 1828; and April 1830. There was almost immediate demand for a second edition, which appeared in 1832. The third edition came out in 1836, and the fourth in 1840. The fifth edition, the last to come out in Kent’s lifetime, appeared in 1844. Kent died in 1847. The work appeared in 14 editions by 1896.  The twelfth edition was edited by Oliver Wendell Holmes. Abridgements and popularizations of the work were also published even in Kent’s lifetime. By 1836, the work was translated into German. A Spanish translation appeared in 1865.

Main Reading Room. Portrait statue of James Kent along the balustrade. Library of Congress Thomas Jefferson Building, Washington, D.C. Photo by Carol M. Highsmith. Library of Congress Prints and Photographs Division.

Some commentators have noted that Kent insisted throughout his career that the law should be a learned profession, and that precedent and the common law stand at the heart of the law. At the time of American independence, the status of the English common law was debated, with some Americans objecting to its use by courts because of its English origins (Stychin, p. 440). Americans had just fought a long war to throw off English rule. Why did the courts continue to follow the laws of another nation? Others, among them James Kent, sought to demonstrate that the common law had a place, even a crucial place, in the new American legal order. Traces of this objective can be found in the way Kent analyzes common law rules throughout his Commentaries (Stychin, p. 452). Kent argued that while liberty and property rights stood on principles of natural right, courts required clear rules to resolve conflicts and to avoid arbitrary results. The common law supplies an unequalled trove of well-developed rules. American judges ought to apply them with discrimination according to the differing situation of American society, but they should also do so with an eye toward maximizing the reception of the legal heritage that English law offers (Stychin, p. 447-448).

Kent claimed that the resources that he used to write his Commentaries came largely from his private book collection, which contained approximately 3,000 titles (Langbein, p. 555, n.41). He compiled a catalog of his books in 1842, which can now be found in the Butler Library, Rare Books and Manuscript Collections at Columbia University. Most of his collection is now divided between several libraries: The Arthur W. Diamond Law Library at Columbia University holds most of Kent’s law books. The Butler Rare Book and Manuscript Collections of Columbia University also holds several hundred volumes from his library. The New York State Library in Albany holds 200 volumes of his collection. The Harvard Law Library owns five books from Kent (Langbein, p. 555, n.41).

The Law Library of Congress has a collection of 96 titles by or related to Kent in its rare books collection.

The Library of Congress holds a collection of Kent’s papers.

Columbia University Library holds a collection of Kent Family Papers.

Kent wrote an autobiographical sketch that is worth reading.

Sources:

Craven, Avery. “James Kent: A Study in Conservatism by John Theodore Horton.” The University of Chicago Law Review. Vol. 7, No. 3 (Apr., 1940), pp. 580-581.

Langbein, John H. “Chancellor Kent and the History of Legal Literature.” Columbia Law Review, Vol. 93, No. 3 (Apr., 1993), pp. 547-594.

Stychin, Carl F. “The Commentaries of Chancellor James Kent and the Development of an American Common Law.” The American Journal of Legal History, Vol. 37, No. 4 (Oct., 1993), pp. 440-463.

 

Categories: Research & Litigation

Upcoming US Law Webinars – October 2021

In Custodia Legis - Thu, 09/23/2021 - 7:30am

Next month, the Law Library of Congress will present a webinar on researching federal case law. Attendees will have the opportunity to learn about historic American legal traditions, how to use print and online resources to find court decisions, and researching court materials, including dockets and filings, to name just a few subjects.

Also in October, Law Library staff will host a webinar discussing Congress.gov. The presentation will feature some of Congress.gov’s functions, as well as recent updates to the site. More information about the content of both webinars and registration links can be found below.

Polk County Courthouse, Fifth & Court Streets, Courthouse Square, Des Moines, Polk County, IA. Documentation compiled after 1933. Historic American Buildings Survey, creator. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/hhh.ia0061/photos.068720p

Orientation to Legal Research: U.S. Case Law

Date: Thursday, October 14, 11:00 AM EDT – 12:00 PM EDT

Content: An introduction to legal sources and research techniques regarding U.S. case law research, including information about the U.S. federal court system, the publication of court opinions, methods for researching case law, and information about locating records and briefs.

Instructor: Margaret M. Wood – senior legal reference librarian. Margaret holds a BA in history from Oberlin College and a Master of Science in Library Science from Catholic University.

