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Research & Litigation

Research Guides In Focus – Compiling a Federal Legislative History: A Beginner’s Guide

In Custodia Legis - Thu, 07/11/2019 - 8:30am

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

Back in May, in honor of Law Day, we introduced you to our new Research Guides service, using the LibGuides platform, where you can find research guides the Law Library has assembled on a variety of topics. Because we are frequently asked research questions related to congressional hearings, committee reports, and debates of Congress, today we are highlighting Compiling a Federal Legislative History: A Beginner’s Guide and the helpful tips and strategies found within it.

Introduction Page of Compiling a Federal Legislative History: A Beginner’s Guide, guides.loc.gov/legislative-history.

Digging through federal laws and legislative history can be overwhelming, even for the advanced researcher. But the Law Library is here to alleviate that fear! The “Compiling a Federal Legislative History: A Beginner’s Guide” research guide walks users through the search strategies one may take, beginning with explaining how to learn if a given law has changed over time by using information in the U.S. Code to navigate public laws in the Statutes at Large.

Understanding that many researchers want to glean more information about legislative intent, the research guide also provides information about other legislative history resources, including committee reports, debates of Congress, and presidential communications, among others. Additionally, each section lists resources where documents can be accessed either for free online, or through the Law Library’s print collection or electronic subscription databases.

Please enjoy browsing through “Compiling a Federal Legislative History: A Beginner’s Guide.” We hope it helps you with your research. If you have any questions, please contact us through Ask A Librarian.

Categories: Research & Litigation

New Report on the Regulation of Artificial Intelligence

In Custodia Legis - Wed, 07/10/2019 - 10:00am

Everybody seems to be talking about artificial intelligence (AI). Some people laud its possibilities, whereas others envisage nightmare scenarios where robots take over. But what is AI exactly and how are countries dealing with it?

Artificial Intelligence. Photo by Flickr user 6eo tech. Jan. 26, 2019. Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0.

The Oxford Dictionary defines AI as “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.” In a recently published report, ”Regulation of Artificial Intelligence,” the Law Library of Congress looks at the emerging regulatory and policy landscape surrounding AI, including guidelines, ethics codes, and actions by and statements from governments and their agencies, in jurisdictions around the world. An international part deals with approaches that United Nations agencies and regional organizations have taken towards AI. The country surveys look at various legal issues, including data protection and privacy, transparency, human oversight, surveillance, public administration and services, autonomous vehicles, and lethal autonomous weapons systems (LAWS). However, the most advanced regulations were found in the area of autonomous vehicles, in particular for the testing of such vehicles. The report includes three maps on national AI strategies, a country’s position on LAWS, and the testing of autonomous vehicles. As the regulation of AI is still in its early stages and constantly evolving, this report offers a snapshot of the legal situation at the time the report was written (January 2019). Updates will be provided on the Global Legal Monitor (GLM) website.

If you are attending the 112th Annual American Association of Law Libraries (AALL) Conference in Washington, D.C. from July 13, 2019, until July 16, 2019, and want to know more about the regulation of AI, we recommend attending our program “The Age of AI: Emerging Regulatory Landscape Around the World” on July 15. Don’t forget to also check out the other presentations by Law Library of Congress staff.

You can search the Current Legal Topics or Comprehensive Index of Legal Reports for additional reports from the Law Library. To receive alerts when new reports are published, you can subscribe to email updates and the RSS feed for Law Library Reports (click the “subscribe” button on the Law Library’s website).

Categories: Research & Litigation

New Secure Storage Facility for Law Library’s Rare Materials — Pic of the Week

In Custodia Legis - Fri, 07/05/2019 - 9:00am

Jennifer Davis and Nathan Dorn contributed to this post.

Principal Deputy Librarian of Congress Mark Sweeney (left), and Chief of Prints and Photographs Division Helena Zinkham (right) join Law Librarian of Congress Jane Sánchez as she cuts the ceremonial ribbon to open the Law Library’s new secure storage facility on June 28, 2019. Photo by Donna Sokol.

