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Updated: 9 min 58 sec ago

It’s More than “Just a Bill” – Learn About U.S. Federal Statutes on June 18th at 11am ET

Thu, 06/04/2020 - 8:30am

This is a guest blog by Anna Price, a legal reference librarian at the Law Library of Congress.

Over the past few months, the Law Library of Congress has modified its course offerings in a variety of ways. We have introduced the Legal Research Institute, migrated our U.S. legal research orientations online, and hosted webinars on foreign and comparative legal topics. Library staff have worked diligently to roll out these products while working remotely.

On June 18th at 11am ET, the Law Library will present another webinar in our new Orientation to Legal Research series. This tutorial will cover U.S. federal statutes and give viewers a chance to put topical legal reference questions to the instructor.

Anna Price will present a webinar on Federal Statutes on 6/18/20 at 11am ET.

Attendees will learn about the legislative process and print and online statutory resources where they can research the U.S. Code, the U.S. Statutes at Large, and U.S. federal bills and resolutions. Other covered topics include researching legislative documents on Congress.gov and tracking amendments to federal statutes.

This webinar will be presented by Anna Price, a legal reference librarian at the Law Library. Anna holds a BS in communications from Ithaca College, a Juris Doctor degree (JD) from the University of Washington School of Law, and is completing her Master of Library and Information Science (MLIS) at the University of Washington iSchool.

To register for the webinar, please click here.

Categories: Research & Litigation

Anniversary of First American Space Walk

Wed, 06/03/2020 - 2:11pm

As we watch the United States take new steps in our space program, we also commemorate the 55th anniversary of the first American space walk on June 3, 1965.

The Russian launch of Sputnik in 1957 had spurred U.S. development in space capabilities. The National Aeronautics and Space Act (Pub. L. 85-568, 72 Stat. 426), which established the National Aeronautics and Space Administration (NASA), was signed by President Eisenhower on August 1, 1958. The specific purpose of this law can be found in its long title, “to provide for research into the problems of flight within and outside the earth’s atmosphere, and for other purposes.”

This law and the establishment of NASA signaled the start of the Project Mercury program, which ran between 1958 and 1963, with the primary goals of orbiting a manned spacecraft around the earth and retrieving that spacecraft.

Three years later, on May 25, 1961, President Kennedy appeared before a special joint session of Congress urging that these goals be expanded and the United States should fund a project to put a man on the moon.

Four years after Kennedy’s speech, the U.S. space program had advanced significantly. A series of spacecraft known as the Ranger, Surveyor and Luna Orbiters had been sent out to either land on or orbit the Moon and gather data on it. During the same period, the Gemini missions had advanced NASA understanding of what it would take for a person to live and work in space. The Gemini IV mission was focused on enabling a man to walk in space.

On June 3, 1965 astronaut Ed White took the first U.S. space walk. Fellow astronaut, Jim McDivit was the pilot for the craft as Ed took a 20 minute walk in space while Gemini IV orbited the earth from Hawaii to the coast of Florida. Although cosmonaut Alexei Leonov had been the first man to walk in space three months earlier, his walk had only lasted 10 minutes. And in the end, the United States won the first round of the space race, putting a man on the moon on July 11, 1969 with Apollo 11.

Tragically however, Ed White, along with Gus Grissom and Roger Chafee, had died two and a half years prior to the moon landing in a fire on the Apollo 1 launch pad on January 27, 1967.

[Ed White] over New Mexico (NASA photo ID S65-34635)

Categories: Research & Litigation

Newspaper Reports of Duels Fought at the Bladensburg Dueling Ground

Tue, 06/02/2020 - 8:30am

We have previously written about dueling, a practice by which gentleman who considered themselves of equal social standing would respond to a serious insult by fighting, sometimes to the death, with pistols. Many of these duels were fought at the Bladensburg Dueling Ground, located just outside the boundaries of Washington, D.C. One of my favorite digital collections offered by the Library of Congress is Chronicling America, a collection of digitized newspapers dating back to the nation’s founding that offers the ability to conduct full text searches. After paying a visit to Bladensburg several months ago, I decided to see if I could find some accounts of duels that were fought at Bladensburg in Chronicling America. A search for “duel” AND “Bladensburg” returned 42 results. Here are some of the highlights:

Burlington hawk-eye. (Burlington, Iowa) 1845-185x, June 12, 1851, Image 1

Delaware gazette. (Delaware, Ohio) 1855-1886, February 26, 1858, Image 2 part 1

Delaware gazette. (Delaware, Ohio) 1855-1886, February 26, 1858, Image 2 part 2

Delaware gazette. (Delaware, Ohio) 1855-1886, February 26, 1858, Image 2 part 3

Evansville weekly journal. (Evansville, Ind.) 184x-18xx, June 29, 1848, Image 2

Evening star. (Washington, D.C.) 1854-1972, August 25, 1860, Image 3

Green-Mountain freeman. (Montpelier, Vt.) 1844-1884, February 12, 1846, Image 2

Maumee express. (Maumee City, Ohio) 1837-1838, September 23, 1837, Image 2

New-York daily tribune. (New-York [N.Y.]) 1842-1866, June 17, 1843, Image 2

Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, September 27, 1860, Image 1 part 1

Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, September 27, 1860, Image 1 part 2

Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, September 27, 1860, Image 1 part 3

Semi-weekly standard. (Raleigh, N.C.) 1853-18xx, April 01, 1854, Image 3

The daily dispatch. (Richmond [Va.]) 1850-1884, February 24, 1858, Image 2

The Evansville daily journal. (Evansville, Ia. [i.e. Ind.]) 1848-1862, July 06, 1848, Image 2

Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, October 30, 1834, Image 2

Weekly North Carolina standard. (Raleigh, N.C.) 1850-1858, August 13, 1856, Image 1

Categories: Research & Litigation

New Report: Virtual Civil Trials

Mon, 06/01/2020 - 8:30am

While working from home together with other Law Library staff our foreign lawspecialists and analysts have been busy researching many legal issues related to COVID-19, including Continuity of Legislative Activities during Emergency Situations (March 2020) on measures taken in various countries for continuing legislative activities during the COVID-19 pandemic.

Recently, we also published a new report on Virtual Civil Trials. The report includes 25 foreign jurisdictions and details the rules regarding remote and virtual hearings, including changes made in response to COVID-19. The report only covers civil trials.

Source & Note: Map reflects results of 25-country survey on Virtual Civil Trials in Selected Countries (Susan Taylor, Law Library of Congress, 2020).

Many countries are dealing with the issue of providing access to local courts while various restrictions on movement and gatherings are in place to prevent the spread of COVID-19. Governments and courts have needed to weigh their legal obligations (including constitutional requirements as well as obligations under international law) to guarantee the right to a fair trial, including a timely trial, with protecting residents from being infected with the virus. As a result, a majority of the jurisdictions surveyed have adopted policies and procedures to enable remote access to the courts during the COVID-19 pandemic.

