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Research & Litigation

The First Form 1040

In Custodia Legis - Tue, 04/18/2017 - 3:42pm

Today is the deadline for filing returns for personal income taxes for 2016. The current federal income tax can be traced back to the Revenue Act of 1913, which was passed after the ratification, by the states, of the 16th Amendment to the Constitution. The act provided that taxes on individual taxpayers would be imposed beginning for the year 1913 on incomes of $3,000 and up.

Our modern Form 1040 can be traced back to the original form, photos of which are to the right and below. This form is reproduced from Federal legislation, 1913-1914; income tax, war revenue, federal reserve bank, anti-trust and trade commission lawspublished by the Federal Legislative Bulletin Service in 1915.

The Law Library of Congress has an extensive collection of materials concerning the history of federal taxation, including bills, committee reports, and laws. Many of these sources can be accessed through Congress.gov, or in specific databases that are available onsite at the Library of Congress.

Categories: Research & Litigation

150-Year Anniversary of the Adoption of the Constitution of the North German Confederation

In Custodia Legis - Mon, 04/17/2017 - 2:48pm

The North German Confederation (Norddeutscher Bund) is generally considered the first modern German Federation. Before that time, there were 39 different sovereign states, varying in size, that were loosely associated in the German Confederation (Deutscher Bund). The North German Federation came into existence with the adoption of the Constitution of the North German Confederation by the German Reichstag (parliament) on April 16, 1867. It was succeeded by the German Empire in 1871. Even though it only lasted for four years, the North German Confederation is of particular interest, both because the German Empire and its constitution were modeled after it, and because it provides an opportunity to see how a federal state is created, which offers interesting comparisons to the United States.

Verfassung des Norddeutschen Bundes [Constitution of the North German Confederation], 1867 Bundesgesetzblatt des Norddeutschen Bundes [Federal Gazette of the North German Confederation] at 2. Photo by Jenny Gesley. https://lccn.loc.gov/14013197

Despite the name “confederation,” the North German Confederation was, in fact, a true federation. In a confederation, the states are united in an alliance with a central power, but remain sovereign with regard to all internal and external affairs. In a federation, on the other hand, they transfer parts of their sovereignty to the central power, so some powers remain reserved to the individual states and cannot be exercised by the central authority.

Historical Background

The demise of the Holy Roman Empire of the German Nation (HRE) in 1806 left Germany a patchwork of many individual sovereign states. After the Napoleonic Wars, the German Confederation was founded in 1815 as a loose alliance between 39 sovereign German states. The German Confederation was dominated by the Austrian Empire and Prussia, the two largest states. Prussia wanted to extend its power, which could only happen at the expense of Austria. In 1866, they fought each other in the Austro-Prussian War (Seven Weeks War) and Prussia won. In the Peace Treaty of Prague, Austria formally agreed to the termination of the German Confederation. Germany was to be reorganized without the participation of the Austrian Empire and the southern states were declared independent. (Treaty of Prague, art. IV). There was to be a northern and a southern alliance, divided by the river Main. The future relationship between these two alliances was to be determined at a later date. (Id.) The northern alliance became the North German Confederation, whereas the southern alliance never materialized.

Five days before the Peace Treaty of Prague was concluded, the so-called “August Treaty“ (Bündnisvertrag Preußens mit den Norddeutschen Staaten) was signed at the initiative of Prussia. It created the North German Confederation as a military alliance between Prussia and 15 other sovereign states located in the north of Germany (“August Alliance (August Bündnis)”). The military was placed under the command of the Prussian King William I. (August Treaty, art. 4). Soon afterward, the remaining northern states joined and the number of alliance members increased to 23. The dominance and size of Prussia (it made up four-fifths of the territory and had three-fifths of the population) left the small northern states no choice but to join the alliance. The August Treaty provided that the alliance would terminate either after one year had elapsed or when a federal state was formed. (Id. art. 6). It stated that the goals of the alliance were to be secured by the adoption of a federal constitution on the basis of the Prussian draft of June, 10, 1866. The constitution was to be passed by the governments of the alliance members in cooperation with a parliament (Reichstag) elected by the male population of the participating states. (Id. art. 2).

The states prepared the election of the parliament and convened in Berlin to debate the draft constitution submitted by Otto von Bismarck, the Prussian chief minister. They adopted the draft after three sessions and authorized the crown of Prussia to represent the states in relations with the parliament. In his speech in parliament, Bismarck encouraged the members by saying: “Sit Germany, so to speak, in the saddle—it will know how to ride!” The Constitution of the North German Confederation was adopted by the newly elected parliament after two months of debate and submitted to the legislatures of the states for ratification. Each state individually promulgated the constitution in accordance with their procedures for constitutional amendments and inserted identical provisions that the new constitution would go into effect on July 1, 1867.

Bismarck envisaged the North German Confederation only as a first step to a federation of northern and southern German states, as it was later realized in the German Empire. The Constitution of the North German Confederation remained in force until December 31, 1870 and formed the basis for the Constitution of the German Empire of 1871.

Otto Fürst von Bismarck, 1815-1898. 1870. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/cph.3b18066

Constitution of the North German Confederation

The Constitution of the North German Confederation consisted of 79 articles. It did not contain a bill of rights and focused instead on the organization and powers of the legislative and the executive branches and on the relationship between the states and the federation.