On Friday, June 28, 2019, the Law Library held a ribbon-cutting ceremony to open a new secure storage facility that will be home for much of the Law Library’s rare book collection. The Law Library currently stores some of its rare collection in a smaller vault as well as storing some of its rare materials in space borrowed from other divisions at the Library of Congress. Consolidating the collection improves collection security and access.

Helena Zinkham makes a ceremonial donation of the first book for the new vault to Nathan Dorn, the Law Library’s rare book curator. Photo by Geraldine Davila Gonzalez.

The secure storage facility differs from our existing vault in a few important ways: it has over 9,000 linear feet of shelving; it has modern compact shelving; and it has state-of-the-art cooling, humidification, fire retardation and security systems.

This new storage facility has about 4 times more shelf space than the existing vault contains. The temperature of this vault hovers between 50 to 55 degrees Fahrenheit–better than the Law Library’s current vault shelving space, which generally stays at 65 degrees. Relative humidity is very important for storing rare books in particular, and the relative humidity for this room is ideal. The Library can now store its manuscripts, incunables and other very rare and special materials in this modern facility knowing they are in the very best conditions possible. The vault has two rooms, with one room dedicated to holding Prints & Photographs Division collection items.

Thanks to the large size of the vault and the maximization of its shelving capacity, we will have space for growth as the Law Library continues to build its rare law book and manuscript collection. We are excited to consolidate collections and populate this room!

Categories: Research & Litigation

An Interview with Samantha Winslow – Library Technician

In Custodia Legis - Wed, 07/03/2019 - 3:41pm

Samantha Winslow (photo by Betty Lupinacci)

Today’s interview is with Samantha Winslow, our newest technician in the Collection Services Division.  Samantha was with us previously as a contractor and she decided to join our staff when the opportunity arose.  We are certainly glad that she did!  She brings with her a whole host of library and language experience.

Describe your background.

My mother was an English teacher and a technical editor from a Jewish family in Queens, New York City, and my father was a Vermonter from the Silent Generation, a WWII veteran, and a civil engineer who studied at MIT and Berkeley. My older sister followed in his footsteps in her pursuit of science and attended MIT and GW for microbiology and forensic science.  We all love books and reading. My interests gravitate toward art and nature, as well as learning about how people live across the world and across time.

What is your academic/professional history?

After high school I attended St. John’s College in Annapolis, Maryland and studied classics. I had already studied Latin for five years, and there I studied Ancient Greek for a year. My interests are broad and the world is wide, so I decided to transfer to George Mason University and majored in sociology. I also had the opportunity to study Italian and sociology in Florence, Italy for a semester. In 2006, a high school friend contacted me and asked if I would be interested in working with her on a contract at the Library of Congress, and I jumped at the opportunity. I was hired as an inspector for the Baseline Inventory Project (editor’s note: this, as well as subsequent projects, involve inventorying volumes into the Library’s catalog). I loved working in the Jefferson Building for the architecture and seeing all sorts of unexpected old books from the General Collection. Over the years, BIP became RHIP, Retrospective Holdings Integrity Program, and I helped transfer materials to the new Ft. Meade storage facility. Meanwhile, I took courses online at FIT (Fashion Institute of Technology) in New York for fashion merchandising management, and held a variety of service and marketing jobs. After a few years away from the Library, I joined another contract on the CAMPI project (a collections processing and maintenance contract) in the Law Library, checking in new acquisitions. Then I worked on the NAP project in the Adams Building, processing books to transfer to Cabin Branch (the Library’s newest high density storage facility.) Now I’ve come back to the Law Library as a federal employee and I am working in the stacks doing collections and catalog maintenance and retrieving and delivering patron requests.

How would you describe your job to other people?

I go on daily scavenger hunts in the sub-basement of the Madison Building to find legal materials for Congressional patrons and the public. Then I help ensure they are safely stored where they can be found again.