Several of the jurisdictions surveyed already allowed for remote proceedings, for example for the taking of evidence (Australia, Austria, Azerbaijan, Canada, China, Finland, Germany, Israel, Italy, Japan, New Zealand, Norway, Portugal, Russia, Spain), or if a party otherwise would not be able to participate in the trial (Azerbaijan, Norway). Other countries, such as Finland and Singapore, announced that during COVID-19 civil trials will only be heard in person if absolutely necessary. France, where use of videoconferencing appears relatively uncommon, has also called for more use of video technology during COVID-19. As illustrated in the report, the modes of public access to hearings have varied, from live broadcast over Youtube (England, which streamed its first hearing in March 2020) to written transcripts, or audio records (New Zealand).

As COVID-19 lingers, responses by courts continue. Since the report has been published, the Supreme Court of Norway has held its first remote hearing, and other countries such as New Zealand have issued special protocols specifically for remote hearings, and Singapore has extended its current rules permitting courts to only hear urgent matters and urging them to use remote hearings only until June 2020. Whether the pandemic will change how courts operate long-term remains to be seen.

For continued coverage of legal developments in foreign jurisdictions in response to COVID-19, visit our online resources that are continuously updated:

Stay healthy and safe!

Categories: Research & Litigation

The Lincoln Memorial – Pic of the Week

Fri, 05/29/2020 - 2:26pm

William Howard Taft was a man who held many titles in his life: president of the United States, Chief Justice of the Supreme Court of the United States, and most significantly for this post, chairman of the Lincoln Memorial Commission. He held this post during his tenure as president, and oversaw the planning and selection of the site for the memorial. Eleven years later, as the Chief Justice of the Supreme Court, he led the dedication of the Memorial on May 30, 1922.

Attempts had been made in the 19th century to erect a monument to Lincoln. In 1867, Congress passed a law (ch. XVIII, 15 Stat. 11) incorporating the Lincoln Monument Association. The purpose of this association was the erection of a “monument in the city of Washington, commemorative of the great charter of emancipation and universal liberty in America.” Later that year, Congress passed a joint resolution authorizing the secretary of war to place at the disposal of the Lincoln Monument Association damaged and captured brass and bronze guns and ordinance to be used in the casting of statutes of the principal figures in the proposed monument (no. 42, 15 Stat. 255). However, as this resolution notes, the association was charged with the raising of at least $100,000 for the memorial. Unfortunately, they did not meet this goal and neither memorial nor brass statutes were forthcoming.

Although there were subsequent attempts to legislate and fund a memorial for President Lincoln, it was not until February 9, 1911, that a law was signed to “provide a commission to secure plans and designs for a monument or memorial to the memory of Abraham Lincoln” (ch. 42. 36 Stat. 898). By December 1912, the commission had submitted a report to Congress with its recommendations.

The commission had worked quickly. In 20 months, they had held 16 meetings; appointed President Taft chairman and designated officers; and selected a location and design for the proposed memorial and appointed an architect.

The Lincoln Memorial Commission had asked the Commission of Fine Arts for recommendations on the memorial location. Four possible locations had been suggested and others had been considered, including Arlington National Cemetery, the Old Soldiers Home, and the grounds of the old Naval Observatory. The Commission of Fine Arts had unanimously recommended the Potomac Park site that had previously been recommended for the memorial (S. Rept. 57-166, also known as the McMillan Report). However, the Lincoln Memorial Commission was determined to be thorough in their review and three sets of plans with models were drawn up for their consideration: one set for the memorial at Potomac Park; one set for the memorial at the Old Soldiers Home on North Capitol Street; and finally a set of plans for a memorial on the high ground on Sixteenth Street, north of Florida Avenue.

After the Lincoln Memorial Commission decided on the Potomac Park location for the memorial, they considered six sets of plans for the memorial itself. These are attached to the commission’s report to Congress in the appendices. By April 1912, the commission had selected an architect, Henry Bacon, to complete the final design for the memorial and by July 3rd, he had submitted his final plans to the commission. One of the features of Bacon’s plans was the incorporation of various materials from different states, meant to signal the importance of the Union to Lincoln. In 1914, the commission appointed Daniel Chester French to carve and assemble the statue of Lincoln, which would be the centerpiece in the memorial’s interior.

Statute of Abraham Lincoln by Daniel Chester French, Lincoln Memorial / Photograph by J. Gesley

After the commission finished its work, Congress appropriated $300,00 to begin work on the memorial on June 23, 1913 (ch. 3, 38 Stat. 4, 36). Congress continued to appropriate money for the memorial each year through 1921 and the main body of work on the memorial with $5,000 being appropriated in 1921 (ch. 24, 41 Stat. 163, 180) to cover the costs of dedicating the memorial. Construction began in February 1914 and continued steadily, though work slowed with the entry of the United States in World War I in April 1917.

The work was finally completed in 1922, and on what was reported to be a blazing hot day, the Lincoln Memorial was dedicated. Chief Justice Taft, as the head of the Lincoln Memorial Commission, presented the monument to President Harding. Taft and Harding gave speeches, as did Robert Rossa Moton of the Tuskegee Institute, the only African American speaker at the dedication. Various other notables attended the dedication including, Vice President Calvin Coolidge and Robert Todd Lincoln, the only surviving child of President Lincoln and Mary Todd Lincoln.

There had been some controversy over the selection of Potomac Park for the Lincoln Memorial. However, the Lincoln Memorial Commission quoted extensively from the recommendation of the Commission of Fine Arts in justifying the selection of this site, and for those of us who have stood on the National Mall and seen the memorial we can only applaud their foresight:

The comparative isolation of the Potomac Park site in the midst of a large area of undeveloped vacant land constitutes a peculiar advantage. For a long distance in every direction the surroundings are absolutely free for such treatment as would best enhance the effect of the Memorial… it is a simple matter to raise in this area an eminence suited to the site of a great memorial … In judging the site of a memorial to endure throughout the ages we must regard not what the location was nor what it is today but what it can be made for all time to come… A memorial upon this location need not be so high … as to bring it into competition with the Washington Monument … From the hills of the District and of Virginia the constantly recurring views of a great Lincoln Memorial … would be impressive in the highest degree.

Exterior of the Lincoln Memorial / Photograph by J. Gesley

Categories: Research & Litigation

Pirates, Privateers, and Civil War Maritime Laws

Thu, 05/28/2020 - 9:20am

This is a guest blog by Anna Price, a legal reference librarian at the Law Library of Congress.

As a remote metadata intern with the Law Library last summer, I spent quite a few hours after work reading through the Piracy Trials collection. One item in particular caught my attention: a letter from Charles P. Daly, Chief Justice of the New York Court of Pleas, titled Are the Southern Privateersmen Pirates? Having never investigated this subject previously, this heartfelt and persuasive letter questioning the government’s designation of Confederate privateersmen during the Civil War as pirates sparked my curiosity and led to a lot of digging. Here’s what I learned:

Privateers” were privately-owned merchant ships that the government, in wartime, permitted to attack the enemy’s trade vessels. To incentivize this dangerous activity, the ship’s crew profited by selling the captured vessel’s bounty through a process dictated by federal statutes. To legitimize their actions, the privateers had to obtain “letters of marque” from the federal government. They also were obligated to participate in a court-administered process, which would determine whether the prizes from their exploits were lawful; if so, the cargo would be sold at auction, with the proceeds going to the privateersmen.