Register here.

Congress.gov Webinar

Date: Thursday, October 28, 2:00 PM EDT – 3:00 PM EDT

Content: This webinar provides a basic overview of Congress.gov with a demonstration of how to conduct a search and information on setting up alerts for legislation, members, and saved searches. Recent enhancements to Congress.gov will also be covered, such as the addition of historical content from the Bound Congressional Record and other updates discussed at our recent Congress.gov Virtual Public Forum.

InstructorsBarbara Bavis and Robert Brammer. Barbara is the bibliographic and research instruction librarian at the Law Library. She holds a BA in history from Duke University, a JD from the University of North Carolina School of Law, and a Master of Science in Library and Information Science with a specialization in law librarianship from Catholic University. Robert is the chief of the Law Library’s Office of External Relations. He holds a BA in political science from the University of Kentucky, a JD from Wayne State University, and a Master of Library Science from Florida State University.

Register here.

To learn about other upcoming classes on domestic and foreign law topics, visit the Legal Research Institute.

Categories: Research & Litigation

Lappkodicillen of 1751 – the Sami Magna Carta

In Custodia Legis - Wed, 09/22/2021 - 4:30pm

This year marks the 270th anniversary of the Lapp Codicil of 1751 (Lappkodicillen), a document equally relevant to Sami cross-border relations in Sweden and Norway today as it was in 1751. On September 21, 1751, the Strömstad Treaty between Norway (Denmark) and Sweden (including Finland) was signed. Norway was then a part of Denmark and in an addendum the Lappkodicillen regulated the Sami reindeer herders cross-border movements between Sweden and Norway.

Cropped Picture of the Lappkodicillen, 1751, original picture available at Riksarkivet, https://sok.riksarkivet.se/bildvisning/R0000016_00002.

Why is it called the Sami Magna Carta?

The Sami people are indigenous to Sápmi, an area that spreads across the northern parts of Norway, Sweden, Finland, and the Kola Peninsula in Russia. Although not all Sami herd reindeer, much of the regulations surrounding Sami pertain to the reindeer, including the establishment of Sami administrative areas where groups of Sami herd their reindeer (samebyar in Swedish).

The Lappkodicillen regulates a number of issues related to the migration of Sami across the Swedish-Norwegian border. In 1751, many Sami used areas that spanned Norwegian as well as Swedish land to feed their reindeer. The addendum has 30 articles, specifying how and when the Sami (referred to as “Lapps” in the text) may cross the border, specifically recognizing their right to do so in accordance with established custom (sedvana). (Article 10.) It also provided that Sami should always be considered neutral parties in a time of war. (Articles 10 and 11.) Thus, the Lappkodicillen included specific written rights for the Sami people, a first at the time of its adoption.

However, the Lappkodicillen also limited the Sami people’s freedom and specifies that the Sami have to choose whether to become Swedish or Norwegian citizens, i.e., Swedish or Norwegian Lapps, who may only own tax lands on one side of the border. (Articles 2, 4.) Prior to 1751, Sami individuals or families could hold “Sami tax lands” (referred to as lappskatteland in Swedish and Bøxel-Land in Norwegian) in both Norway and Sweden at the same time. Each country required that the Sami pay tax for such holdings to the crown. However, as specified in article 2 of the Lappkodicillen, following the adoption of the Lappkodicillen, a Sami could only hold land in one country.  Thus, the Sami had to, provided that their taxes were current in each country, pick which country to be a citizen of, and hold land in. (Article 4.)

The Lappkodicillen also set out special rules for cross-border marriages between Swedish and Norwegian Sami individuals, allowing men to change their nationality when their foreign wife had more reindeer or a tax land of her own in the other country. Otherwise, as a general rule, the wife would take the husband’s nationality. (Article 8.) This rule also prevented the Sami from, through marriage, acquiring larger tax areas that would span both countries. At the time, the Sami themselves allowed for gender-neutral inheritance rules, whereas the Swedish crown had different inheritance rules for cities and for rural communities.

Below are a number of select English translations from articles of the Lappkodicillen. (All translations by author.)

2 § No Sami person may henceforth hold [Swedish Sami tax lands or Norwegian tax lands] in more than one Kingdom, in order that all reason for commonality in subjects and land henceforth may be avoided.

