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Research & Litigation

New Era, New Law Number

In Custodia Legis - Wed, 08/21/2019 - 9:00am

The following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and other countries in East and Southeast Asia. Sayuri has previously written posts for In Custodia Legis on various topics, including Holy Cow – Making Sense of Japanese Wagyu Cow Export RulesJapanese Criminal Legal System as Seen Through the Carlos Ghosn CaseDisciplining 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-Style, and many more.

A Japanese law is identified by an act number and a year, with numbers restarting each year.  The “year” is not the fiscal year, but the calendar year.  (Id.)  However, there are two kinds of calendar years in Japan: one is the year of the emperor era (gengo or gengou), and the other is the western calendar year (Gregorian calendar). A new gengo, the Reiwa era, commenced earlier this year when Emperor Naruhito assumed the throne on May 1, 2019.

The origins of gengo are found in ancient China.  A Chinese ruler introduced the era year system around 140 B.C.  However, China abolished the era year system after the Qing Dynasty.  Japan is the only country that still uses era years.

There is a law to regulate the emperor eras today in Japan: the Gengo Act (Act No. 43 of 1979).  Before World War II, gengo had a basis in the former Imperial Household Act.  However, the Allied Occupation abolished this Act.  The new Imperial Household Act (Act No. 3 of 1947) was enacted and replaced the old one on May 1, 1947, the day the Constitution of Japan took effect .  The new Act, however, did not have a provision concerning gengo.  Therefore, the gengo of that time, the Showa era, did not have any legal basis after May 1, 1947, until the 1979 Gengo Act (Act No. 43 of 1979) was enacted.

The Gengo Act is very short.  It has only two provisions:

  1. A gengo is set by a Cabinet Order.
  2. A gengo is changed only when there was succession of Emperors.

There is no provision that obliges the government or private persons to use the gengo year.  The Chief Cabinet Secretary Kan recently stated, before Reiwa took effect as the new gengo, that, while the custom of using the gengo year in public documents should be continued, private persons are free to use either the gengo year or western calendar year.

Coming back to the issue of act numbers, as a custom, the gengo year has been used for numbering acts in Japan.  However, when people abroad cite act numbers in English, we use the western year because it is assumed that non-Japanese, generally, do not know the gengo year. For example, the Blue Book (for legal citation) uses western years to cite Japanese statutes, regulations, and orders.

I did not realize that law number would restart after May 1, 2019, the first date of the Reiwa era,  until I read a news article about Cabinet notifications regarding the succession of emperors and then checked the Notifications themselves.  Cabinet notifications also started from number one on May 1, 2019.  This was not noticeable the last time that the eras changed.  The previous Heisei era started on January 8, 1989, but no law was enacted between January 1 and 7, 1989.

I further realized that there would be some laws and regulations with the same act numbers in 2019.  For example, act number 6 of 2019 (Heisei 31) is the Act to Amend Parts of the Income Tax Act and Other Acts, and act number 6 of 2019 (Reiwa 1) is the Act to Amend the Radio Act.

From now on, when I specify an act that has a law number between 1 and 20 in 2019, I must specify whether the year is in the Heisei era or Reiwa era.

Photo of new era Reiwa by flickr user MIKI Yoshihito (Apr. 3, 2019). Used under Creative Commons License. https://creativecommons.org/licenses/by-nc-nd/2.0/.

 

 

Categories: Research & Litigation

Research Guides In Focus – How to Find Free Case Law Online

In Custodia Legis - Tue, 08/20/2019 - 10:30am

The following is a guest post by Anna Price, a legal reference librarian at the Law Library of Congress.

We are back again to focus on the Law Library’s Research Guides. This time we are discussing another popular guide, How to Find Free Case Law Online.

Introduction page of How To Find Free Case Law Online, guides.loc.gov/free-case-law.

Until a few years ago, case law generally was not freely-available online. Researchers had to find an accessible law library and then either learn how to search a subscription database or study the library’s print collection of reporters and digests. Recently, however, various organizations have been working to make state and federal court opinions, as well as associated case materials, available electronically without charge. This guide offers clear direction on using those resources.

The guide walks users through some popular online databases, with a focus on Google Scholar, CourtListener, FindLaw, Justia, and the Public Library of Law. Each section instructs users on navigating the resource and lists its tools, coverage, and unique features that may be helpful for various researcher needs. For example, did you know that CourtListener maintains the RECAP Archive, which includes selected case and docket information from federal appellate, district, and bankruptcy courts? Or what about FindLaw’s collection of Supreme Court briefs?

As an added bonus, the Google Scholar section includes a video demonstration from Law Library of Congress employees Robert Brammer and Barbara Bavis, who show viewers how to find a case on the Google Scholar platform.

We hope you will find this guide helpful in your research. As always, if you have any questions, please contact us through Ask A Librarian.

Categories: Research & Litigation

An Interview with Alison Trulock, an Associate Archivist in the Office of Art and Archives within the Office of the Clerk of the U.S. House of Representatives

In Custodia Legis - Mon, 08/19/2019 - 1:05pm

What is your academic and professional history?

I graduated with a BA in English and worked for about five years in editorial and project management positions in the book publishing industry. I decided to go back to graduate school, intending to be a librarian. I attended the School of Information at the University of Michigan-Ann Arbor. When I started the program, I discovered the archives and records management specialization and realized that was a field that I would allow me to combine my interests in research, writing, and history. Over the summer between the first and second years of my graduate program, I interned at the Center for Legislative Archives, the unit of the National Archives and Records Administration that preserves and makes accessible the records of Congress. The Center for Legislative Archives works closely with the Clerk’s Office at the House of Representatives to manage its records. I had a great experience and came away with a desire to pursue a career working with government records.

After I completed my graduate program, I moved to Washington, D.C. for a 10-week Junior Fellowship at the Library of Congress with the Veterans History Project, hoping that during those 10 weeks I would be able to find a job in the DC area. During the fellowship, a position opened up in the Clerk’s Office in the History and Preservation Office as Archives Research Assistant. I got the job on the last day of my fellowship, which made it seem like it was all meant to be! I’ve now been in the Clerk’s Office of Art and Archives for 10 years as an archivist in positions with increasing responsibilities, and I’m now Associate Archivist.