This system was pivotal during the War of 1812. In a letter discussing the British Navy at the start of the war, Thomas Jefferson accurately predicted, “Their fleet will annihilate our public force on the water, but our privateers will eat out the vitals of their commerce.” The practice of privateering was all but eliminated by the 1856 Treaty of Paris, which was signed by 55 nations. The United States, however, did not sign the treaty, meaning that by the time the Civil War broke out, privateering remained an established practice in the United States.

The Confederate States privateer Savannah, letter of marque no. 1, captured off Charleston by the U.S. Brig Perry, Lieut. Parrott. 1861. http://hdl.loc.gov/loc.pnp/cph.3g13450

During the Civil War, Jefferson Davis issued letters of marque to Confederate vessels, under a process similar to the one used by the Union. In response, President Lincoln issued “Proclamation 81 – Declaring a Blockade of Ports in Rebellious States.” This proclamation deemed Confederate-issued letters of marque “pretend” because the United States did not recognize the Confederacy as a legitimate nation, and warned that all persons manning such vessels and attacking Union ships would be tried and sentenced as pirates.

Designating these individuals as pirates, not privateersmen, was a distinction with a huge difference. Laws involving piracy had been in place since the First Congress in 1790 and provided:

That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under colour of any commission from any foreign prince, or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon, and robber, and on being thereof convicted shall suffer death. (Emphasis added)

Put another way, Confederate privateersmen who were captured and criminally charged could be convicted of piracy and sentenced to death.

Some jurists opposed this conclusion, including Chief Justice Daly. Visitors to Law.gov can read his brief analysis, but some sections are worth highlighting. Likening the privateersmen to “rebels upon the ocean,” Chief Justice Daly feared that the Union would be setting a regrettable precedent in differentiating Confederate prisoners captured on the sea from those on the battlefield. “As all who have participated in the rebellion are alike guilty of the same political offence, and as there is in point of fact no difference between them, the question then arises – is every seaman or soldier taken in arms against the Government to be hung as a traitor or pirate? If the matter is to be left to the Courts, conviction and the sentence of death must follow in every instance.”

He also feared that escalating punishments like this would exacerbate wartime tactics and hinder attempts to maintain the Union at the war’s end.

In conclusion, we are not to forget that we are carrying on this war for the restoration of the Union, and that every act of aggression not essential to military success, will be separate more widely the two sections from each other, and increase the difficulty of cementing us again in one nationality….

War, when conducted in accordance with the strictest usages of humanity, is, as all who have shared in the recent battles know, a sufficiently bloody business; and if we are to add to its horrors by hanging up all who fall into our hands as traitors or pirates, we leave the South no alternative but resistance to the last extremity; and should we ultimately triumph, we would have entailed upon us, as the consequences of such a policy, the bitter inheritance of maintaining a Government by force, over a people conquered, but not subdued.

While some Confederate privateersmen were tried as pirates, and a few were found guilty, none were executed. Instead, they were treated as prisoners of war and eventually exchanged for Union troops being held by the South.

If you enjoyed learning some of the legal issues surrounding pirates and privateers, be sure to check out more on Piracy Trials and Are the Southern Privateersmen Pirates? Letter to the Hon. Ira Harris, United States Senator, by Charles P. Daly

As a bonus, here are two other good quotations from the letter:

  • “Pirates are the general enemies of all mankind — hostes humani generis; but privateersmen act under and are subject to the authority of the nation or power by whom they are commissioned. They enter into certain securities that they will respect the rights of neutrals; their vessel is liable to the seizure and condemnation if they act illegally, and they wage war only against the Power with which the authority that commissioned them is at war.” p. 3
  • “It is now, and it will continue to be, carried upon both sides, by a resort to all the means and appliances known to modern warfare; and unless we are to fall back into the barbarism of the middle ages, we must observe in its conduct those humane usages in the treatment and exchange of prisoners, which modern civilization has shown to be equally the dictates of humanity and of policy.” p. 9
Categories: Research & Litigation

Domestic Violence: Resources in the United States

Wed, 05/27/2020 - 8:29am

This is a guest post by Ann Hemmens, a senior legal reference librarian with the Law Library of Congress.

We recently received a question concerning resources available for victims of domestic violence. During this coronavirus pandemic we are seeing news articles about the increased reporting of domestic violence, also called intimate partner violence. According to the Centers for Disease Control, “[i]ntimate partner violence (IPV) is abuse or aggression that occurs in a close relationship. ‘Intimate partner’ refers to both current and former spouses and dating partners.”

This blog post focuses specifically on resources available, at the national and local level, within the U.S., for individuals seeking assistance regarding domestic violence or intimate partner violence. The National Domestic Violence Hotline provides referrals to agencies in all 50 U.S. states, the District of ColumbiaPuerto Rico, Guam, and the U.S. Virgin Islands. The hotline is staffed 24 hours a day, seven days a week. They can be reached via phone [1-800-799-SAFE (7233) or 1-800-787-3224 (TTY) or (206) 518-9361 (video phone only for deaf callers)] or by texting LOVEIS to 22522 or online through the website. On the website homepage you will find a section titled “Staying Safe During COVID-19.”

Several federal government websites provide comprehensive collections of resources available at the state and national level:

Resources by State on Violence Against Women, from the Office of Women’s Health within the U.S. Department of Health & Human Services
Family Violence Prevention and Services Resource Centers, from the Family and Youth Services Bureau, within the U.S. Department of Health & Human Services
Watch for Warning Signs of Relationship Violence, from My Healthfinder, within the U.S. Department of Health and Human Services
Domestic Violence, from the Office on Violence Against Women, within the U.S. Department of Justice
Intimate Partner Violence, from the Injury Center, within the Centers for Disease Control and Prevention

Many state and local governments (cities, municipalities, and counties) also provide resources. For example, the state of Massachusetts has information on sexual and domestic violence prevention and services. The Baltimore Mayor’s Office of Criminal Justice posts information on domestic violence resources available. The Phoenix Police Department has posted information online on how to get help. The Oregon Judicial Branch has information on domestic violence resources, including crisis help, financial assistance, legal assistance, protective (restraining) orders and more.

To locate federal legislation proposing to address domestic violence during this public health emergency of the COVID-19 pandemic, you can conduct a keyword search, limited to the current 116th Congress, in Congress.gov. You might use search terms such as “domestic violence,” “intimate partner violence,” or “violence against women act.” For guidance on constructing a search, see the Help page.

Libraries in your area, including public, academic, and law libraries, may have posted guides online for local resources and assistance. Here are a few examples:
• Wisconsin State Law Library has posted information on domestic abuse, including services, reporting, laws, and more
• San Diego Law Library has posted a Civil Harassment and Domestic Violence Actions guide
• San Antonio Public Library has posted a COVID-19 guide with a section on domestic violence resources
• Cornell Library has posted a Domestic Violence Awareness Month guide, focused on print and electronic resources

If you have research questions, please submit a request online through our Ask-A-Librarian service.