The Constitution set up a federation and directly conferred certain exclusive powers on it with regard to free movement, residence, and naturalization; commerce and navigation; customs and taxes; weights and measures; coin; banking; copyrights and patents; regulation of railroads and waterways for military purposes and in the interest of general commerce; navigation; postal and telegraph service; mutual recognition and enforcement of judgments; notarization of documents; legislation in the areas of contract law, criminal law, commercial law, bills of exchange, and judicial procedure; and the army, militia, and navy. (Constitution, art. 4). Other powers not delegated remained with the states. Federal laws preempted state laws. (Id. art. 2). Citizens of one state had to be treated the same as native-born citizens of another state. (Id. art. 3).

The legislature consisted of two houses, a Reichstag (parliament) and a Bundesrath (Federal Council). The two bodies had equal rights in the legislative process and every law required joint concurrent majority decisions to be passed. (Id. art. 5, para. 1). The Reichstag was elected for a period of three years by universal and direct suffrage in a secret ballot. All German men over the age of 25 years were eligible to vote. (Id. arts. 20, 24). A quorum of a majority of the members needed to be present to make decisions, which were passed by an absolute majority. (Id. art. 28). The members of the Reichstag were not allowed to draw a salary or other compensation, in order to ensure the “respectability” of those elected. (Id. art. 32).

The Bundesrath was made up of representatives of the individual states, with a total of 43 members. It was chaired by the Federal Chancellor (Bismarck) who was appointed by the Federal Presidency. (Id. art. 15). The number of representatives was the same as in the plenary of the former German Confederation, which meant that Prussia had 17 members. All other states mostly had one representative, with the exception of Saxony, which had four, and Mecklenburg-Schwerin and Braunschweig, which had two each. (Id. art. 6). The members were nominated by the state governments. (Id. art. 7). Decisions were made by a simple majority. The constitution awarded the Federal Presidency the right to cast a tie-breaking vote. (Id. art. 7, para. 2).

The Federal Presidency (executive branch) was permanently awarded to the crown of Prussia. (Id. art. 11).  He represented the North German Confederation externally, was commander in chief of all land and naval forces; he declared war and restored peace; he entered into international agreements; he certified and promulgated laws (although laws also needed the countersignature of the Federal Chancellor to become valid); he appointed officers and had the power of removal; and he assembled and dissolved the Reichstag and the Bundesrath, although the Reichstag could not be dissolved without the concurrence of the Bundesrath. (Id. arts. 12, 24).

No federal judiciary was created. Constitutional disputes between the individual states were settled by the Bundesrath (id. art. 76), an arrangement contrary to the principle of separation of powers.

Parallels and Differences to the United States

The Constitution of the North German Confederation corresponds in many ways to the U.S. Constitution. These similarities were noted by the U.S. Ambassador to the North German Confederation, George Bancroft, who remarked that “ [t]he constitution of North Germany corresponds in so many things with ours that it must have been formed after the closest study of our system, or the same imperfections of government have led the two countries, each for itself, to the discovery and application of similar political principles.”

The relationship between the central government and the states is set up in much the same way in both the United States and the North German Confederation. The central government is granted certain exclusive powers, while the individual states retain powers over affairs that have not been delegated. The list of powers mostly covers the same areas, such as defense, commerce, etc. However, the Constitution of the North German Confederation directly confers these powers, while the U.S. Constitution is sometimes less explicit. Both constitutions award the rights that a native-born citizen of one state has to the citizens of any other state.

In both cases, the legislative branches are composed of two houses with equal rights. The U.S. House of Representatives is similar to the Reichstag, whereas the U.S. Senate corresponds to the Bundesrath. The U.S. Vice President is authorized to cast a tie-breaking vote in the U.S. Senate as was the case with the Federal Presidency in the Bundesrath of the North German Confederation.

However, a striking difference between the United States and the North German Confederation is the de facto hegemony of Prussia. In the U.S. Senate, each state is equally represented by two senators, regardless of their population, whereas Prussia held 17 out of a total of 43 votes in the Bundesrath. The dominance of Prussia in the North German Confederation is also evidenced by the fact that the Constitution was based on the Prussian draft and that the Federal Presidency was permanently awarded to the king of Prussia.

Furthermore, there was no strict separation of powers in the Constitution of the North German Confederation as it is set up in the U.S. Constitution. The Bundesrath exercised not only legislative, but also executive and judiciary branch powers.

Further Reading

The Library of Congress and the Law Library of Congress hold a variety of books on German history and German constitutional history in general, and on the North German Confederation. They include, among others:

 

Categories: Research & Litigation

The Myriopticon, A Historical Panorama of the Rebellion

In Custodia Legis - Fri, 04/14/2017 - 9:44am

This post is coauthored by Nathan Dorn, rare book curator, and Robert Brammer, senior legal information specialist.

This is a photo of the cover art.  Photo by Robert Brammer.

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Our latest video comes to you from the Rare Book and Special Collections Reading Room of the Library of Congress. To help us commemorate the Appomattox Campaign that took place 152 years ago and concluded on April 9, 1865 with Robert E. Lee’s surrender to Ulysses S. Grant, this video features a myriopticon that depicts various scenes from the Civil War. Titled “A Historical Panorama of the Rebellion,” the myriopticon was manufactured by Milton Bradley around 1865. The myriopticon was an educational device targeted at prepubescent boys that consists of a box containing a painted scroll and two scroll tubes. A key is inserted through the box and into the scroll tube to rotate the scroll. Rotating the scroll passes assorted scenes from the war across the frame, including the Battle of Fort Sumter, African American families posing next to a covered wagon, and the evacuation of Richmond.  The myriopticon is just one item from the Library’s Alfred Whital Stern collection, a collection of items related to President Abraham Lincoln.