Alison Trulock, an Associate Archivist in the Office of Art and Archives within the Office of the Clerk of the U.S. House of Representatives. Photo by Alison Trulock.

How would you describe your job to other people?

Very few days are the same in my position, which is one of the things I like most about it. My duties encompass many parts of the archives profession, from records management, to accessioning and describing records, to reference, and to outreach and education, as well as research and writing about House records for exhibitions and the office’s website and blog. A big focus of my position now is outreach to internal and external stakeholders about the value and importance of preserving the history of the institution of the House of Representatives through the records of its committees. We do that through direct outreach to the House community, as well as to external audiences through the History, Art & Archives website.

What is your favorite feature of Congress.gov?

The House Committee Hearings and Meetings Video page is a great resource. My office often gets questions about where to find these types of videos, so having them aggregated in one spot is really useful.

What is the most interesting fact you’ve learned about the legislative process and/or the legislative branch?

My favorite category of House records is petitions and memorials. Before I started working for the House, I knew that the right to petition Congress was guaranteed by the Constitution, but seeing how many petitions have been sent to Congress (it’s the most voluminous category of House records) was eye-opening. I love that petitions show all of the myriad issues for which people sought the assistance and intervention of Congress and the topics for which they advocated or fought against, and gives these people, groups, and communities a voice and representation in the history of Congress.

What has been your most memorable day at work?

One aspect of working here are the opportunities to experience history being made. This January, I had the chance to sit in the House Gallery for Opening Day of the new Congress for the first time. It was incredible to be able to have a near-front row seat for a unique House tradition and to be able to see a record number of women be sworn in as representatives.

Do you have a favorite non-partisan resource related to civics education that you would recommend to teachers and students?

The History, Art & Archives website, of course! In particular, I would recommend the Records Search feature of the site, which provides access to records of the committees of the House dating to 1789 that are accompanied by metadata and descriptions providing institutional and historical context for the document. Various types of documents are represented, including legislation, petitions, letters, maps, and photographs, on subjects teachers and students are covering in the classroom, such as women’s suffrage, the civil rights movement, and westward expansion. One of my favorite documents is a hand-drawn map of proposed mail routes for the Utah Territory from the 1860s, which I came across during research in committee records at the Center for Legislative Archives. It was neatly folded and looked like it probably hadn’t been touched since it was filed away. It’s such an interesting visual representation of the expansion of the United States and the perhaps unexpected challenges that came along with it, such as getting mail to all of the country’s far-flung residents.

We’re working on new features geared toward students and educators and adding new documents, so we encourage teachers and students to check back often.

What kind of academic and non-academic preparation would you recommend to young people who are interested in getting a job with the legislative branch?

Internships and volunteering are always excellent opportunities to get hands-on experience and figure out what you like to do, and maybe what’s not for you, too. Being well-read on a variety of issues, points of view, current events, and history can help inform what kind of role you’re interested in on the Hill and make contributions once you’re there. Develop solid communication skills, in all forms—in person, in writing, on the phone. It’s important to remember that the legislative branch is about legislation and policy, of course, but also, in a way, about customer service. Being able to listen, think critically, and respond thoughtfully to all the people you may encounter during your day is a critical job skill.

What is something your co-workers do you know about you?

I collect vintage Pyrex bowls. I have a few sets, but have to be more strategic in my collecting because I’m running out of space to store and display them!

Categories: Research & Litigation

An Interview with Haviva Yesgat, Foreign Law Intern

In Custodia Legis - Fri, 08/16/2019 - 9:00am

Today’s interview is with Haviva Yesgat, a foreign law intern working with Foreign Law Specialist Tariq Ahmad at the Global Legal Research Directorate of the Law Library of Congress.

Haviva Yesgat is a foreign Law intern at the Law Library of Congress. Photo by Kelly McKenna

Describe your background.

I am a first-generation Canadian born and raised in Montréal, Québec, Canada. My family is originally from Ethiopia. Due to my upbringing I have the privilege of speaking four languages fluently: English, French, Amharic and Hebrew.  

What is your academic/professional history?

 In 2016, I earned a Bachelor of Commerce from McGill University’s Desautels Faculty of Management, where I majored in marketing and minored in communication studies. During my time at McGill University I had the opportunity to take political science courses in Florence, Italy, at Università degli Studi di Firenze. After the completion of my first undergraduate degree I decided to pursue further studies in law at Université de Montréal, where I recently earned my Bachelor of Laws. In addition to learning about the Canadian legal landscape, I was able to spend a summer semester studying at the China University of Political Science and Law in Beijing. This provided me with a unique opportunity to learn about international and comparative law. In the fall I will commence my studies in preparation for the Québec bar examination.  

How would you describe your job to other people?

Working as an intern for the Global Legal Research Directorate entails many different responsibilities. The Law Library of Congress receives requests from the United States Congress, federal agencies, public organizations, and individuals. Under the supervision of Tariq Ahmad, I draft reports regarding various legal issues. My work has focused primarily on Canada and particular countries in South Asia. Tasks and legal topics can therefore vary from day to day, which keeps my job very exciting! As an intern I am also provided with an opportunity to contribute to the Law Library’s blog, In Custodia Legis, and the Global Legal Monitor. 

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

The Law Library of Congress offers an exceptional opportunity to interact with a diverse group of legal experts. Working here allows me to learn about different legal jurisdictions through both independent research and conversations with like-minded individuals. I strongly believe that such a collaborative and intellectual environment will help shape me into a more qualified jurist. Moreover, as an avid reader, I could not pass on the opportunity to work at the world’s largest library! Living in Washington, D.C., for the duration of my internship offers abundant opportunities. The city is home to fascinating museums and monuments. Working on Capitol Hill also enables me to attend important congressional hearings.  