Categories: Research & Litigation

Congress.gov New, Tip and Top for May of 2020, Part 2

Tue, 05/26/2020 - 11:57am

Earlier this month, Andrew shared the exciting news about several significant new features that had been added to Congress.gov including the new Global Search bar, the addition of Committee Prints, and translation of the Overview of Legislative Process video into Spanish.

The enhancements for this month’s second release include a redesigned Congressional Record header. We have reformatted the header information on the Congressional Record pages so that the header information, including date, Congressional Record volume, and issue number, now appears as one continuous header rather than a series of stacked headers in different fonts and colors. This change has been made in response to user feedback (please feel free to share your feedback through the Congress.gov survey). For those of us who are concerned with citation formats, this new format is particularly useful as it means we can just copy and paste the header.

The redesigned Congressional Record header on Congress.gov.

Enhancement

Enhancement – Congressional Record – Page Redesign

  • Congressional Record pages have a streamlined look so you see more of the text higher on the page.

Search Tip

Get a quick refresher on the legislative process with the legislative process videos on Congress.gov. The Overview of Legislative Process video is also available in Spanish.

Top Ten Most-Viewed Bills

These are the most-viewed bills for the week of May 17, 2020.

1. H.R.6666 [116th] COVID-19 Testing, Reaching, And Contacting Everyone (TRACE) Act 2. H.R.748 [116th] CARES Act 3. H.R.6800 [116th] HEROES Act 4. H.R.5717 [116th] Gun Violence Prevention and Community Safety Act of 2020 5. S.737 [116th] Building Blocks of STEM Act 6. H.R.3548 [116th] Bolstering Long-Term Understanding and Exploration of the Great Lakes, Oceans, Bays, and Estuaries Act 7. H.R.4979 [116th] Rural STEM Education Act 8. H.R.6172 [115th] Reunite Children With Their Parents Act 9. H.R.6496 [116th] Emergency Money for the People Act 10. H.R.6610 [116th] Director of Pandemic and Biodefense Preparedness and Response Act

 

Categories: Research & Litigation

Law Day 2020 Event Recap: Social Movement Changing America: The Legacies of the 19th Amendment

Fri, 05/22/2020 - 12:41pm

The 2020 Law Day theme is “Your Vote, Your Voice, Our Democracy.” Image courtesy of the American Bar Association.

On April 30, the Law Library of Congress, in collaboration with the American Bar Association, presented the 2020 Law Day program titled “Social Movement Changing America: The Legacies of the 19th Amendment.”

The event was a moderated panel discussion, with Kimberly Atkins –senior news correspondent, WBUR-Boston and contributor, MSNBC–as the moderator. Panelists included: Martha S. Jones, Society of Black Alumni Presidential Professor and professor of history, Johns Hopkins University; Thomas Saenz, president/general counsel, Mexican American Legal Defense and Educational Fund; and Julie Suk, dean and professor of sociology, City University of New York Graduate Center. The program also featured an introduction by Law Librarian of Congress, Jane Sanchez and American Bar Association President, Judy Perry Martinez.

Ratified on August 18, 1920, the 19th amendment prohibited states and the federal government from denying the right to vote to citizens on the basis of sex. The panelists discussed a variety of topics surrounding the 19th amendment, including the importance of prior amendments to its development and execution, the goal and its effect on society, and how other minority populations were affected by it. To read more about the presentation and its presenters, click here to see the event program.

Law Day is a national day set aside to celebrate the rule of law and an opportunity to understand how law and the legal process protect liberty and promote justice. This year’s Law Day theme–“Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100”–dovetails with the Library of Congress’ exhibition, Shall Not Be Denied: Women Fight for the Vote, which celebrates the ratification of the 19th Amendment.

For more webinars and events from the Law Library of Congress, visit our Legal Research Institute.

Categories: Research & Litigation

FALQs: Islamic Religious Authority and Pakistan’s Response to COVID-19

Thu, 05/21/2020 - 4:00pm

The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq presented a webinar on the subject matter of this post on May 21, 2020. He has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic LawSedition Law in India, and FALQ posts on Proposals to Reform Pakistan’s Blasphemy Laws and Article 370 and the Removal of Jammu and Kashmir’s Special Status.

The Law Library of Congress has published a number of blog posts and Global Legal Monitor articles related to COVID-19 responses in different jurisdictions.

Lahore – the Great Mosque of Vazir Khan (William Henry Jackson, photographer, Feb. 8-11, 1895). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/wtc.4a02629.

This post provides an overview of Pakistan’s governmental responses to COVID-19 involving religious activity, religious gatherings, and processions, particularly leading up to and during the holy month of Ramadan, and the level of cooperation and conflict among religious scholars and Islamic institutions. It focuses on the federal government’s response and the response of the government of the Sindh province.

1What is the constitutional and legal framework for the management of epidemics and health emergencies in Pakistan?

Pakistan is a federation comprised of four provinces, two autonomous territories, and one federal territory. The constitutional division of legislative responsibilities between the federal government and the provinces is enumerated by legislative subject lists in the Fourth Schedule of Pakistan’s constitution. Public health and health emergencies appear to come under the constitutional domain of provincial governments as residual subject matters that were devolved to the provincial governments under the 18th amendment to the constitution. However, under Part 1 of the Fourth Schedule, the federal government does have exclusive jurisdiction over port quarantine and hospitals connected to port quarantine.

Like India, Pakistan inherited the Epidemic Diseases Act 1897, a British colonial-era law, which gave both the federal and provincial governments powers to regulate epidemic diseases. This law was replaced by the Epidemic Diseases Act, 1958, and after the 18th Amendment, this law was adopted as provincial-level legislation. Section 2 of the Act grants the relevant provincial government the “power to take special measures and prescribe regulations as to dangerous epidemic disease.” In the province of Sindh, this Act was replaced with the Sindh Epidemic Diseases Act, 2014, which aimed to consolidate the law for the “prevention of the spread of dangerous epidemic disease in the Province of Sindh” but more or less retains the limited provisions from the 1897 Act. More recently, in late March 2020, the province of Punjab promulgated the Punjab Infectious Diseases (Prevention and Control) Ordinance, 2020, in response to the COVID-19 epidemic, providing more extensive and detailed powers to deal with the prevention and control of epidemic diseases.

2What are some of the relevant constitutional and legal frameworks for Islamic law, Islamic institutions, and mosques in Pakistan?

The current 1973 constitution declares that the official name of the country is “the Islamic Republic of Pakistan” and that Islam is the state religion. The Objectives Resolution, Pakistan’s foundational constitutional document that set out the objectives on which the future constitution of the country would be based, was adopted by the Constitutional Assembly of Pakistan on March 12, 1948, and was later incorporated as a substantive part of the current constitution through article 2-A. The resolution stipulates that “sovereignty over the entire universe belongs to God Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust” and “that Muslims were to be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah.” Article 31 makes the “Islamic way of life” a principle of policy and calls on the state to endeavor to secure the proper organization of such things as auqaf (plural of waqf, a form of charitable endowment under Islamic law “whose revenue is dedicated to a specific purpose in perpetuity”) and mosques.