Alfred Whital Stern (1881-1960) was an important American collector of Abraham Lincoln memorabilia active in the 20th century.  After some thirty years of collecting, he gave his Lincoln artifacts to the Library of Congress in 1953. Along with these were included a body of publications and other items relating to the important issues of Lincoln’s times, including slavery, the Civil War, and Reconstruction. This marvelous device was among them.

If you would like to explore some more interesting artifacts from the Civil War, be sure to visit our Prints and Photographs Division’s Collection of Photographs from the Civil War.  And if you would like to read more about the Civil War from the perspective of Congress, visit Century of Lawmaking for a New Nation and click on the “debates of Congress.”

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In this photo, you can see (above at left) the key that is used to turn the Myriopticon’s scrolls. Photo by Robert Brammer.

Categories: Research & Litigation

2017 Law Day Event: Justice Through the Perspective of an Eyewitness Artist

In Custodia Legis - Thu, 04/13/2017 - 2:41pm

On Thursday, April 27, 2017 the Law Library of Congress will celebrate Law Day with a panel discussion about courtroom illustration, “Justice Through the Perspective of an Eyewitness Artist.”  Law Librarian Jane Sanchez will introduce courtroom artists Marilyn Church, Pat Lopez and Bill Robles along with Library of Congress Prints & Photographs curator Sara W. Duke who will moderate the discussion.  The event will take place at noon in Room 119 on the first level of the Library’s Thomas Jefferson Building, 10 First St. S.E., Washington, D.C.  The event is free and open to the public.  Tickets are not needed.

This year’s Law Day event has been designed to coordinate with the opening of the exhibit, “Drawing Justice: The Art of Courtroom Illustrations.”  The exhibit will feature drawings from 12 courtroom artists over a 50 year span of time.  Three of the artists whose work is featured in the exhibit will participate in the Law Day event to speak about their experiences.

Marilyn Church had intended to work as a fashion illustrator, but in 1974  a friend urged her to work as a courtroom illustrator for a trial in Queens, New York.  Church went on to sketch numerous high-profile cases in the New York area, including the criminal trials of Martha Stewart and John Gotti, and the now deceased, blind militant Omar Abul Rahman.

Pat Lopez has been a courtroom illustrator for almost 40 years.  She began her career in 1979 with the Silkwood v. Kerr-McGee trial and went on to cover trials across the country from West Texas to the Supreme Court in Washington, D.C.  Among the significant court cases she has illustrated are the trials for the Waco, Texas Branch Davidian case, the Oklahoma City bombing trial and the case for the admission of women to the Citadel.

Bill Robles received a B.A. from the Art Center of Design and initially worked as an advertising illustrator. He is a Los Angeles-based artist, who has been illustrating trials for more than four decades.  His first job as a courtroom artist was for the riveting Charles Manson trial in 1970-71.  His drawing showing Manson’s attempted stabbing of the judge led off the CBS evening news that day.  His work over the years covered the 2005 trial of Michael Jackson, the O. J. Simpson civil trial and trials litigated by nationally renowned attorney Thomas V. Girardi.  Robles has traveled across the country to provide illustrations for various news outlets.

Law Day has been celebrated since 1958 when President Eisenhower issued the first presidential proclamation designating May 1 as Law Day.  In his proclamation, President Eisenhower noted that “the principle of guaranteed fundamental rights of individuals under the law is the heart and sinew of our Nation and distinguishes our governmental system from the type  of government that rules by might alone;”  In 1961, Congress passed a law designating May 1 as Law Day in perpetuity and calling on the president to issue an annual proclamation for the celebration of this day.

We hope you can attend our event in person and hear our panelists discuss their experiences in the courtroom.  You can also follow us on Twitter at @lawlibcongress when we live tweet this event.

Categories: Research & Litigation

Legal Research Reports: Regulation of Drones

Law Library of Congress: Research Reports - Thu, 04/13/2017 - 10:30am

The Law Library of Congress is proud to present the report, Regulation of Drones

The increased use of drones for civilian applications has presented many countries with regulatory challenges. Such challenges include the need to ensure that drones are operated safely, without harming public and national security, and in a way that would protect areas of national, historical, or natural importance. A variety of the countries surveyed in this report have also made efforts to address concerns regarding the property and privacy rights of landowners or other persons impacted by the operation of drones.

More information on this report is available in an In Custodia Legis blog post.

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

Wikipedia Congressional Committees Edit-a-thon Event Recap

In Custodia Legis - Tue, 04/11/2017 - 3:04pm

On April 7th, the Law Library of Congress, the National Archives, Wikimedia D.C., the Senate, and the Smithsonian cohosted a Wikipedia Congressional Hearings Committee Edit-a-thon in the Madison Building of the Library of Congress. The purpose of the event  was to improve articles in Wikipedia that describe U.S. Congressional Committees.

Law Librarian of Congress Jane Sánchez addresses the Wikipedia Congressional Committee Edit-a-thon. Photo by Andrew Weber.