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

The scope of the collection is amazing. I especially like that I can “walk around the world” and access so many books from so many countries, in so many languages.

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

There are almost 60 miles of shelves in the stacks.  Finding a book for a patron can be like searching for a needle in a haystack!

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

I attended beauty school to become certified in nail technology, and have taken yoga teacher training to maintain my health. I love to learn vocabulary from different languages. I’ve studied Spanish, Japanese, Korean, Mandarin, Dutch, German, and French. I don’t speak these languages but I like to be able to decipher them when I see them in books! My guilty pleasure is Korean pop music, particularly girl groups. My co-workers probably already know this, but I feel I should mention that I have four cats and they are great company.

Categories: Research & Litigation

Law Day 2019 Event Recap: “Free Speech, Free Press, Free Society”

In Custodia Legis - Tue, 07/02/2019 - 2:40pm

Law Librarian Jane Sanchez interviews American Bar Association President Bob Carlson for Law Day, May 1, 2019. Photo by Shawn Miller.

On May 1, 2019, American Bar Association President, Bob Carlson, visited the Library of Congress in celebration of this year’s Law Day for an interview conducted by Law Librarian of Congress, Jane Sánchez. This year’s topic, “Free Speech, Free Press, Free Society”, focused on these cornerstones of representative government and called on society to understand and protect these rights ensuring, as the U.S. Constitution proposes, “the blessings of liberty for ourselves and our posterity.”

Law Librarian Jane Sanchez interviews American Bar Association President Bob Carlson for Law Day, May 1, 2019. Photo by Shawn Miller.

In their conversation, Bob Carlson discussed on the limits of free speech in a democratic society, the value of protecting all speech, even if unpopular or hurtful, the differences between speech and the press, and what it mean to have a free society. He also dove into modern practices in free speech explaining how social media and free speech intersect and contemplated whether free media translate into a free society. Throughout the discussion, Bob Carlson also spoke about the limits of free speech and the moments where a citizen can be held accountable for their words. To watch the entire conversation, please visit the link below for a video of the event.

 

 

Categories: Research & Litigation

On this Day: 40 Years of Prohibition on Disciplinary Corporal Punishment of Children in Sweden

In Custodia Legis - Mon, 07/01/2019 - 3:13pm

Lag om ändring i föräldrabalken [Law on Changes to the Parental Code] Svensk författningssamling [SFS] 1979 no. 122, available in Svensk författningssamling, https://lccn.loc.gov/40033946. Photo by Kelly McKenna.

Given the Law Library’s abundance of resources, I like to scroll through old law books and look at what laws passed, or entered into force on that date in any given year. On this day, July 1, 1979, Sweden became the first country in the world to explicitly prohibit disciplinary corporal punishment of children by their parents. (Lag om ändring i föräldrabalken [Law on Changes to the Parental Code] SFS 1979 no. 122.)

Years earlier, in 1958, Sweden had prohibited corporal punishment as a form of disciplinary action in Swedish public schools, preschools, after care institutions, and the like. That legislation was inspired by Norwegian law.

Since 1979, all corporal punishment of children has thus been forbidden in Sweden. This means that corporal punishment is viewed as criminal assault, depending on the severity of the actionas there is no exception (defense) of parental discipline. The explicit exception for “aga” (disciplinary violence) was removed from the Criminal Code in 1957.

The explicit purpose of the revised language was to make it clear that any action taken against a child, that would constitute an assault against an adult, would likewise be an assault against a child, and thus illegal. (Compare prop. 1978/79:67 s. 31 f. )

History and Timeline of the Prohibition on Disciplinary Corporal Punishment of Children in Sweden

14 kap. 16 § Strafflagen [Penal Act](SFS 1864:11), available in Svensk författningssamling, https://lccn.loc.gov/40033946. Photo by Kelly McKenna.