The Ministry of Religious Affairs is the main federal government agency responsible for religious matters, but its work is largely limited to functions such as research, training of ulema (religious scholars), and overseeing pilgrimages outside Pakistan, particularly to India and Saudi Arabia for Umrah and Hajj. Provincial governments also have religious affairs or awqaf departments that maintain and regulate historic and prominent religious shrines, mosques, and other waqf properties.

The Council of Islamic Ideology (CII) is a federal constitutional body that provides advice on Islamic law issues but has no law-making authority. Its functions include advising the president, Parliament and provincial assemblies whether a proposed law is or is not repugnant to the Injunctions of Islam and to make recommendations as to the measures for bringing “existing laws into conformity with the Injunctions of Islam.”

3What initial measures have the federal and provincial governments taken to deal with religious congregation in Pakistan?

Lahore – the Sonali Musjid, or Golden Mosque (William Henry Jackson, photographer, Feb. 8-11, 1895). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/wtc.4a0263.

Religious gatherings have been identified as a significant means of local transmission of COVID-19 in Pakistan and other countries. For example, in early March 2020, the Tablighi Jamaat, an offshoot Deobandi revivalist group known for its missionary work, held a conference outside the city of Lahore that was subsequently reported as accounting for 27% of cases in the country by late April. On March 17, the Pakistan Ulema Council (PUC), a nongovernmental organization of Islamic clerics and legal scholars from different schools of thought, issued a decree telling people to postpone all political/religious gatherings, follow issued government measures/guidelines, and postpone convocations and examinations. However, there were no recommendations to close mosques or limit the number of congregants during prayers. Instead, the PUC called for the implementation of certain safety measures in mosques, such as distancing between rows of worshipers and advising elderly and sick to pray at home.

The minister of religious affairs and the president of Pakistan are heavily involved in discussions with religious scholars on government measures impacting mosques. In March 2020, the National Security Committee also tasked the CII with consulting the ulemaregarding the holding of religious congregations especially the Friday prayers.” The CII also forwarded a set of recommendations to the federal cabinet and religious scholars, which included postponing religious gatherings. The CII called on “clerics and the public to cooperate with government measures” and to keep the Friday prayers short and urged the “elderly and children not to visit mosques.” On April 2, 2020, the CII provided more detailed points of guidance in a press release to the public and government, including that it

  • supported the decision to limit congregational prayers (saying that there should not be a perception that mosques are being locked down)
  • urged people to stay at home to practice social distancing and called upon them to follow safety precautions
  • wanted the government to cooperate with imams and not link the virus to a particular religious group or sect

In Pakistan, various lockdowns were implemented in March in response to the COVID-19 pandemic. These were largely imposed by provincial governments and decisions to extend or ease the measures were being taken in coordination with the federal government through a National Coordination Committee. The federal government has also issued various guidelines and standard operating procedures (SOPs), including on social distancing, home quarantine, and prayer congregations during Ramadan.

Prior to Ramadan, the federal government did not close mosques but attempted to limit congregants at prayers. On March 26, 2020, the President of Pakistan, during a video conference with governors and religious scholars from various schools of thought, “urged Ulema to advise and educate the people to stay indoors and offer their prayers in their homes to help contain spread of covid-19.” On the same day, the federal minister of religious affairs is reported to have said that “mosques would remain open and congregational prayers would be offered in ‘limited numbers’,” and the next day he announced gatherings would be limited to a maximum of five people during congregational prayer.

The Sindh provincial government was the first province to attempt to impose a stringent lockdown strategy. On March 22, 2020, it issued an order pursuant to section 3(1) of the Sindh Epidemic Diseases Act, 2014, which included a ban on religious gatherings and congregations with the exception of “unavoidable religious rites” like funeral prayers and burial rites. In response to the above federal decision, the Sindh government stated that citizens will not be allowed to offer congregational prayers/Friday prayers in mosques, with only mosque administrators (three to five people) able to offer congregational prayers. However, attempts at the federal and provincial level appeared to have been unsuccessful as, although attendance at prayers was reported to have dropped significantly across Pakistan, it was “not close to the government’s limit,” and enforcement efforts also appeared to be ineffective.

4What were subsequent issues and measures that arose in anticipation of and during the month of Ramadan?

In the days leading up to the start of Ramadan (April 23, 2020), the federal government was under pressure from religious scholars and religious political parties to ease the measures against congregational prayers. On April 14, a joint statement was issued by clerics and leaders of religious parties calling for the lifting of congregational prayer limits as long as certain safety measures were taken. The main rationale was that, like other essential things that were open, “prayers are essential for Muslims.” One high-profile Deobandi scholar, Muhammad Taqi Usmani, felt that the “restriction of three or five people at mosques is not proving practical.” Prime Minister Imran Khan was reported to have assured the clergy that he would meet with religious scholars to discuss the restrictions.

On April 18, after a consultative meeting with religious scholars chaired by the president of Pakistan, the federal government and clergy reached a 20-point agreement on a Standard Operating Procedure (SOP)/Guidelines to allow prayer congregations and tarawih prayers during the holy month of Ramadan. Tarawih are the optional congregational prayers performed by Muslims at night after the mandatory night prayer during Ramadan. Some of the points of the agreement (for a more complete list see here) included that there would be no carpets in the mosques; floors would be cleaned thoroughly with chlorine; there should be six-foot distance between people offering prayers; mosque courtyards would preferably be used instead of halls; and ablutions should be done at home with hands being washed with soap for 20 seconds. Congregants should observe social distancing and refrain from any gathering after prayers. Mosques should be avoided by children, those aged 50 and above, and those suffering from any disease, including flu, fever, and cough. Committees should be established to ensure implementation of the guidelines.

The agreement concludes that the government can review the agreement during Ramadan if precautionary measures were not being adhered to or the number of coronavirus infections rises sharply. The prime minister’s stated position on the agreement was that it is a “middle ground” as people would have insisted on congregating during Ramadan anyway, and that Pakistan is an “independent society” and the government cannot force people not go to mosques.

The Sindh provincial government, however, in reaction to a surge of COVID-19 cases in the province, decided to limit tarawih prayers to only the staff of mosques, with a restriction of “around four to five people.” On April 23, an order was issued by the Sindh government that stated tarawih prayers are not farz (mandatory) prayer and should be offered at home “as per sunnah.” In late April, Dawn news reported that “more than 80pc of mosques in Punjab and the federal capital did not implement the agreement reached between the government and Ulema regarding the first Taraweeh congregations.”