We kicked off the day with a presentation from the Law Librarian of Congress, Jane Sánchez, who welcomed everyone to the event and provided an introduction to the Library of Congress. Jane was followed by the Deputy Librarian of Congress, Robert Newlen, who described the importance of Wikipedia as a popular entry point for gathering information on an unfamiliar topic, including many aspects of our federal government. Robert stressed that events like this one are vital for delivering information to patrons at their point of need, combining the accessibility of Wikipedia with authoritative references drawn from the Library of Congress and the National Archives.

Next, Katherine A. Scott, associate historian from the Senate Historical Office, provided us with an interesting overview of the history of U.S. Congressional Committees. Natalie Rocchio, an archive specialist from the Center for Legislative Archives at the National Archives provided us with a presentation on resources offered by the National Archives that could be used to improve Wikipedia articles. I then concluded the morning presentations by describing Library of Congress resources, such as Congress.gov and Century of Lawmaking for a New Nation, that the editors could use to develop their Wikipedia articles.

After the morning session presentations, we took a short break to allow our guests to tour the Law Library’s Reading Room and enjoy a display of rare Congressional materials hosted by the Law Library’s Senior Legal Information Analyst, Jim Martin.

Photo of a drawing of a Native American in the U.S. Serial Set. Photo by Robert Brammer.

After the break, Sara Snyder, chief of the Media and Technology Office at the Smithsonian American Art Museum, provided an excellent presentation on the process of editing Wikipedia. After Sara’s presentation, the attendees worked the rest of the afternoon editing Wikipedia articles. The event concluded with Professor Andrew Lih’s fascinating presentation on the future of Wikipedia, including the application of big data to Wikipedia articles and attempts to create games that allow users to quickly and easily add content to Wikipedia.

We were excited to host 63 attendees, who joined us both online and in person. In total, the event edited fifty-nine articles, and we hope you will keep up the momentum from the event by continuing to improve Wikipedia’s Congressional Committee articles. We want to thank everyone who made this event possible, including the National Archives, Wikimedia D.C., the Senate, the Smithsonian, and the Library of Congress. Please join us, either in person or online, for similar events in the future as we work to make authoritative information resources more open and accessible.

Categories: Research & Litigation

(Extramarital) Love and Taxes

In Custodia Legis - Mon, 04/10/2017 - 10:59am

Tax season is upon us, and most people will not start filing their tax return until the very last moment. Statistics show that the majority of people file in April or even the week of April 15, the usual filing deadline. Sound familiar? In such a case, it helps to be organized and have all your receipts for possible itemized deductions ready and in order. And who could be more organized than a German? (As a German myself, I will allow myself to freely reinforce stereotypes about Germans.) I recently came across a 2004 tax case from the German Federal Fiscal Court (Bundesfinanzhof, BFH) which I could not resist sharing. (BFH, docket no. III R 31/02)

Ox as “ye oppressed tax-payer” pulling cart of municipal, county, poor, state, courthouse, road, school, and local taxes. Coffin, George Yost (artist). Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/acd.2a07106

Facts of the Case

The plaintiff and his wife had been married since 1964. Unbeknownst to his wife, the plaintiff also entertained two extramarital affairs, one of which was with the former housekeeper of the couple. He kept his affairs hidden from his wife, because she had a heart condition and had previously suffered a heart attack and was therefore not supposed to be subjected to any unnecessary excitement. A friend of the housekeeper learned of the affairs and started blackmailing the plaintiff. Afraid that she would expose him to his wife, he paid her a total of Deutsche Mark 191,000 (around US$ 103,253) over the course of four years from 1994 until 1997. (BFH, supra at paras. 1, 2).

Ever the proper German, the plaintiff kept meticulous records of the time and amount of the payments, collected the bank transfer forms, copied checks and money orders, and even had his blackmailer sign receipts for received money. (Id. at 3).

So at what point in the story do taxes come into play? In April of 1998, his wife died of a heart attack (without discovering her husband’s infidelity) and the plaintiff reported the friend of the housekeeper to the police. She was subsequently tried and convicted for extortion to a prison sentence of two years and three months. Attempts to get her to repay the money proved unsuccessful. Not willing to give up just yet, the husband submitted his receipts and other paperwork to his local tax authority and claimed the blackmail money as a deduction for “extraordinary expenses.” The tax authority rejected his claim, and, obviously, he sued. (Id. at 3-6)

The Applicable Law

The German Income Tax Act provides that expenses are “extraordinary” and, therefore, deductible if the taxpayer inevitably incurs higher expenses than the majority of taxpayers with the same income level, the same financial situation, and the same marital status. Expenses are inevitable if the taxpayer cannot avoid them because of legal, actual, or moral reasons and if the expenses were necessary given the circumstances and did not exceed a reasonable amount. (Income Tax Act, § 33)

The Court Decisions

The Fiscal Court in Cologne (Finanzgericht Köln, FG Köln) was sympathetic to the plaintiff’s claim and ruled in his favor. (FG Köln, docket no. 4 K 2149/00). It held that the expenses were inevitable, because extortion is not a common occurrence and the plaintiff had no choice but to pay the money in order to ensure his wife’s life or health were not in peril. In the Court’s opinion, it was irrelevant that the plaintiff could have confessed the affair to his wife or that he consciously or unconsciously incurred the expenses by entering into an extramarital affair. A person that starts an extramarital affair does not necessarily anticipate that he or she will be extorted because of it.