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

I have been able to witness the wealth of valuable and quality resources available to legal specialists and other staff at the Law Library. As an intern I was even able to visit the Library of Congress’s African and Middle Eastern division to explore my personal interests. A reference specialist, Fentahun Tiruneh, and the Hebraic specialist, Dr. Ann Brener, cordially showed me many of the rare and impressive Ethiopian and Hebraic works housed at the Library of Congress.  

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

I’ve always wanted to ride in a hot air balloon. It’s the next item on my bucket list!

Categories: Research & Litigation

FALQs: Sweden’s Pre-Trial Detention Laws

In Custodia Legis - Thu, 08/15/2019 - 10:00am

Picture of Kronobergshäktet, Stockholm, Source: Kriminalvården, Press Pictures, used under a non-commercial license. (https://www.kriminalvarden.se/imagevault/publishedmedia/8g2pwpyro9qdo0lx7rvs/2013_141.jpg) Press Picture policy at https://www.kriminalvarden.se/om-kriminalvarden/press/pressbilder/#page=2&q=&c=[2]&s= (non-commercial)).

The Swedish detention system has been in the news over the last few weeks, including calls to change its detention system. Swedish media has also reported that the Swedish government is considering amendments to its pre-trial detention rules. So, what are the current rules?

1. Who can be detained?

Pre-trial detention is regulated in chapter 24 of the Criminal and Civil Procedural Code (Rättegångsbalken (RB) SFS 1942:740) and by the Detention Act (Häkteslag (SFS 2010:611)).

Pre-trial detention is decided by the court (one judge and three lay judges) (24 kap. 5 § RB; 1 kap. 3b § RB).

The Criminal and Civil Procedural Code provides the following:

1 §   [A person] who is, on reasonable grounds, suspect of a crime, for which a prison sentence of one year or more is prescribed, may be detained, if, considering the nature of the crime, and the suspect’s situation, or other circumstances, there is a risk that [the suspect]:

  1. will abscond or in any other way evade legal proceedings or sentencing,
  2.  will remove evidence or in another way hamper the investigation, or
  3. continues to engage in criminal activity.

If the crime carries a minimum sentence of two years imprisonment, pre-trial detention must take place, unless it is obvious that reasons for detention are missing.

Pre-trial detention may only be used if the reasons for the measure outweigh the invasion or other injury that the measure causes the suspect or any other competing interest.

If it can be assumed that the suspect will only be sentenced to a fine, detention may not take place.

2 §   A person who is, on probable cause, suspected of a crime may be detained, irrespective of the nature of the crime,

1. if he is unknown and refuses to provide a name and residence, or if the information provided can be presumed to be untrue, or

2. If he lacks a residence within [Sweden] and there is a risk that [the suspect] by leaving the country, will evade legal proceedings or sentencing. (All translations by author.)

Thus, a person who is a foreigner and lacks a permanent abode in Sweden is a presumed flight risk and can always be detained regardless of the crime.

2. Can minors be detained pending prosecution, trial, and sentencing?

Persons who have reached the age of criminal responsibility (Swedish: straffmyndig), being at least 15 years old, but who are not yet 18 may also be detained. However, in order for minors to be detained there must be extraordinary reasons (synnerliga skäl) to do so (24 kap. 4 § RB, 23 § Lag med särskilda bestämmelser om unga lagöverträdare [Act with Special Provisions on Young  Offenders](SFS 1964:167).) Extraordinary reasons are determined by weighing the age of the suspect against the seriousness of the crime (Swedish Supreme Court, NJA 2015 s 649.)  For example, a 16 year old who is suspected of murder may be detained but not a 15 year old suspected of aggravated robbery (NJA 2015 s 649 and RH 2004:61.) In 2018, a total of 150 minors were detained in Sweden.

3. What is the maximum time someone can be detained?

Swedish law does not place a time limit on pre-trial detention. However, if the prosecutor has not brought charges within 14 days a new pre-trial detention hearing must take place. (24 kap. 18 § 3 st RB.)

Sweden’s pre-trial detention rules have been criticized by both the United Nations Committee Against Torture and the Council of Europe (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)). In a report from 2016, the CPT noted that the “widespread use” of restrictions connected to pre-trial detention in Sweden results in “an almost total absence of organised activities, with most remand prisoners spending up to 23 hours per day alone in their cell, with hardly anything to occupy themselves.” (¶¶ 50-53.) The CPT has called upon EU member states generally to order less-invasive measures than detention, such as confiscating the passport if the suspect is a foreign national.

In Sweden, in 2018, 53% of all persons who were released or transferred from detention to prison had spent more than a month in pre-trial detention, one-third had spent more than two months, and 15% spent more than four months in pre-trial detention. Also in 2018, 65% of all people detained had at least one restriction placed upon them at the time of their initial detention, after one month that number was reduced to 61%. In total, close to 2,000 persons were subject to pre-trial detention in 2018.

The most common restrictions that detained persons face are restrictions on receiving visitors, using electronic communication, receiving packages, and spending time together with other detainees. This has led organizations to criticize Swedish detention as de facto isolation.

Time spent in detention will usually count towards a prison sentence, and may also count against a monetary fine, such as day-fines (dagsböter). Upon the completion of the trial, the court decides whether to release or continue to detain a defendant while it awaits the judgment of the court (24 kap. 21 § RB).

4. Can one post bail instead of being detained?

There is no possibility of posting bail for anyone in Sweden, regardless of whether you are a citizen or not.

In fact, the use of bail is uncommon among European Union member states, but there has previously been discussions about creating a European-wide bail system.

5. Are there alternatives to pre-trial detention?

Even when the conditions for pre-trial detention are met, a travel ban or reporting duty may be used as an alternative to detention (25 kap. 1 § RB). The two measures may also be combined (25 kap. 2 § RB). If a travel ban is ordered, the court may order the suspect to be available at his or her home or workplace during certain hours.