On May 8, 2020, religious scholars and groups of the Shi’i sect expressed to the government their resolve to carry out processions to commemorate Yaum-e-Ali (commemorating the martyrdom of Imam Ali (the first Shi’i Imam and fourth Sunni Caliph). On May 11, the federal government issued a notification that the 20-point SOP will remain applicable during the last ten days of Ramadan and during Eid prayers and that no procession of any kind during the last ten days of Ramadan will be allowed. All major provinces also barred religious processions, with the Sindh government amending the above order twice on April 27 and May 11 to ban religious gatherings, processions, and rallies during the holy month, including the Yaum-e-Ali processions.

On May 18, as the government began easing the lockdown in phases, prominent clerics and scholars, including Muhammad Taqi Usmani, issued an announcement for the “resumption of five-time congregational prayers at mosques across the country” and “appealed for a formal announcement by the government to lift the ban on congregational prayers and Taraveeh as it would give people some confidence and help remove fear from society.”

 5What are some of the religious, political, and financial factors that make cooperation between the religious groups and the government more challenging?

Although Islam has always played a significant role in Pakistan’s state and society, it was during the 1970s and 1980s that the most significant expansion of the political role of Islamic clergy and religious political parties occurred. There was a vast expansion of madrassas (religious schools) through state zakat taxation, and foreign funding was provided by Saudi Arabia to help recruit militants during the Soviet-Afghan war. Moreover, the dictator Zia ul Haque’s Islamilization process – as Professor Arsalan Khan observes – “expanded the scope of Islamic law in Pakistan, establishing the Federal Shariat Courts to ensure that laws are in keeping with Islam, passed a range of anti-women (Hudood Ordinances) and anti-minority (Ordinance XX against Ahmadis) legislation, mandated the teaching of Islam in schools, and generally promoted Islamic institutions.”

Although religious parties do not currently tend to win majorities or pluralities in general elections, more mainstream parties often court their support during elections and have at times been coalition partners at the federal and provincial level, giving them significant political influence. Also, the state is hyper-cautious on sensitive religious wedge issues, such as Pakistan’s blasphemy law, fearing political agitation and street protests, so often lack the political will to confront clerics and religious groups.

Furthermore, although Islam is central to the state’s identity, Islamic clerical authority in Pakistan is not fully molded with the state apparatus, unlike countries like Iran. This makes it much more challenging to align Islamic jurisprudential reasoning and discourse with state policy. At an administrative level, although many historic mosques and shrines are considered waqf properties and are under the control and operation of provincial awqaf and religious affairs departments, most mosques in Pakistan appear to be subject to either minimal or no regulation – with governments having little control over their day-to-day operations. Therefore, it is difficult for the state to impose and enforce rules related to COVID-19.

Some academic scholars think the clerical perception of the closure of mosques and restrictions on congregational prayer is not just a matter of this being a threat to Islamic authority. Some observers note there is history in the Islamic legal tradition of adjusting jurisprudential (fiqh) positions in response to emerging situations (many scholars rely on Islamic doctrines such as maslaha (public interest) to do so “in cases not regulated by the Quran, Sunnah, or qiyas (analogy)”), but it usually takes some time for this to happen. One professor of South Asian Islamic studies, Ali Altaf Mian, observes that religious schools of thought in South Asia, such as the Deobandi school, “prefer to ground their fatwās in legal precedents and longstanding modes of legal reasoning intrinsic to their School instead of integrating modern knowledge or appealing to maṣlaḥah.” He notes that “emergent material realities ultimately change fiqhi perceptions, and it is only a matter of time before traditionalists’ perceptions change for the better. [T]hen, they often come around to mainstream perceptions of emergent realities.” However, he considers the problem is that, with a virulently spreading epidemic where every day and week counts, “we can’t wait for perceptions to be transformed by emergent material conditions.”

The difficulty of evolving jurisprudence is not the only factor underlying the stance of religious parties and scholars in Pakistan. Political and religious competition between various Islamic sects and movements (Deobandi, Barelvi, Ahl-Hadith, etc.) has also lead to more hard-line stances over certain religious issues. Professor Arsalan Khan notes that

[t]he politics around Islamic authority in Pakistan is an immensely competitive space, and this competition shapes the refusal of the ulema to implement the closing of mosques despite the dire threat of Covid-19.

Nobody wants to be seen as backing down from the commitment to a foundational religious practice like congregational prayer. In the competition for being the authentic and true representatives of Islam, admitting the need to close mosques is to cede the symbolic value of Islamic faith to others.

One news report indicates that this pressure on religious leaders also stems from a fear of lower rungs of the organizations that could replace them. Moreover, there is also a major financial incentive for imams and mosque administrators not to close mosques. All mosques, whether administered by the state or not, rely heavily on public donations – particularly during the month of Ramadan. As reported by the New York Times, “money can make or break an imam and the followings they try to build, often to parlay into political power to challenge the government.”

Categories: Research & Litigation

Italy: A New Silk Road Between Italy and China – the Belt and Road Initiative

Wed, 05/20/2020 - 9:00am

The following post is written by Dante Figueroa, a senior legal information analyst at the Law Library of Congress. He has recently written for In Custodia Legis on the Italian Parliamentary Library; Spanish Legal Documents (15th to 19th Century); and Recent Legislation Enacted by Italy to Tackle COVID-19.

Photo by Flickr user Derell Licht (Oct. 8, 2006), used under Creative Commons BY-ND 2.0).

Over a year ago, on March 23, 2019, Italy signed a Memorandum of Understanding with China to officially become a member of the Belt and Road Initiative (BRI), also known as the “One Belt One Road” (OBOR). Italy and China followed up to their commitments by signing a total of 29 trade and political agreements (19 institutional agreements and 10 commercial agreements) worth about 2.5 billion euros (US$2.8 billion) to implement the so-called New Silk Road Project.

The Ancient Silk Road

The ancient Silk Road was a roughly four-thousand mile route built to facilitate trade between Europe and China running through Central Asia, now modern-day India and Pakistan. German geographer and scientist Ferdinand von Richthofen is credited with coining the name “silk route” (“Seidenstrasse”) in 1877 A.D.

The ancient Silk Road originated between 130 BC—1453 A.C., during the Tang Dynasty, and flourished until the Mongol incursion into Europe led the Ottoman Empire to boycott trade with China, and Europe found the sea route to trade with China directly.

The Silk Road was used for centuries to transport westward Chinese exports of, among other things, gold and other precious metals and stones, tea, china, perfumes, rice, paper and gunpowder. In turn, imports to China included, among other things, horses, saddles and riding tack, grapevines and grapes, dogs and other exotic and domestic animals, animal furs and skins, honey, textiles, slaves, and weapons and armor.

The BRI / OBOR

The Belt and Road Initiative was first announced by Chinese President Xi in 2013 during a visit to Kazakhstan and Indonesia, with a vision of creating an extensive network of railways, energy pipelines, highways, and streamlined border crossings. This initiative pivots around a land and maritime route that encompasses 65 countries and involves about 70% of the world’s population. In the case of Italy, the trade deal opens the whole national industrial system to Chinese investment.

Ancient Silk Road Map by Flickr user Patrick Gray (Aug. 20, 2016), used under Creative Commons BY-ND 2.0.