The Federal Fiscal Court reversed the decision of the lower court on appeal. It stated that the Income Tax Code provides that expenses that the taxpayer incurred because of voluntary decisions regarding his lifestyle are generally not deductible as “extraordinary expenses.” (Income Tax Code, § 12) Such costs are only deductible as an exception on grounds of equity or when the expenses concern a part of the taxpayer’s way of living that he or she cannot influence. (BFH, supra at 13) According to the Court, the reason that led to the expense is therefore essential. It added that it is irrelevant whether the taxpayer subjectively felt that he or she was forced to perform an act; only objective reasons,as mentioned in the Income Tax Code, are relevant. (Id. at 14, 15) In the case of extortion, it matters whether the taxpayer had influence over the fact that caused the extortion. For example, a person who gets extorted because of his or her wealth had no influence over that fact. (Id. at 16, 17)

The Court held that even though the expenses were “extraordinary,” because not everyone who has an extramarital affair will be extorted, they were not “inevitable.” (Id. at 20) The plaintiff voluntarily entered into an affair even though his wife’s health was already fragile. He himself created the reason for the later extortion. (Id. at 21) The Court added that the plaintiff had different options at his disposal to avoid paying. He could have gone to the police right away, or he could have confessed the affair to his wife. Even though she had a heart problem, and eventually died of a heart attack, there was no indication that every excitement would have threatened her life. In the opinion of the Court, the plaintiff could have consulted her doctor, had a doctor present while he confessed the affair, or given her medication to avoid any danger. (Id. at 22, 23)

And the moral of the story? Is there one? Let us know in the comments section!

Bundesfinanzhof (BFH) (Federal Fiscal Court), Mar. 18, 2004, docket no. III R 31/02

Finanzgericht Köln (FG Köln) (Fiscal Court Cologne), Dec. 19, 2001, docket no. 4 K 2149/00

Categories: Research & Litigation

Pic of the Week: Interns Spend Spring Break in D.C.

In Custodia Legis - Fri, 04/07/2017 - 3:49pm

Two weeks ago I had the pleasure of welcoming three interns from the University of Illinois Urbana-Champaign to Washington, D.C. on their spring break.  They are graduate students pursuing a master of science degree in library and information science. These future librarians have been volunteering remotely on several different metadata projects of the Law Library since January and will continue through May.

University of Illinois Urbana-Champaign interns Geoffrey Jacobs, Matt Matkowski, and Ruth Slagle. Photo by Jennifer González.

For their spring break trip to Washington, D.C., we had tours of the Supreme Court Library, Capitol Building, and, of course, the Library of Congress! They attended presentations and meetings with many members of our staff to understand more about librarianship and what we do. They said that it was very helpful to see the physical collections and meet with staff members. It allowed them to see their projects from a broader perspective and better understand how their work was utilized.

Volunteers and interns are essential to our digitization and research work. Are you interested in volunteering or intern opportunities with the Law Library of Congress? We update our Internship Opportunities webpage as we identify needs and projects throughout the year.

Categories: Research & Litigation

Law and LGM (Little Green Men), Part 1.

In Custodia Legis - Thu, 04/06/2017 - 5:14pm

In this column, regarding literature, and in a later one also discussing film and television, I propose to “explore strange new worlds…” by looking at how law and lawyers have been treated in science fiction and fantasy.  It may seem that law and lawyers are not often covered in these genres, and it is true that there are few works where the subjects play a large thematic role.  While it is more common for science fiction authors to be concerned with physical laws, such as the law of motion, the genre is often concerned with how human and hypothetical alien societies work, and such concerns sometimes include at least a nod to a legal system.

Le Sortie de l’opéra en l’an 2000 / A. Robida. [ca. 1902]. Library of Congress Prints and Photographs Division, http://www.loc.gov/pictures/item/2007676247/

Some writers have made a point of including legal subjects, if not in the foreground, at least in the background of a work.  One such writer is the late Sir Terry Pratchett, who in his Discworld series, occasionally gives us a peek at how the legal profession developed in a major city, Ankh-Morpork.  The legal profession in Ankh-Morpork is organized somewhat like the Inns of Court in London, where clerks apprentice themselves to the chambers of senior attorneys.   The most senior member of the local profession, and the president of the guild of lawyers, is a zombie, Mr. Slant.  Because Mr. Slant is a zombie, he has had centuries to master all relevant precedents for all possible cases, which makes him an unstoppable advocate.  However, he is also corrupt.  In The Truth, he is retained by a shadowy organization that wishes to overthrow the city’s government.  Slant acts as an intermediary between the cabal and two thugs, arranging payments and providing instructions.  In the end, he is only just able to save his reputation by taking on pro bono the case of the publisher of the newspaper who knows everything about his ethical lapses.

Another lawyer from Discworld is the ethical opposite of Slant: Mr. Thunderbolt, who is a troll.  Mr. Thunderbolt is very wise for both a troll and a lawyer. While it would normally be a problem for a lawyer to represent both parties in a contract he or she has drafted, in Raising Steam, Mr. Thunderbolt does this, and is able to perfectly balance the interest of each.  Oddly enough, he also served as an apprentice to Mr. Slant, so perhaps he learned what a good lawyer should not do!