6. When does Swedish pre-trial detention cease to be proportional?

Although there is no time limit on how long a person may be detained, the detention of a person must be proportional and a lengthy detention period speaks against the detention being proportional (24 kap. 1 § 3 st RB). Thus, the Supreme Court has held that the detention must be reasonably proportional in relation to what may be gained from it (NJA 2015 s. 261) and the injury to the defendant.

For instance, in 2015, the Supreme Court, when it approved, the continued in absentia pre-trial detention of Julian Assange, explained that although it approved the continued detention, the prosecutor now had a duty to move the case forward.

In 2019, when the district court again reviewed whether a detention order in absentia of Assange was proportional, it found that it was not, arguing that because Assange could be heard without detaining him (even though he was still a flight risk) it was not proportional detain him, as the goal of the detention could be obtained with less invasive measures.

7. What if you are wrongfully detained?

If the court does not convict the accused of the alleged crime, or if a person is detained and the prosecutor does not file charges, the individual has a right to be compensated for financial losses incurred because of the detention. (2 § Lag om ersättning vid frihetsberövanden och andra tvångsåtgärder [Act on Compensation for and Deprivation of Liberty other Coercive Measures])(SFS 1998:714).) The law does not set a cap on the level of compensation.

8. Can government ministers or public officials intervene in court cases?

Government ministers are legally prohibited from intervening in court cases and in agency decisions. Such intervention is called ministerstryre. The Prime Minister and the Swedish King also do not have the legal right to, alone, pardon crimes. However, the government (Regeringen) may collectively decide (by simple majority at a government meeting) to pardon a crime (nåd) that has been adjudicated (12 kap. 9 § RF). This means that the government may relieve a person from serving a prison sentence or shorten the sentence in certain cases. The government cannot set aside any damages owed to a victim.

In addition, the government, when there are extraordinary reasons, may decide that a criminal act should not be further investigated or prosecuted (referred to as abolition under Swedish law). For example, the government decided that the terrorist attack on the West German Embassy in Sweden in 1975 should not be prosecuted.

By law, the government must consult the Swedish Supreme Court or the Swedish Administrative Supreme Court, if there are special reasons to do so. (Lag om handläggningen av nådeärenden (SFS 1974:579).) Medical reasons are the most common reason for granting clemency are medical reasons.

9. Are there any legal developments with regards to pre-trial detention in Sweden?

In 2016, the Swedish government published a government report (SOU 2016:52) on the topic of reducing the number of persons in pre-trial detention and a reduction in the use of isolation. Among other things, the report suggested adopting a cap on the time spent in pre-trial detention, being six months for adults and three months for minors. Those suggestions have yet to be proposed in a bill. On July 23, 2019, Swedish media reported that the Swedish government is looking to propose changes to the pre-trial detention rules, especially as they concern minors.

Sweden must also adopt the EU Directive 2016/800 on the on procedural safeguards for children who are suspects or accused persons in criminal proceeding, which includes rules on pre-trial detention of minors, and is in the first stages of doing so (SOU 2017:68).

10. Where can I find additional information in English?

Online

Law Library holdings

Categories: Research & Litigation

An Interview with Timofey Velenchuk, Global Legal Research Intern

In Custodia Legis - Wed, 08/14/2019 - 12:33pm

Timofey Velenchuk at the Jefferson Building. [Photo by Kelly McKenna]

Describe your background

I was born in Chernivtsi, Ukraine, and moved to the United States when I was two and a half.  I lived in northeast Philadelphia for about five years and after that moved to Warminster, in Bucks County, Pennsylvania, where I went to high school at William Tennent High School.

What is your academic/professional history?

I went to college at Penn State where I was a student at the Schreyer Honors College and where I studied economics, political science, history, and psychology.  I’ve always been fascinated by government, politics, and international affairs, and so I decided to write my Schreyer honors thesis in political science on the relationship between war and conflict and regime change in Eastern European states.

I’ve also done psychology research, specifically in how body behavior can change one’s perception of their own attractiveness and self-efficacy.  I had the opportunity to present my research at an Eastern Psychological Association Conference in New York City.  Other extracurricular activities I’ve done include serving as the treasurer for the political science honors society Pi Sigma Alpha, and working as an undergraduate teaching assistant for an economics class called “Economics of Sports.”

I’m currently a rising second year law student at Georgetown University Law Center, where I’ve taken a big interest in constitutional law, criminal procedure, and litigation.  I’m a Bradley Fellow for the Georgetown Center for the Constitution and a new member of the Georgetown Journal of Law and Public Policy.

How would you describe your job to other people?

I get to do a lot of legal research and writing in really interesting and complex areas of both United States and Eastern European law.  I love doing work in both constitutional and criminal law, and at the Law Library, have had the opportunity to conduct research on a variety of topics, including child protection and disability laws in the context of writing a Global Legal Monitor article. I love diving into and dissecting unique and complex legal questions, and I’ve been able to do just that by responding to congressional requests on foreign legal questions ranging from banking law to stare decisis. One of the projects is related to freedom of speech in the United States. I researched a variety of topics including the origins of U.S. freedom of speech law, the constitutional foundation, and case law surrounding freedom of speech.

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

I love libraries because they are a repository of knowledge.  So naturally, I was drawn to the Library of Congress.  I also wanted a summer internship where I could tackle exciting and challenging legal issues while also expanding my research and writing skills; the Law Library was able to provide a great blend of both.

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

I was surprised at the large amount of congressional and other government requests the Law Library receives on foreign legal issues.

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

I’m a former concert pianist.  I went to Settlement Music School, where I studied piano performance under Dolly Krasnopolsky, and musical theory.

Categories: Research & Litigation

Suffrage for Swiss Women – A More than 100-Year-Long Struggle

In Custodia Legis - Tue, 08/13/2019 - 9:39am

The following is a guest post by Anne-Cathérine Stolz, a foreign law intern working with Jenny Gesley in the Global Legal Research DirectorateLaw Library of Congress.