Italy’s Participation in the New Silk Road Project

Italy’s government, led by the Five Star Movement (5 Stelle) signed the memorandum of understanding for the trade deals with the Chinese generally known as the “Economic Silk Road and The Initiative for a Maritime Silk Road for the 21st Century” in March of 2019.

The trade deals call for China’s financing of a large number of infrastructure projects in Italy, together with an incentive to use Chinese-manufactured products. The areas covered by the deals are: energy, finance, agricultural produce, gas and energy, and engineering firms. China’s Communications and Construction Company will be given access to the port of Trieste to enable links to central and eastern Europe. The Chinese will also be involved in developing the port of Genoa.

China has already funded an important number of infrastructure projects in Italy during the last few decades, involving railroads, roads, and ports. The Chinese construction companies have been financed by loans from Chinese banks. In 2019 alone, Chinese imports into Italy were more than double Italian exports into China.

Criticism of the Italy-China Trade Deals

In the past, commentators have strongly criticized the growing economic influence of China over Italy. A prominent Italian political leader has labeled the current trade deals as a form of “colonization” by a foreign government. Specifically, criticism was drawn from the Chinese access to the ports of Trieste and Genoa. Even before the deals were signed, the EU issued a statement on “China’s Growing Economic Power and Political Influence.”

On March 9, 2019, the U.S. National Security Council spokesman commented that Italy was a major economy and that there was “no need for the Italian government to lend legitimacy to China’s infrastructure vanity project.”

The government’s counter-criticism focuses on the fact that Italy is currently experiencing enormous deficits in infrastructure and other key areas of the economy as China offers available capital in vast amounts to meet such Italian needs through the establishment of this new Silk Road, which the Italian government officially joined in March 2019.

Categories: Research & Litigation

FALQs: The Unified Patent Court and Unitary Patents in Europe

Tue, 05/19/2020 - 9:30am

The following is a guest post by Zeynep Timocin Cantekin, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress.

On March 20, 2020, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) published its decision on the constitutional complaint against the ratification of the Unified Patent Court (UPC) Agreement. It stated that the German Act of Approval “is void on the ground that the German Parliament did not adopt the law with the required two-thirds majority necessary to amend the Constitution.” This judgment delays the commencement of the operation of the UPC and unitary patents, because the UPC Agreement enters into force only after the 13th European Union (EU) member state has ratified and deposited the UPC Agreement, including the three EU member states with the highest number of European patents in effect. Those member states used to be France, Germany, and the United Kingdom (UK) before Brexit. (UPC Agreement, arts. 84, 89.) The language of the UPC Agreement has not been amended post Brexit. Currently, 16 member states have ratified the UPC Agreement, including the United Kingdom and France. Before the decision of the German Federal Constitutional Court, the unitary patent system was expected to start at the end of 2020.

This blog post will provide a primer on the proposed unitary patent protection scheme (UPP scheme) and will explain the fundamentals of unitary patents and the UPC.

1. What is the current patent law regime in Europe?

The current European patent system is not a singular centralized system. There are three ways to obtain a patent in the territories of the EU member states. The patent applicant can obtain a national patent through the national patent offices, apply for a European patent through the European Patent Office (EPO) under the legal framework of the European Patent Convention (EPC), or apply for an international patent under the legal framework of the Patent Cooperation Treaty (PCT) at the World Intellectual Property Organization (WIPO). However, the EPC and PCT systems only simplify the application procedure and national courts are still the competent authorities that rule on infringement and validity issues.

A “classic” European patent is a bundle of national patents issued under the EPC, which is an intergovernmental treaty and not an EU law instrument. In order to obtain a European patent, the patent applicant files an application with the EPO and lists any of the 38 contracting states to the EPC, which include all 27 EU member states, in which they wish to register a patent. Once granted, European patents take effect as separate national patents, and patent holders have to validate their patents separately in each designated country and pay separate renewal fees. Although the application can be filed in any of the three working languages of the EPO (English, French, and German), the patent proprietor must translate the patent into the language of the designated countries in order to make it valid in that country. Either the Opposition Division or the Boards of Appeal of the EPO can adjudicate limitation, revocation, and opposition proceedings within 9 months after the grant; however, only national courts have jurisdiction to rule on infringements.

The headquarters of the EPO in Munich. Photo by EPO.

2. What is a unitary patent?

Since the 1970s, EU member states have tried to create a unitary patent protection scheme to harmonize court practice and to simplify patent costs, dispute settlements, and translation requirements. In December 2012, the “unitary patent” was finally created as an enhanced cooperation mechanism. An enhanced corporation mechanism is a procedure which allows a minimum of nine EU member states to work together in a certain area. The unitary patent will be governed by two regulations, Regulation (EU) No 1257/2012 and Council Regulation EU No 1260/2012, both of which will be applicable once the UPC Agreement enters into force. On March 10, 2011, 25 EU member states (excluding the UK after Brexit) authorized their country’s participation in the enhanced cooperation mechanism for the creation of the UPP. Spain and Croatia do not participate in the enhanced cooperation mechanism and unitary patents will not be available there.

The unitary patent, or as it is officially called, the “European patent with unitary effect,” is a patent that would be granted by the EPO under the rules of the EPC. (Regulation (EU) No 1257/2012, art. 2.) There would be a single procedure to obtain a unitary patent throughout the territories of all of the participating member states. Once granted, a patent proprietor would pay a single renewal fee to the EPO. Fifty percent of the renewal fee would be retained by the EPO and the rest would be distributed to the participating member states in accordance with the EPC and the agreed-upon distribution key.

3. How can patent applicants obtain unitary patents?

The application and examination procedure in the EPO would remain the same. The patent applicant would file for a classic European patent with the EPO. (EPC, art. 14; Regulation (EU) No 1257/2012, art. 9; Council Regulation (EU) No 1260/2012, art. 3.) After the grant of the European patent appears in the European Patent Bulletin, the patent proprietor would have one month to decide whether to request unitary effect and would have to file this request together with one other translation of the patent specifications. If these requirements are met, the EPO would register the patent as a unitary patent in the “Register for unitary patent protection,” which would be part of the European Patent Register. (Regulation (EU) No 1257/2012, arts. 9, 3(1); Council Regulation (EU) No 1260/2012, arts. 3, 4, 6.) Unitary patents would coexist with national patents and classic European patents for non-participating member states and non-member states in the EPC. However, double protection by a European patent and a unitary patent for the same territory would not be allowed. The unitary patent would cover only the territories of the member states who have ratified the UPC Agreement at the time of the grant.

4. What is the Unified Patent Court and why it is needed?

The UPC would be a court for the contracting EU member states of the UPC Agreement. The UPC Agreement is not open to non-EU states and not all EU member states have acceded to the UPC Agreement. (UPC Agreement, art. 84 para. 1.) The UPC would have exclusive jurisdiction in infringement and revocation proceedings concerning unitary patents, and its decisions would be binding in the territories of the member states that have ratified the UPC Agreement. (UPC Agreement, arts. 32, 34; Regulation (EU) No 1257/2012, arts. 3, 5, recital 9.) Under the current system, separate infringement proceedings in national courts are costly and they cause legal uncertainty and differing court decisions from various countries.