The luridly titled Gladiator-At-Law is a largely forgotten novel from the 1950s written by two of the major genre writers of the era, Frederik Pohl and Cyril M. Kornbluth.  This work provides a portrait of how a lawyer might rise from the sordid ranks of money-grubbing criminal defense work by using corporate law to overthrow the management of a major multinational corporation.  In an unstated year sometime in the near future, in an America which is heavily stratified by income, we are introduced to Charles “Charlie” Mundin, L.L.B., from John Marshall.  We first see him unsuccessfully trying to convince a criminal defendant to accept a plea deal.  After a short trial, which he loses, Mundin’s client is convicted by a jury vote submitted to the court by punch cards, and is sentenced to be mentally reconditioned for the good of society.  While the novel was written in the 1950s, part of the novel involves situations that a regular lawyer might encounter in any age.  Mundin is offered a chance to work on a very lucrative corporate law case, but because he has no specialized experience or credentials, he is asked to work with an older lawyer, a former titan of corporate practice now grappling with problems of substance abuse. Mundin uses form books as an aid in drafting documents and pleadings; he goes to the clerk’s office to check on public records, something which can now be done online; he has a friend who works at a major law firm call the firm’s library to locate information about where a corporation is holding a stockholders’ meeting.  In the end, he successfully engineers a hostile corporate takeover with nothing more than good instincts, guts and some sage advice.  And yes, there is an actual arena and something like a gladiator fight!

Computer adjudication of criminal trials is the plot device for Welcome to Justice 2.0, a short story by George Tucker in the January 2004 issue of Fantasy and Science Fiction.  An unnamed protagonist is seen struggling with software as he faces a criminal trial for an unidentified offense in the year 2015. After being convicted, he first files an appeal with the computer, which quickly sustains the conviction. He then attempts to bargain down the three year sentence.  The first software he uses, Legal\Mac\EasyTime\, is rejected, but a shareware program successfully negotiates his sentence down to 2 years probation and time served.

Issac Asimov is well known for his novels and short stories concerning robots.  He even formulated laws of robotics, which are cited in other works of fiction and also scholarly works.  His interrelated Empire and Foundation novels, were also very popular.  In Foundation, Asimov provides sketches of two trials, of Hari Seldon, the father of psychohistory, and of his young assistant, on charges of treason. During the first day, the trial is conducted by a commission, and takes place before a select audience.  In many ways, the proceedings are in the nature of an inquisition, with the question of guilt having been determined before any formal proceedings.  Seldon is examined by a commission advocate, a prosecutor.  Seldon has an attorney, but his attorney does not speak.  There are not many due process rights given to the defendants.  The next day, however, the defendants and commissioners meet alone.  The trial has ended, but the sentence still is to be imposed.  The sentence is then announced, which ends the first part of the novel.

This same action is covered by Greg Bear in Foundation and Chaos, which provides a backstory to some of the developments in the first Foundation novel.  In this novel, we see Seldon’s arrest and imprisonment prior to trial; no pretrial release is provided to him, even though he is an elderly man in marginal health and not a likely flight risk.  In addition, it is revealed that his attorney is actually working for the government, a position which is unethical.

I am indebted to John Cannan, former Law Library of Congress legal information analyst, and current Drexel University research and instructional services law librarian, for several references to science fiction authors whose works appeared in legal journals.  One that was particularly interesting was a paper presented by Sir Arthur C. Clarke to the Fourth Colloquium on the Law of Outer Space conducted by the International Institute of Space Law, held in Washington in 1961.  Mr. Clarke, who is credited with publishing the first paper on the potential for using geostationary satellites to relay telecommunications signals, gave a “shout out” to a “legal friend,” who assured him that he could not receive a patent for the idea.  The friend was attorney and science fiction author Theodore L. Thomas, who under the pen name Thomas Lockhard, published a humorous story in the January 1961, issue of Analog Science Fact, Fiction.  In the story, Clarke goes to a law firm that specializes in intellectual property law to request assistance in filing a patent application.  He is told that, sadly, the law will not support his claim.  I think this may be the only work of science fiction that I have read which has citations to the United States Code, and to a decision of the Court of Appeals of the District of Columbia!

I hope you have enjoyed this review of legal topics in science fiction. This list is not meant to be conclusive, so please feel free to let us know in the comments if there are any other books or series of interest not listed here.

Categories: Research & Litigation

Legal Research Reports: Constitutional Right to an Education

Law Library of Congress: Research Reports - Thu, 04/06/2017 - 10:30am

The Law Library of Congress is proud to present the report, Constitutional Right to an Education

This report describes the law of twenty jurisdictions on the right to education, and whether the right appears in the national constitution or in statutory law. The jurisdictions selected for review have different constitutional arrangements and reflect diverse political, cultural, and economic experiences. All of the surveyed jurisdictions recognize the right to education. Fifteen of them provide for the right in their national constitutions, while five provide for the right through legislation. All reflect an interesting diversity in how the right to education is recognized in varied jurisdictions around the globe.

More information on this report is available in an In Custodia Legis blog post.