On June 14, 2019, Swiss women organized a strike to highlight the gender inequalities in Swiss society and particularly disparities in wages. This was the second time Swiss women have gone on strike. The first strike was staged in 1991 out of frustration at the lack of legislative action on gender equality, even though an equal rights article had been inserted into the Swiss Constitution ten years earlier. The movement towards gender equality has been slow in Switzerland. For example, despite early attempts to introduce women’s suffrage, Switzerland instituted political rights for women only in 1971, making it one of the last countries in the world to do so. In contrast to Switzerland’s relatively recent introduction of political rights for women, the United States guaranteed women’s right to vote in 1920. The centennial anniversary of the ratification of the 19th amendment is next year and the Library of Congress celebrates this special occasion with an exhibit on the suffrage movement currently on display.

Legal Framework

Although the Swiss Constitution of 1848 included the principle that all individuals are equal, this doctrine was not applied to gender.

The Constitution stated in article 4:

Alle Schweizer sind vor dem Gesetze gleich. Es gibt in der Schweiz keine Unterthanenverhältnisse, keine Vorrechte des Orts, der Geburt, der Familien oder Personen. (All Swiss citizens are equal before the law. There are no subordinates in Switzerland, no privileges by virtue of location, birth, family, or person.) (Translation by author).

The section on political rights in the  1848 Constitution simply stated that “Swiss citizens” have the right to vote and did not explicitly bar women from the right to vote or to stand for election. However, the prevalent legal practice at the time treated women and men differently based on their biological differences.

Article 63 of the Constitution declared that:

Stimmberechtigt ist jeder Schweizer, der das zwanzigste Altersjahr zurükgelegt hat und im Übrigen nach der Gesezgebung des Kantons, in welchem er seinen Wohnsiz hat, nicht vom Aktivbürgerrecht ausgeschlossen ist. (Every Swiss citizen having surpassed twenty years of age is allowed to vote provided that, according to the cantonal law in his domicile, he is not barred from doing so.) (Translation by  author.)

Article 64 set forth that:

Wahlfähig als Mitglied des Nationalrathes ist jeder stimmberechtigte Schweizerbürger weltlichen Standes. (Every lay Swiss citizen eligible to vote is allowed to stand for elections to the National Council.) (Translation by  author.)

Legal scholars were of the opinion that it was the intention of the writers of the Swiss Constitution to keep women from exercising political rights. (Kägi Werner, Der Anspruch der Schweizerfrau auf politische Gleichberechtigung, at 16 et seq., cited in Botschaft des Bundesrates an die Bundesversammlung über die Einführung des Frauenstimm- und -Wahlrechts in eidgenössischen Angelegenheiten, at 79.)

One strategy of women’s suffrage proponents was attempting to get the Swiss courts to change the interpretation of the articles on political rights to include women in the definition of “Swiss citizen” and “citizen.” This strategy became particularly interesting after several attempts to introduce political rights for women at the cantonal level failed at the ballot box between 1919 and 1921. In the 1920s, Léonard Jenni, founder of the Swiss League for Human Rights, sued twice on behalf of women seeking the right to vote. The Swiss Federal Supreme Court decided that customary law prevents the interpretation of the Swiss Constitution as including men and women in the articles relating to political rights and that an amendment of the Constitution was necessary to grant women the right to vote and stand for elections.

“All together now! Stop her!” Keppler, Udo J., artist. 1914. Library of Congress Prints and Photograph Division. http://hdl.loc.gov/loc.pnp/cph.3b49087.

Legislative Actions

Parts of Swiss civil society started to call for a constitutional amendment as early as 1893. In 1909, the Swiss Association for Women’s Suffrage (Schweizerische Verband für Frauenstimmrecht), the first association with the explicit goal of gaining women’s suffrage, was founded. The organization was the driving force behind the first attempt to provide women with political rights at the federal level and submitted a petition signed by 249,237 citizens and supported by the Swiss parliament. The Swiss Federal Council–the Swiss government– took no action to introduce legislation.

This reluctance by the Federal Council to act on the issue became a recurring theme over the following decades. Several attempts by Swiss parliamentarians to get the Federal Council to act were unsuccessful as well. The Federal Council continued to refuse to address the issue until 1951, when the Federal Council responded to the parliament that it was too early to introduce political rights for women. However, in the late 1950s, women’s suffrage threatened to bring down one of the Council’s priorities, the introduction of a civil protection service obligation. Women’s associations fought back against the additional civil duties without getting political rights. The Federal Council feared that the controversy could sink its proposal on the civil protection service obligation and prepared an amendment to the Constitution providing women with political rights. The Swiss parliament accepted the amendment to introduce women’s suffrage in 1958. However, in the following popular vote (in which only men could vote), the proposal was rejected 66.9% to 33%.

The next step towards women’s suffrage in Switzerland was triggered by Switzerland’s intention to sign the European Convention on Human Rights (ECHR) with reservations regarding the equality of men and women in 1968. The lack of political rights for women would have violated article 14 of the ECHR, which states:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Several women’s associations feared that the step of signing the ECHR without women’s suffrage would legitimize the lack of political rights for women under international law. (Bericht des Bundesrates an die Bundesversammlung über die Konvention zum Schütze der Menschenrechte und Grundfreiheiten, at 1142). A large demonstration was successful in demanding a second vote on women’s political rights. The subsequent proposal of the Federal Council included women’s suffrage at the federal level, but left voting at the cantonal and communal level to be determined by cantonal law. On February 7, 1971, Swiss men accepted women’s suffrage 65.7% to 34% after a more than 100-year long fight.

Cantonal Voting Rights

At the time of the vote on women’s suffrage in 1971, several cantons had already provided women with political rights, and others followed shortly after the popular vote. However, one canton, Appenzell Inner Rhodes, refused to give women the right to vote at the cantonal and municipal level, and only backed down when the Swiss Federal Supreme Court decided in 1990 that the cantonal constitution violated the equality principle in the Swiss Constitution, in particular article 4, paragraph 2, which established gender equality.