  • 1864 – A new Penal Act (Strafflagen) is passed and corporal punishment of children by their parents was expected, and indeed required, when the child had committed a crime and had not otherwise attained the age of criminal responsibility (i.e. was younger than 15)
    (5 kap. 1 § Strafflagen [Penal Act] 1864 no. 11.) At this time, disciplinary actions performed by a person (generally the father) against people who were under his command were considered a right (rätt att aga). This included disciplinary reprimands of wives, children, as well as women and men who worked at your farm (and thereby were part of your household unit). Such disciplinary violence was explicitly exempt from liability under the Penal Code. (14 kap. 16 § Strafflagen.)
  • 1902 – The specific duty to discipline your child with the use of corporal punishment discipline was removed.
    (5 kap. 1 § Strafflagen.)
  • 1949 – A Parental Code passed, requiring that parents discipline their children as they see fit. (6 kap. 3 § Föräldrabalken 1949:381.)
  • 1957 – The explicit liability exception in the Penal Code for actions that constituted “aga” (disciplinary violence) was removed. By eliminating the provision, corporal punishment of children was no longer automatically excused.

    Lag om ändrad lydelse av 6 kap. 3 § och 15 kap. 14 § föräldrabalken [Law on Changes to the Parental Code of 6 ch. 3§ and 15 ch. 14 § Parental Code] Svensk författningssamling [SFS] 1966 no 308, available in Svensk författningssamling, //lccn.loc.gov/40033946. Photo by Kelly McKenna.

    Prosecutors who had previously been of the opinion that only the most egregious cases of corporal punishment of children could be prosecuted now had to make a determination of whether the discipline constituted assault. (Prop. 1957:170.) By this time, head of households did not have a right to corporally discipline farm workers who lived on their farm but parents still had a right to discipline (tukta) their children and teachers had the same right to discipline their pupils.
  • 1966 – The Parental Code (SFS 1966:308) was revised to mandate that parents must keep their children under “erfoderlig uppsikt” (necessary supervision) – i.e. the code no longer required that they discipline them. However, Swedes in general were confused over what this meant and many believed that the language included a duty to discipline their children using physical force.
  • 1979 – A specific prohibition on corporal punishment of children was included in the Parental Act (SFS 1979:122).

Text of the 1979 provision (6 kap. 3 § Föräldrabalken [FB], translation by author):

Guardians must perform such supervision over the child that  is needed in consideration of the child’s age and other circumstances.

The child must not be subjected to physical punishment or other demeaning treatment.

What kind of corporal punishment was prohibited by the 1979 provision?

In short, all. The legislative text explicitly exemplified hitting a child’s hand to prevent it from touching something (SOU 1978:10 at 29), and meant that any such violence “was inappropriate and that such means of discipline could not be used.” However, such violence is not criminalized under the Swedish Criminal Code as assault requires that there is a either “bodily injury, illness, or pain” (3 kap. 5 § Brottsbalken(BrB) [Criminal Code].) For example, hitting someone with an open hand in the face is considered a minor offense.

The legislator, who wanted to protect children from physical harm, discussed multiple approaches, including informational campaigns via the media and the pediatricians offices before settling on the explicit prohibition language (SOU 1978:10 Barnens rätt 1. Om Förbud mot aga, at 21-22 ).

Case Law 

Isolated Instance of Corporal Discipline = Minor Offense

In 2003, the Swedish Supreme Court (NJA 2003 s. 537) declared that one isolated instance of corporal punishment that only caused minor harm to the child is considered a “ringa brott” (minor offense) and thus not subject to imprisonment, and can only be punished with monetary day-fines (compare 3 kap. 5 § BrB). In the specific case, the mother, angry that the child had repeatedly misbehaved in school, hit him with a wooden spoon eight times.