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

Many Adoptions in Japan are Not About Raising Children

In Custodia Legis - Wed, 04/05/2017 - 9:57am

This post is by Sayuri Umeda, a foreign law specialist who covers Japan and various other East Asian and Southeast Asian countries. She has previously written posts for In Custodia Legis on various topics, including testing of older drivers in Japan, English translations of post-World War II South Korean laws, laws and regulations passed in the aftermath of the Great East Japan Earthquake, and the regulation of fugu (pufferfish) in Japan. She has also highlighted our collections related to Japanese family law and Cambodian law. 

Meijijingu, a family. (Photo by Flickr user huw-ogilvie, Nov. 29, 2009.) Used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/.

While growing up in Japan I never thought that many adoptions took place there. I had never met an adopted classmate during my childhood. However, I recently learned that Japan has the world’s second highest adoption rate with more than 80,000 adoptions per year. The country with the highest rate is the United States. (Chiaki Moriguchi, Why Does Japan Have a Small Number of Adopted Children?, in Arata na risuku to shakai hosho [New risks to our lives and social security], 53, 55 (Toshihiro Ibori et. al. eds., 2012) (in Japanese).)

So, where are all these Japanese adopted children?

Not many young children are actually adopted in the country. In Japan, most people who are adopted are adults. (Chiaki Moriguchi, Child Adoption in Japan, 1948-2008: A Comparative Historical Analysis, 61(4) Economic Review 342, at 344 (Oct. 2010).) However, this does not mean there are not many children in need of protection who could potentially be helped through adoption. In 2003, there were 36,000 children in need of protection, but only 7% of these children were adopted or placed in foster care. In comparison, in the United States, there were 520,000 children in need of protection, and 28% of them were adopted or under long-term foster care. Of the children needing protection in Japan, about 53% will stay in institutions until they can become independent. (Why Does Japan Have a Small Number of Adopted Children?, supra, at 54.) However, the Japanese government has started promoting foster care for children in need of protection, and the ratio of children under foster care has recently significantly increased. (Ministry of Health, Labour and Welfare, Tasks and Future of Social Care (Summary), at 10 (in Japanese).)

One of the reasons the number of adoptions has not increased is that the parents of children in institutions do not agree to their children being adopted. This may be because they can see their children at any time if the children are in institutions. Another reason could be that public child counseling offices do not have the necessary expertise and experience to arrange adoptions. (Yasuhiro Okuda, Genko ho no hubi to rippo jujitsu [Shortcomings of current law and reality]in Yoshi engumi assen [Mediation of Adoptions] 1, at 5 (2012).)

The adoption of an adult who is younger than an adoptive parent is possible in Japan. (Civil Code, Chapter IV, Act No. 222 of 1947, amended by Act No. 71 of 2016, art. 793.) In fact, it is easier to do this than to adopt a minor, as adopting a minor requires court permission unless the minor is the person’s lineal descendant. (Id. art. 798.) As of 1982, about 70% of adopted adults were men in their 20s and 30s. It is assumed that many of these young men were adopted to succeed the house/family and family business of the adoptive parent. (Why Does Japan Have a Small Number of Adopted Children?, supra, at 57.) In earlier times, the old Civil Code had a muko yoshi (son-in-law adoption) system where a man who married a woman was adopted by her parents. (Civil Code, Ch. 4 & 5, Act No. 9 of 1900, art. 788, para. 2. See also, Regarding Entry of Muko Yoshi Adoption-Marriage on Family Registry, Anzai Judicial Scrivener Office (in Japanese, last visited Mar. 1, 2017).) Muko yoshi was used typically when a household did not have proper male successor. (Satoshi Sakata, Historical Origin of the Japanese Ie System, Chuo Online (Jan. 28, 2013).)

It seems that the situation has not changed much in recent years. Figures show that 98% of adoptions in Japan do not require court permission. This number includes children adopted by stepparents and grandparents; therefore, they are not all adult adoptions. (Child Adoption in Japan, 1948-2008, supra.) The ages of those adopted were not specified, so it unclear what proportion might be younger men adopted for family business succession purposes.

Another reason behind the number of adult adoptions is that they can be used to save on inheritance tax. In a Diet (Japan’s parliament) session in 1987, a representative said at a committee of the House of Representatives that he assumed that 95% of deceased persons who had assets that were large enough to incur the inheritance tax adopted a child’s spouse and/or a grandchild. (Statement by Masakatsu Okada, Minutes of Special Committee on Issues on Land, etc., House of Representatives, No. 3, at 24 (Dec. 5, 1987).) There can be savings on inheritance tax through increasing the number of children who will be heirs, as a per-child deduction amount is allowed. (Inheritance Tax Act, Act No. 73 of 1950, amended by Act No. 15 of 2016, art. 15.) Also, the tax rate may be lower because the amount inherited by each heir becomes lower. (Id. art. 16.) The inheritance tax is imposed on persons who receive inheritance in Japan. (Id. art. 1-3.)

In order to prevent excessive use of adoptions for tax saving purposes, the Inheritance Tax Act was amended in 1988 (Act to Amend Income Tax Act And Other Acts, Act No. 109 of 1988). The amendment limited the number of adopted children of the deceased that can be used to calculate deductions when the total taxable value of the deceased’s inherited asset is calculated. When the deceased does not have a biological child, a deduction for up to two adopted children can be applied. When the deceased has a biological child or children, a deduction for one adopted child can be applied. (Id. art. 15, para. 2.) If there is an adopted child/children who was adopted through a procedure specially designed to create the same parent-child relationship as that of biological parent and child, the number of such adopted children is not limited for the inheritance tax deduction. (Id. art. 15, para. 3.)