Article 4, paragraph 2 of the 1874 Swiss Constitution as amended in 1981 states:

Mann und Frau sind gleichberechtigt. Das Gesetz sorgt für ihre Gleichstellung, vor allem in Familie, Ausbildung und Arbeit. Mann und Frau haben Anspruch auf gleichen Lohn für gleichwertige Arbeit. (Men and women are equal. The law seeks equality particularly concerning the family, education and work. Men and women have the right to equal pay for equal work.) (Translation by author.)

The decision of the court ended the Swiss women’s struggle for suffrage at all political levels. In total, more than 70 votes at the federal, cantonal, and communal level were necessary to introduce political rights for women on all political levels.

Current Debate

There is an ongoing debate as to whether the main factor for the delayed introduction of women’s suffrage can be found in the Swiss tradition of direct democracy or whether Switzerland would have been late to provide women with political rights even with a more republican system given the Swiss public’s conservatism. Support for the latter hypothesis stems from the Federal Council’s inactivity and its decision to sit on the issue for a long time instead of taking a proactive role. However, there is no way to determine whether the Swiss men would have accepted the introduction of women’s suffrage earlier if the Federal Council would have pushed the issue.

Sources Consulted

Selected Law Library Resources on Women’s Suffrage in Switzerland and Around the World

Categories: Research & Litigation

American Association of Law Libraries 2019 Conference Recap

In Custodia Legis - Wed, 08/07/2019 - 1:15pm

The following is a guest post by Elizabeth Osborne, Legal Reference Librarian at the Law Library of Congress. 

Law Library of Congress exhibit booth at the 112th American Association of Law Libraries Conference [Photo by Donna Sokol]

A number of Law Library of Congress staff members recently attended the American Association of Law Libraries (AALL) 112th Annual Meeting and Conference in Washington, DC. The conference provides law librarians and legal information professionals with opportunities for education, participation in our professional organization, outreach, and networking with colleagues from all over the world.

With the conference being in Washington this year, the Library of Congress was well represented. Abigail Grotke, from the Library’s Digital Content Management Section, presented on a panel about using web archives in legal research. Laney Zhang, Jenny Gesley, Tariq Ahmad, and Nicolas Boring from the Law Library’s Glogal Legal Research Directorate presented a program about the global regulatory landscape for artificial intelligence. Andrew Weber, Natalie Buda Smith, Fredric Simonton, and Robert Brammer taught an interactive session on the topic of design thinking and web site usability, using Congress.gov as a model. Andrew Winston moderated the Members Open Forum during Monday’s General Business Meeting. While the Law Librarian of Congress, Jane Sánchez, got in on the action and hosted a program on shifting the Law Library from an operational approach to a service-oriented approach. Additionally, the Law Library sponsored a booth for the first time in the Exhibit Hall. At the booth, we provided mini-talks about our outreach, digitization, instructional, and collections initiatives. On the last day of the conference, the Law Library opened its doors for AALL attendees to tour the Reading Room, speak to our librarians, and learn about the Library.

Wendy Stengel presenting at the Law Library of Congress exhibit booth at the 2019 American Association of Law Libraries Conference [Photo by Donna Sokol]

This was my second time attending the AALL annual conference and I came away with a lot of information and ideas that will improve my work at the Law Library. I attended a fantastic session on Monday morning on the topic of designing useful and memorable hypothetical scenarios to teach research techniques, and I am already thinking of ways to use this information to enhance my classes on Orientation to Legal Research. Additionally, I got to nerd out with some fellow United States Code aficionados at the informative and lively session presented by the Office of the Law Revision Counsel and picked up some new information about the OLRC’s editorial reclassification projects.

I asked my colleagues to share their experiences and highlights from attending the conference:

Luis Acosta, FCIL Division Chief:
Tuesday morning’s program, Artificial Intelligence and Implicit Bias, focused on the difficulties of designing AI systems that avoid reflecting back the biases of their designers and users. The panelists described some ways in which AI can produce and amplify discriminatory results by relying on statistical correlations that reflect historical biases. They warned against the use of AI in critical functions like in criminal sentencing or trying to predict whether a particular criminal offender might become a recidivist. Two of the panel members were from firms employing AI to design legal research systems, and the panelists were more sanguine on the use of AI in improving legal research. AI-based legal research is less prone to user bias than the legal research methods used previously, like digests and key number systems, they argued. Nonetheless, interpreting legal language is a challenging task for AI. A machine will have difficulty determining, for example, whether a remark by Justice Scalia was sarcastic. The panelists concluded that while legal research can be improved by appropriate use of AI systems, legal analysis and application will always require human judgment.

Andrew Winston, Legal Reference Librarian:
A session that I found very informative was Do More with Less: Workplace Efficiency Tools. Presenters Mari Cheney, Anna Lawless-Collins, Ellen Frentzen, and Meg Kribble surveyed a number of productivity tools that they and their colleagues have found to be effective. These included (among others) KanbanFlow and Trello for project management; Outlook Tasks and Calendar for planning and time allocation; LibAnswers and Quest for tracking internal and external communications, compiling statistics, and building a knowledge base; and Slack and Teams for internal communications. The panel also discussed the Pomodoro Technique for periods of focus interspersed with scheduled breaks and the Only Handle it Once, or OHIO, method for managing email. The panelists closed with recommended resources for enhancing productivity: Digital Minimalism, by Cal Newport; Extreme Productivity, by Robert C. Pozen; How to Do More in Less Time, by Allison C. Shields and Daniel J. Siegel; and Scrum, by Jeff Sutherland.

Another session that provided a lot of interesting ideas was Building Strategic Partnerships: Using Outreach Between Academic, Government, and Law Firm Libraries to Maximize Value. In it, presenters Annie Mentkowski, Lindsey Carpino, and Clanitra Stewart Nejdi discussed how academic, government, and law firm libraries can build collaborative relationships to benefit their users and their institutions, as well as the profession as a whole. The panelists discussed some of the specific benefits to each type of law library that could arise from a strategic partnership with another type, as well as potential barriers to these relationships that should be considered and planned for ahead of time. Attendees worked as teams to develop an approach to a hypothetical collaboration opportunity, and shared their ideas with the audience, as well as ideas and lessons learned from their law libraries’ past collaboration efforts.