In 2017, the Swedish Supreme Court (NJA 2017 s. 1129) again reviewed the boundaries between what is considered misshandel (assault) and ringa misshandel (assault - minor offense) in relation to disciplinary violence against children.  Following the case in 2003, the legislator had included new aggravating circumstances in the criminal provision (29 kap. 2 §BrB) that were meant to guide judges when determining whether the act was a minor offense or a crime “in the normal degree.” 29 kap. 2 § 8 BrB, provides that actions “intended to harm the confidence and trust of a child in its relationship with a family member” are aggravating. The court found that the language used by the legislator meant that violence against children was now further prohibited and the fact that it was directed at children, could already at this stage influence the level of crime. However, the court found that one isolated instance of hitting a child with a belt did not, even together with the new provision, qualify as assault, but as assault in the lesser degree.

Repeated Disciplinary Violence – Defenses

As recently as in February of this year, a Swedish resident received a straffrabatt (mitigated sentence) and was sentenced to time served, because the courts determined that she was not aware that disciplinary violence against children was unlawful in Sweden. In that case, the court found that there were extraordinary circumstances surrounding her ability to find out that the act was criminalized as she was illiterate and had immigrated from a part of the world where corporal punishment of children was common.

Is it a Crime Also Outside of Sweden?

Yes, the European Court of Human Rights (ECtHR) has said that withdrawing parental rights in response to continuous caning (beating the child with a cane) does not violate article 8 of the European Convention on Human Rights (ECHR). Inhumane and degrading treatment of children is explicitly prohibited in article 3 of the ECHR. In 1998, the ECtHR found that corporal punishment by a parent violated that article. The Council of Europe provides an overview of the general framework and the ECtHR’s case law on corporal punishment of children on its website.

Other sources on Children and Corporal Punishment:
The Punishment of Rebellious Children and Witches

If you are interested in the Law Library’s Swedish law collection please consult my blog post on the topic, or the Library of Congress overview of the Swedish collection.

Categories: Research & Litigation

Spanish Legal Documents (15th – 19th Centuries): Canon Law

In Custodia Legis - Thu, 06/27/2019 - 10:00am

Statement issued by Jacinto Ferrando Arriola, Canon of the Holy Metropolitan Church of Saragossa, Examiner of Curates and Confessors and Judge of the Tribunal of La Cruzada of the city of Saragossa, concerning members of the Bishopric of Albarracin’s obligation to pay certain taxes called “diezmos” [i.e. one tenth] for pasturage rights. [November 26, 1734].

The following is a guest post by Stephen Mayeaux, Legal Information Specialist in the Digital Resources Division at the Law Library of Congress. 

Today we bring you the latest update from our Spanish Legal Documents series. For more information about the history of this collection, as well as our ongoing work to make it fully available online, see our introductory post describing the Opinions & Judgments subsection.

As a reminder, the collection is divided into six categories:

Our second published subsection is Canon Law, which in this area of the collection refers to the ecclesiastical law enforced by the Catholic Church in 17th–19th century Spain (and Spanish colonies in the Americas). This subsection of 107 documents includes papal decrees, issuances by provincial bishoprics, opinions of legal scholars of the Church on a range of issues, briefs concerning cases before the Church, jurisdictional agreements between bishoprics, and statements concerning vicariates in the Americas.

While much of this material might be of primary interest to theologians, seminarians, or other scholars of Church history, this subsection also deals with many ordinary and familiar legal topics (such as marriage and taxes), and, has even been embraced by popular meme culture.

For a closer look at a well-known chapter in European history, see the 1767 order by the Zaragoza Tribunal of the Spanish Inquisition. Even though the Spanish Inquisition was declining in power by the end of the Age of Enlightenment, it nevertheless appears to have been interested in investigating crimes against the Catholic faith into the latter half of the 18th century. This announcement to the citizens of Zaragoza in the Kingdom of Aragon lists several acts considered crimes and heresies according to the Inquisition, and asks citizens with knowledge of these crimes to come forward to the Inquisitors. Among the heretical acts and persons described in this document are: practitioners of a mystical form of Christianity (“Secta de los Alumbrados”), persons who act against or deny the teachings of the Church, persons engaging in Jewish prayers and rituals, as well as followers of Islam (“Secta de Mahoma”) and Lutheranism (“Secta de Lutero”).