People may wonder if adoption for tax saving purposes is legally valid. Typically, such adoptions are only on paper. The Supreme Court decided a case on this issue recently. (Heisei 28 (ju) 1255, S. Ct. (Jan. 31, 2017), Courts In Japan website (click on the characters beside the PDF icon).) In the case, a minor grandson was adopted by the deceased near the end of his life for the purpose of saving tax. As stated above, when a lineal descendant is adopted, even if the person is a minor, a court decision is not needed for the adoption. At the time of the distribution of the inheritance, disputes arose among the children of the deceased and some of the heirs sued the adopted grandchild, claiming the adoption was invalid. The Supreme Court stated that the motive of saving tax can co-exist with the intention to adopt a person. In the case at hand, the Court did not find any facts that suggested a lack of intention to adopt the grandson. Therefore, the Court decided the adoption was valid. (Sayuri Umeda, Japan: Adoption of Grandchild in Order to Save on Inheritance Tax Can Be Valid, Global Legal Monitor (Feb. 23, 2017).)

There is another complication. The Supreme Court made its decision about the validity of the adoption based on the Civil Code. However, the Inheritance Tax Act has a special provision. It states that adopted children may not be counted for deduction purposes if the head of a tax office decides that it unfairly reduces the tax burden. (Inheritance Tax Act, art. 63.) According to a newspaper article, the National Tax Agency has stated that the Agency may not approve the tax deduction even if an adoption is valid. An accounting firm has provided possible scenarios in which this provision could apply: (a) the adoption took place when the person’s death became imminent; or (b) the person had dementia when the adoption took place. (Ito Accounting Firm, Is an Adoption for the Purpose of Tax Saving Legal as Long as Intention to Adopt Exists?, Sozoku Tokyo (Feb. 11, 2017) (in Japanase).) However, another firm does not think a tax office head would apply article 63 in these cases because the burden of proof is on the tax office and it is not easy to say that tax saving in these cases is unfair. In addition, it appears there have been no known cases regarding the application of this provision. (Motonobu Mitamura, How About the Relationship Between Adoption and Inheritance?, Japan Central Accounting Firm Co., Ltd. (Nov. 1, 2011) (in Japanese).)

In any case, the practice of adoption in Japan is clearly different from what generally takes place in the United States and many other countries.

Categories: Research & Litigation

The Law Librarian of Congress’ Address to the Hispanic Law Conference

In Custodia Legis - Tue, 04/04/2017 - 9:17am

The Law Librarian of Congress, Jane Sánchez, addressed the Hispanic Law Conference at American University’s Washington College of Law on March 29th. In her remarks, Jane stressed the connection between the Law Library’s work and James Madison’s famous quote that is inscribed on the walls of the Madison Building, “Knowledge will forever govern ignorance and a people who mean to be their own governours (sic) must arm themselves with the power which knowledge gives.” Jane mentioned that libraries continue to play an essential role in furnishing the authoritative information that is a prerequisite for effective civic participation, but also pointed out that libraries are in competition with other sources of information and must work to remain relevant.  Jane then discussed how the Law Library of Congress meets that challenge.

Law Librarian of Congress Jane Sánchez. Photo by Donna Sokol.

Jane mentioned that the Law Library of Congress holds nearly 3 million volumes and supports a wide variety of constituents, including: Congress, the Supreme Court, Executive Branch agencies, federal courts, the practicing bar, state and local governments, American businesses, and scholars with legal research and reference questions. The Law Library provides reference assistance with U.S. federal, state, and local law, and thanks to the work of our foreign legal specialists, we also provide reference assistance with laws from 240 other nations and legal systems around the world. Jane also highlighted that the Law Library offers training sessions for locating statutes, regulations, and court cases in print and online formats.

Jane recognized that not everyone can visit the Law Library on Capitol Hill, and for that reason the Law Library began offering access to digital resources as far back as the 1990s, working on strategic projects aimed at making primary legal materials available for free online. One of our primary digital projects is Congress.gov, a collaborative project with the Library of Congress, Office of the Clerk of the U.S. House of Representatives, the Office of the Secretary of the Senate, the Government Publishing Office, the Congressional Budget Office, and the Congressional Research Service. Congress.gov, the official website for U.S. federal legislative information, helps the public stay informed of Congressional activity with features such as email alerts that help the public track the sponsorship and progress of legislation. Jane mentioned that Congress.gov has recently experienced a sharp increase in traffic since January 22nd. We are excited to see that this increase in traffic is due in part to legislation going viral on Facebook.

Jane noted that the Law Library strives to meet our off-site patron’s information needs through our website, law.gov, Ask A Librarian, and through our presence on social media. She noted that while we cannot always condense our reports into 140 characters, we work to make our research products available online, providing educational resources through our foreign law reports, the Global Legal Monitor, the Indigenous Law Portal, and our blog, In Custodia Legis.  Jane concluded by recognizing that we are not under the illusion that we are the first source for news and current events and that we cannot impart the knowledge of 3 million law volumes in 140 characters or cover complex legal topics in an entertaining soundbite. Instead, we strive to do what law libraries do best, which is provide a place for authentic, accurate, and authoritative resources that deepen our understanding of the laws governing our own country and all other countries of the world.

Categories: Research & Litigation

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