Ann Hemmens, Legal Reference Librarian:
I enjoy programs focused on very practical things learned by fellow law librarians facing a new situation. These programs provide me with strategies, resources, and examples of lessons learned that I can apply in my own work. This year I particularly appreciated the program, An Eye-Opening Look at the Challenges of Assisting Visually Impaired Patrons with Electronic Legal Research, with Rena Seidler and Susan deMaine of the Indiana University Robert H. McKinney School of Law Library. They discussed their experience teaching a blind law student how to conduct legal research on major subscription databases and free web resources. They discussed the instructor’s learning curve with the JAWS screen reader and how JAWS interacts with the databases and free web resources. It was encouraging to hear the presenter note that, among the free government websites, Congress.gov was one in particular that the student enjoyed and worked well with the JAWS reader. The presenters provided concrete information on how a screen reader works and made recommendations for drafting documents (e.g., PowerPoint presentations) to work best with a screen reader (e.g., using a number, rather than bullet, list). During the Q&A, the attendees offered additional suggestions (e.g., avoid color-coding for color blind individuals) and resources (e.g., National Library Service for the Blind and Physically Handicapped).

Categories: Research & Litigation

Maggie Kuhn and Age Discrimination Law

In Custodia Legis - Tue, 08/06/2019 - 6:46pm

Saturday, August 3, 2019 was the 114th anniversary of Maggie Kuhn’s birth. She was born to a financial executive and a stay-at-home mother (with a business school degree), both of whom valued education. Her grandmother had raised her mother and aunt while running the family store after Ms. Kuhn’s grandfather had died when the children were young. As a result, Ms. Kuhn grew up with some unconventional ideas about women and work for her time.

Elderly Japanese Women [photo by Flickr user Teo Romera Sept. 10, 2013 at https://www.flickr.com/photos/teosaurio/10137846884/ ; Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0/ ]

She earned her undergraduate degree at the Flora Stone Mather College for Women (now part of Case Western Reserve University) in French, English literature and sociology. After graduating, she went to work for the YWCA and later the Presbyterian Church, working on social issues for those organizations and advocating for “social action projects” (Kuhn, 126). During this time, she also cared for her father and mother in their old age at home until their deaths; she supervised the care of her younger brother, who had health issues, until his death.  These experiences were part of what informed her social action interests.

First White House Conference on Aging, 1961 [photo Administration on Aging (now part of Administration for Community Living), US Department of Health and Human Services]

In 1961, President Kennedy convened the first White House Conference on Aging. Ms. Kuhn attended as an observer representing her employer (Kuhn, 126). At this time, there was a groundswell of support and interest in the rights of the aged; in 1962 there were 18 million Americans over the age of 65, and many had low incomes and an inability to pay medical expenses. Part of the government’s response to concerns about aging Americans included three bills President Johnson signed in 1965: the Older Americans Act (which created the Administration on Aging, now the Administration for Community Living), Medicare, and Medicaid. In 1967, President Johnson signed the Age Discrimination in Employment Act (ADEA) into law. The ADEA “prohibits employment discrimination against persons 40 years of age or older.

Ms. Kuhn, who had always pursued issues related to women’s rights during her career, became more active in the pursuit of equality for elders as well after her conference attendance and her personal experiences with aging in this milieu. In February 1970, her employer told her their mandatory retirement policy required her to retire on her 65th birthday. She decided she would make use of her time with a secretary and a photocopier in her remaining period of employment (from February to August) to form the organization that would become the Gray Panthers with colleagues who had also experienced forced retirement (Sanjek, 18). The mission of the Gray Panthers was  ‘”action on public issues'” (Sanjek, 20). Over the years they engaged in a broad spectrum of social environment issues that extended beyond the rights of older persons.  One of their greatest successes in achieving rights for older persons was their lobby against the mandatory retirement age, which was raised to 70 in 1978 and abolished in 1986 (with a few exceptions). The Gray Panthers, led by Kuhn, also pushed for health insurance protections for older persons and for shared housing initiatives. She continued to work with the Gray Panthers, traveling, protesting and speaking, until her passing at age 89 at home in Philadelphia.

One in five people in the United States will be 65 or older by 2030. The future is us, but greyer. Maggie Kuhn said, “The human life span has almost doubled since the turn of the century. The challenge is, what are you supposed to do with that when you’re supposed to retire halfway through life?” The ADEA has opened our options.

Bibliography

HV28.K77 A3 1991 Kuhn, Maggie. No stone unturned : the life and times of Maggie Kuhn.

HQ1064.U5 S265 2009 Sanjek, Roger. Gray Panthers.

HV1457.N482  Network (Gray Panthers Project Fund). Network.

WMLC 93/355 Gray Panthers network.

Gray Panthers Records.

KF3464.G743 2014  Gregory, Raymond F.  The Civil Rights Act and the battle to end workplace discrimination : a 50 year history.

K1770.A94 2013 Selmi, Michael, ed. Age and equality law.

Categories: Research & Litigation

The Changing Nature of UK Divorce Law

In Custodia Legis - Mon, 08/05/2019 - 2:36pm

The following is a guest post by Kathryn McNickle, a foreign law intern working with Clare Feikert-Ahalt in the Global Legal Research DirectorateLaw Library of Congress.

The Divorce, Dissolution and Separation Bill has begun to make its way through the House of Commons, where it enjoys cross-party support. If passed, it will make it much quicker for couples in England and Wales to have “no-fault divorces”, by removing required separation periods of at least two years, as well as removing the possibility of one partner challenging the decision to divorce. The bill will also introduce a minimum time frame of six months for the divorce process. The hope is that these measures will remove some of the conflict from the procedure. It is expected the changes will also apply to civil partnerships. The bill marks the latest in a progression of changes making separating easier for both parties.