Order issued by the Tribunal of the Holy Inquisition, dated March 20, 1767, concerning crimes committed by persons not belonging to the Roman Catholic faith.

With four more subsections (and the majority of the 2,400+ documents in the collection) still left to share, we’ll continue to update you over the next several months as additional parts of this collection are made available.

Categories: Research & Litigation

An Interview with Chris Ehrman, Digital Project Coordinator at the Law Library of Congress

In Custodia Legis - Wed, 06/26/2019 - 2:14pm

Chris Ehrman is a Digital Project Coordinator at the Law Library of Congress. Photo by Kelly McKenna.

Describe your background.

I grew up in Salt Lake City, Utah, where I enjoyed taking advantage of hiking, biking, and national parks. Since finishing college, I have lived in Iowa; Montana; Brussels, Belgium; Washington, D.C.; and Virginia.

 What is your academic/professional history?

I attended the University of Utah and tried many majors before graduating with a B.A. in History. While going to school, I worked at the Salt Lake Public Library in multiple roles. I also worked at the University of Utah Multimedia Archives on digitization projects. I attended library school at the University of Iowa as an IMLS Digital Librarianship Fellow, working on different digitization projects each semester for the Iowa Digital Library. After graduate school, I worked as Project Coordinator for the Montana Historical Society’s National Digital New Program (NDNP) grant. In 2011, I became a Digital Conversion Specialist in the Library of Congress’s Serial and Government Publications Division working on the National Digital Newspaper Program. In this position, I ingested content into Chronicling America, assisted state partner institutions with their awards, and worked on digitization projects of other divisions . In April of this year, I was hired as a Digital Project Coordinator in the Law Library to manage the digitization of the United States Congressional Serial Set.

 How would you describe your job (or research project) to other people?

I am the project coordinator for digitizing the United States Congressional Serial Set. The Serial Set is a collection of over 14,000 volumes of the reports and documents of the United States Congress. The scope of this project is to digitize the Serial Set volumes published from the 15th through the 103rd Congress, spanning the years 1817-1995. Serial Set volumes contain congressional documents, reports, and also executive branch material. These include reports on the Perry Expedition to Japan, reports on meteorological observations, and the registration of patents. The collection will be made available to the public through the Library of Congress website. Currently, I work with colleagues at the Law Library and Government Publishing Office to develop digitization specifications, workflows, and ensure that the volumes selected for digitization are complete.

 Why did you want to work at the Law Library?

I was excited to work at the Law Library because my interest in historical newspapers aligns closely with the Serial Set digitization project.  Just as newspapers are important primary source records that reflect American life, the Serial Set consists of primary source documents containing the legislative history of our nation.  Digitizing the legislative record unlocks opportunities for the public to access primary resources used by historical Congresses and researchers to analyze this corpus, including through computational methods.

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

I continue to be surprised by the breadth of the collections within the Law Library of Congress. There is always something new to discover, such as the Spanish Legal Documents collection containing documents back to the 15th century about legal issues ranging from disputes to papal bulls.

 What’s something most of your colleagues do not know about you?

I take any opportunity I can to travel.  When I worked at the North Atlantic Treaty Organization (NATO) Library in Brussels, Belgium, I was able to visit six countries in Europe.  In the United States, I have traveled to 34 states and my goal is to visit all 50.  When I’m not on a plane, train, or in a car, I’m usually enjoying my vinyl collection and visiting local museums—the National Air and Space Museum is my favorite.

Categories: Research & Litigation

Slow or Just Diligent? The Tale of Germany’s “Slow Judge”

In Custodia Legis - Mon, 06/24/2019 - 9:30am

The case of so-called “slow judge” Thomas Schulte-Kellinghaus, a judge at the Higher Regional Court Karlsruhe (OLG Karlsruhe), Germany, has kept the courts busy since 2012. And there does not seem to be an end in sight. In 2012, he was reprimanded by the then-President of the Higher Regional Court for “not properly executing his official duties.” (German Judiciary Act, § 26.)  At issue is judicial independence vs. the right to receive a decision within a reasonable time. The case went through all instances and was referred back to the appeals court by the German Federal Court of Justice, the highest court in civil and criminal matters. That decision is still pending. However, “slow judge” Schulte-Kellinghaus has already stated that he would appeal again on questions of law if the court rules against him.