4 § In case that any Sami currently hold, on both sides of the border, an old Swedish or Norwegian summer tax land, for which prior to 1742 tax has been paid to Sweden or Norway, he may have the freedom to choose which side’s subject he may henceforth want to be, provided he no winter tax land in either side holds. If he holds a winter tax land in either side, the Swedish or the Norwegian, he will belong to the side on which territory he such winter tax land holds.

8 § If a Swedish Sami marries a Norwegian Sami wife, who holds her own tax land in Norway, or has more reindeers than him, he has the freedom to, without obstacle or fee of the property, become a Norwegian Sami, provided that he report this to the Swedish [authorities] and proves such circumstances. The [Swedish authorities] must then provide him with a written permission to move and in the collection book note and from the Swedish tax him exclude. The same applies to a Norwegian Sami in similar circumstances. In other cases, the wife follows the husband.

10 § In case the Sami need access to both Kingdom’s lands, it shall in accordance with old custom be allowed to, in fall and spring, move their herds of Reindeer across the Border in to the other Kingdom, and henceforth in the same manner as the Country’s subjects, exempted at such places as below is specified, may use Land and beaches to support for their animals and themselves, where they shall be friendly welcomed, protected and aided, also during times of War, which onto the Sami regulation no changes should cause, [nor shall] the foreign Sami be exposed to plundering or any form of coercion or excessive force that the times of war bring, but always be as their own subjects considered and handled regardless of on which side they then appear as foreign.

11 § No Sami person who needs to move his animals over the border, may during times of war, any hostile action take. If he is found to have so done, he shall not be punished for acts of war, but be punished as if the action had been taken during times of peace.

Interpreting the Lappkodicillen

Whether the word “äga” (own or hold) means “to own” or “use” has been subject to interpretation over the years. While there is general agreement that during the 1800s the Swedish and Norwegian governments sought to limit the cross-border rights of the Sami, it has not been established conclusively whether at the time of signing in 1751 the Swedish and Norwegian crowns meant to recognize the use of the land as ownership similar to that of certain farmers or as simply a right to use the land (to fish, hunt, graze reindeer, set up tent etc.). Two approaches have been brought forth. Either that the tax lands were similar to certain farm land that was owned and inherited and taxed (see Kaisa Korpijaako-Labbas, Om samernas rättsliga ställning I Sverige-Finland), whereas the other view adopted by the government is that the tax was paid for the use of the land.(see e.g. SOU 2006:1 Samernas sedvanemarker..

Swedish courts have so far not recognized historic holdings of Sami tax lands as proof of ownership. However, the Swedish Supreme Court has held that in theory land used by Sami groups may create, through prolonged use, an ownership right to the land used. (Skattefjällsmålet (NJA 1981 s. 1).)

Importance of the Lappkodicillen today

The Lappkodicillen has never been repealed, and as specified in article 30, continues to be in force, as is the Strömstad Border Convention of 1751. However, several conventions between Sweden and Norway have been entered into over the years to further define the cross-border rules for the Sami reindeer herders, most recently in the Convention of 1972 between Sweden and Noway on reindeer grazing (Konventionen den 9 februari 1972 mellan Sverige och Norge om renbetning). When the 1972 Swedish-Norwegian Convention expired in 2005, the Lappkodicillen again became the main legal document to define the Sami reindeer herders’ rights to cross the Swedish-Norwegian border. A new convention was negotiated in 2009, but was never ratified by the Swedish Parliament. Reportedly, the negotiations for a new cross-border reindeer herding treaty between Norway and Sweden are ongoing.

The Norwegian Supreme Court as recently as this summer held that the Lappkodicillen governs the relationship between Norway and Swedish reindeer herders in the Saarivuoma sameby case, and that the rights established therein cannot be limited by the adoption of domestic Norwegian laws.

Where can I find the original text of the Lappkodicillen?

The Lappkodicillen is part of Sveriges Traktater med Främmande Magter, VIII, 2, pages 586ff.

The original Strömstad Treaty can also be found in digital form at the Swedish National Archives (Riksarkivet), as can the Lappkodicillen.

A print version of the text, which may be easier to read, can be found at the Sami Information Center website in Swedish and at Lovdata in Norwegian.

Categories: Research & Litigation
Subscribe to Mass Legal Services aggregator - Research & Litigation