Divorce law has evolved over the past three hundred years. Before 1700, there was virtually no means of divorcing in England; despite the reputation of much married Henry VIII, England remained the only Protestant country in Europe not to allow divorce (terminating a marriage to allow remarriage within the lifetime of the other spouse). The Church of England did allow separations a mensa et thoro, but these did not allow remarriage and were only granted in cases of adultery.

Parliament decided that the dissolution of existing marriage came under its remit in 1700. However, divorces were only granted in cases where the woman had committed adultery, unless the husband’s adulterous actions were “compounded by life-threatening cruelty,” such as incest. Between 1700 and 1749, only fourteen divorces were granted, which gradually increased, with 193 divorces obtained between 1800 and 1857. It was very expensive to get a divorce through Parliament and, as such, was generally an option only for the wealthy.

Houses of Parliament, London, England. [Between 1890 and 1900] [Photograph] Library of Congress Prints and Photographs Division, https://www.loc.gov/item/92518894/.

Following extensive Parliamentary debate and a Royal Commission, the Matrimonial Causes Act was passed in 1857. It created a court to grant divorces under similar circumstances as Parliament; a husband had to prove the wife’s adultery, while a wife could only obtain divorce if there was adultery alongside another offense, such as cruelty or desertion. This “double standard” was justified by fears that a child borne through adultery could inherit the husband’s property and by claims that women were naturally less lustful and therefore any adultery was more “sinful.”

Even after moving the power to the courts, rather than Parliament, access remained restricted to the wealthy, and England’s divorce rate remained very low compared to countries like the US. However, the Matrimonial Cause Act of 1878 enabled women to get protection from physically abusive husbands, although this was a judicial separation, not a divorce.

Dissatisfaction with the 1857 Act was soon apparent, but it was not until after World War I that the Matrimonial Causes Act 1923 made adultery by either party the sole ground for divorce. This was not just due to women’s increasing emancipation, but it was seen as a leveling-up of morals and aimed to prevent sinfulness amongst men. The bill was hotly debated, with arguments made that it would lead to a state of “camouflaged polygamy and polyandry.” Regardless, the bill passed, removing the double standard of previous legislation.

The Matrimonial Causes Act 1937 was a Private Member’s Bill put forward by satirist and MP, A. P. Herbert. As marriage began to be seen as a partnership of equals, the Act widened the grounds for divorce to include unlawful desertion for three or more years, cruelty, and incurable insanity. However, concessions were made to traditionalist pressures, such as an outlawing of divorce in the first three years of marriage, with some judicial discretion. Although divorces remained expensive, they rose significantly in number following the passing of the Act, although this was also associated with the effects of World War II.

The Divorce Reform Act 1969 made the sole ground for a petition of divorce, presented by either party, that the marriage has broken down irretrievably. This could be shown by one or more of four “facts”, adultery by either party; behavior from the respondent such that the petitioner could not reasonably be expected to live with them; desertion for two years; and separation for either two or five years, depending on whether both parties consent to the divorce. This bill was also subject to heated debate, labelled “Casanova’s Charter” by detractors who argued it would allow men to marry and leave an “innocent” wife in a perilous financial situation every five years. The Act passed, despite the controversy surrounding it, and again the number of divorces rose following the changes, with adultery and unreasonable behavior particularly being used to show an irretrievable breakdown of the marriage.

The Civil Partnership Act of 2004 allowed same-sex couples many of the same rights as married couples. The grounds to dissolve a civil partnership were largely similar to the grounds recognized in the Divorce Reform Act 1969. However, adultery was not one of the facts that could be used to show irretrievable breakdown, as adultery is defined as sexual intercourse between partners of the opposite sex. More recently, marriage has been opened up to partners of the same sex, while heterosexual couples will be able to obtain civil partnerships.

The Divorce, Dissolution and Separation Bill was introduced by the Government on June 13, 2019, following the Owens v. Owens case last year, in which the Supreme Court refused a divorce to a woman because her husband opposed it. Debates on the Bill have already raised concerns from some MPs that it will make getting a divorce too easy. The Justice Minister has admitted he expects to see a short-term spike in divorces but argues the reforms will make divorce law fit for the 21st century by removing the requirements to blame one party or wait up to five years.

Categories: Research & Litigation

Legal Research Reports: Limits on Freedom of Expression

Law Library of Congress: Research Reports - Fri, 08/02/2019 - 9:17am

The Law Library of Congress is proud to present the report, Limits on Freedom of Expression.

This report examines the scope of protection extended to freedom of speech in 13 selected countries. In particular, the report focuses on the limits of protection that may apply to the right to interrupt or affect in any other way public speech. The report also addresses the availability of mechanisms to control foreign broadcasters working on behalf of foreign governments. The terms “freedom of speech” and “freedom of expression” as used in this report are interchangeable.

This report is one of many prepared by the Law Library of Congress. Visit the Comprehensive Index of Legal Reports page for a complete listing of reports and the Current Legal Topics page for our highlighted and newer reports. 

 

Categories: Research & Litigation

Egyptian Gazette – Pic of the Week

In Custodia Legis - Fri, 08/02/2019 - 8:39am

al-Jarīdah al-rasmīyah, v. 61, no. 51, Suppl. (23, December 2018). Photo by Betty Lupinacci

Random page from al-Jarīdah al-rasmīyah, v. 61, no. 51, Suppl. (23, December 2018). Photo by Betty Lupinacci

 

 

 

 

 

 

 

 

 

 

 

 

 

Today’s Pic of the Week is a resolution, contained in a special supplement to the official gazette of Egypt, that can be roughly translated as a resolution from the Prime Minister, “Issuing the Administrative Regulations for the Law Concerning Persons with Disabilities.”  There’s something different about this document, however — it is an Arabic legal document printed in braille.

This is the first time any of us in the Collection Services Division recalls seeing an official foreign government document printed in braille.  And so it sparked a lot of curiosity among staff.

As the Egyptian gazette is a title that currently gets preserved overseas on microfilm, we will have to arrange for alternative housing for this document to maintain its legibility for future patrons.

Categories: Research & Litigation

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