Due process of law. Ehrhart, S. D., creator. Approximately 1862-1937. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/ppmsca.25806.

The Court Decisions

So why exactly was he reprimanded? The reprimand stated that he did not make decisions in his cases within a reasonable time, because his numbers were well below the average number of decisions that his colleagues wrote in the same amount of time and occasionally even below the numbers of part-time judges. In addition, according to the reprimand, the insufficient work of “slow judge” Schulte-Kellinghaus infringed the parties’ right to a fair and speedy trial. “Slow judge” Schulte-Kellinghaus on the other hand argued that the reprimand infringed his judicial independence, and that he was not slow, but diligent. (German Judiciary Act, §26, para. 3). In his opinion, in order to produce more decisions, he would have to change the way he approaches a case, thereby affecting his judicial independence. The Disciplinary Tribunal of the Regional Court Karlsruhe ruled against him. (Docket nos. RDG 5/12RDG 6/12RDG 7/12). The appeals court also denied his appeal. (Docket nos. DGH 1/13DGH 2/13DGH 3/13.) The Federal Court of Justice on appeal referred the case back to the court of appeals to determine whether the court administration incorrectly determined the average number of cases that other judges finished in the same amount of time.

Can a Judge Be “Too Slow”?

It is undisputed by the parties that the “slow judge” puts in as many hours as his colleagues. So what are the standards that need to be applied to determine whether he failed to properly perform his official duties in a timely manner?

“Slow judge” Schulte-Kellinghaus objected to the reprimand, because he contends that it compromises his independence. Judicial independence in Germany is guaranteed by article 97 of the Basic Law, the country’s constitution, the German Judiciary Act (§25), and the Courts Constitution Act (§1). It is divided into substantive independence and personal independence. Personal independence means that judges can only be involuntarily dismissed, permanently or temporarily suspended, transferred or retired before the expiration of their term of office by judicial decision and only for the reasons and in the manner specified by law. (Basic Law, art.97, para.2). Substantive independence means that judges are only subject to the law and that the other two branches of government cannot interfere with judicial decisions. (Id. art.97, para.1.) Judges are not subject to instructions and are only subject to supervision in so far as it does not compromise their independence. (BVerfGE 14, 56, para. 44; German Judiciary Act, §26, para.1.)

The Federal Court of Justice in its decision stated that a supervisor may generally urge a judge to properly execute his/her official duties in a timely manner and reprimand him or her for a failure to do so. According to settled case law of the Federal Court of Justice, reproaching a judge with backlogs and calling upon him/her to properly and timely executive his/her duties from now on therefore generally does not infringe judicial independence. The judge is requested to change his or her working methods, but not to decide in a certain way or to perform his or her duties in a certain way. The goal is to ensure the proper functioning of the court system. However, according to other settled case law of the Federal Court of Justice, judicial independence is infringed when a judge is forced, directly or indirectly, to meet a quota which generally cannot be reasonably expected to be met, meaning also not by other judges. What a reasonable quota is has to be determined in comparison to other judges in a similar capacity. In the case at issue, the “slow judge” contended that the court administration did not properly determine the average number of cases.

A Never-Ending Story?

The tale of “slow judge” Schulte-Kellinghaus seems to be far from over. Decide for yourself whether there is such a thing as a “slow judge” and let us know in the comments. We will keep you updated on the fate of “slow judge” Schulte-Kellinghaus here on the blog. If you are interested in receiving automatic updates, you can subscribe to our e-mail updates or the RSS feed.

Categories: Research & Litigation

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