Patent-office, Washington, D.C., examiners at work. sketched by Theo. R. Davis. 1869. Library of Congress Prints & Photographs Division. http://hdl.loc.gov/loc.pnp/cph.3c02673.

5. According to the UPC Agreement, how would the UPC operate?

The UPC would be a two-level court, with a Court of First Instance (UPC-CFI) and a Court of Appeal (UPC-CA). (UPC Agreement, arts. 6-7, 9-10.) The UPC-CFI would be a single court with a central division in Paris, branches in London and Munich, and several local and regional divisions spread out in the contracting member states. It is unclear how Brexit will affect the set-up of the UPC-CFI as discussed in more detail in question 7. The UPC would rely on the EPC as a source of law among other sources. (UPC Agreement, art. 24.) Like any national court of an EU member state, the UPC would apply and have to respect the primacy of EU law. Under article 267 of the Treaty on the Functioning of the European Union, if a question arises before the UPC concerning the interpretation, validity, or application of EU law, it would be necessary for the UPC to refer that question to the Court of Justice of the EU (CJEU) and request a preliminary ruling. (UPC Agreement, arts. 20-21.)

6. What legal challenges were brought against the UPP scheme?

Spain and Italy brought legal actions before the CJEU in 2011 seeking annulment of the enhanced cooperation mechanism of March 2011, opposing the language arrangements, and alleging lack of competence, misuse of powers, and distortion to the competition in the internal market. On April 16, 2013, the CJEU rejected all allegations and dismissed the actions.

Spain filed two more actions for the annulment of Regulation (EU) No 1257/2012, alleging several infringements of the EU Treaties; however, the CJEU again dismissed all complaints. Following these decisions, Italy joined the enhanced cooperation mechanism in September 2015, and ratified the UPC Agreement in February 2017.

7. What is the future of the UPC and unitary patents?

Currently, 25 states (including the United Kingdom) have signed the UPC Agreement. Poland participates in the enhanced cooperation mechanism, but decided to first observe the implementation of the system before signing. Spain and Croatia are not participating in the enhanced cooperation mechanism and have not signed the UPC Agreement.

The implications of Brexit on the future of the unitary patent system remain unclear. Although there has been no official announcement, there have been statements in the media suggesting the intention of the UK not to take part in the UPC and the unitary patent system. Since then, clarity has been sought from the UK parliament. Following these statements, in March 2020, the Preparatory Committee of the UPC, which is responsible for the implementation of the UPC Agreement, published a statement noting that “[o]nce Germany will be in a position to ratify the UPC Agreement … arrangements will be made to deal with the practical implications of the UK’s departure.”

Following the recent decision of the German Federal Constitutional Court, the German Minister of Justice and Consumer Protection Christine Lambrecht stated that the Federal Government intends to “carefully evaluate the decision of the Federal Constitutional Court and examine possibilities to remedy the identified lack of form during this legislative period.” The Preparatory Committee published a statement noting that “despite the fact that the judgement will result in further delay, the preparatory work will continue, while the judgement and the way forward is further analyzed.”

Categories: Research & Litigation

An Interview with Tori Stanek, Remote Metadata Intern

Mon, 05/18/2020 - 9:30am

Today marks the beginning of a new crop of summer interns at the Law Library. We in the Digital Resources Division have had the pleasure of working with 175 interns over the last six years, and this summer we welcome 45 more! Today’s interview is with Tori Stanek, who has worked as a remote metadata intern for the past eight months and will continue to volunteer as a mentor for some of the interns this summer.

Describe your background

I grew up and currently reside in Riverton, Wyoming. I am in the last few weeks of my graduate program and I currently divide my time between school, freelance writing for the local community college marketing department, and working as a public children’s librarian.

What is your academic/professional history?

In anticipation of pursuing a career in information science, I attempted to make my undergraduate knowledge base as broad as possible. I have two associate degrees; one in English and one in health science. My BA is in journalism and dance from the University of Montana in Missoula. I also worked as a legal assistant while applying for graduate school. I am now completing the final quarter of my Master of Library and Information Science (MLIS) program at the University of Washington and will graduate with the quarantined cohort of 2020. Throughout my MLIS career, I completed an internship with Howard University Law Library and multiple projects with the Law Library of Congress.

How would you describe your job to other people?

As an intern for the Law Library of Congress, I create and edit indices for newly digitized historical and legal materials. I append appropriate keywords to document records and derive my own search terms to ensure users can both collocate and differentiate among documents. A big part of my job is ensuring that there is consistency between indexing depth, vocabulary, and formatting. While I’ve worked with a number of document types, I was particularly excited to help provide access to a special volume of the United States Statutes at Large collection that contained Native American treaties. I am fortunate to live in the most diverse county in Wyoming, and I was able to consult with a local Native American studies professor to ensure that I constructed culturally accurate search terms.

I am now in the end stages of my LLC-sponsored capstone project. To complete this, I finalized the records for 10,000+ United States Treaties and International Agreements. I am creating blog posts with annotated charts and I am excited to see this information appear online for the first time. I think it is unbelievably cool that I get to work with information that is not available anywhere else.

Photo of Tori Stanek by Stacey Stanek in Captain Cook, Hawaii. “On one of my family trips, we were on a hunt for the largest shave ice and this was the winner.”

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

My incredible graduate cataloging course made me appreciate the ethical responsibilities of accurate document representation. I had enough of a background in law to know this was an area of interest for me, and I applied for an internship because it provided a way for me to promote equity at the access point of information. I firmly believe that one can make a difference through provision of legal information, and this internship was my jumping off point.

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

The vastness of the legal collection never ceases to amaze me. In my short time as an intern, I’ve indexed treaties ranging from foreign postal regulations (wherein one can occasionally ship bees and almost always ship leeches) to school lunch program regulations, and everything in between.

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

Even though Wyoming is my home base, I travel a lot, especially thanks to online classes. I was a remote worker before it became the norm! I spent last summer touring libraries across the Netherlands and have completed parts of my grad program from Colorado, Montana, California, Washington, Hawaii, and even Mexico. I also published a children’s book

Categories: Research & Litigation

History, Precedents and Rule of Law

Fri, 05/15/2020 - 10:35am

This is a guest post by Max Spitzer, the precedents editor in the Office of the Parliamentarian, House of Representatives. 

On May 31, 1789, James Madison, then a member of the House of Representatives during the First Congress, wrote a letter to Edmund Randolph, who would soon after be appointed the nation’s first Attorney General. In that letter, Madison discussed the current work of the House, in particular the relatively slow pace of deliberations. He wrote: “[I]n every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil…’’ [emphasis added]

The evil that Madison sought to avoid was inconsistency and arbitrariness in parliamentary practice. The new Congress was necessarily obligated to address many procedural questions as matters of first impression. Lacking established traditions, norms, or practices, the House of Representatives had to feel its way forward slowly, gradually developing a system of rules, procedures – and precedents. As Madison correctly surmised, time did provide a remedy. As questions of procedure arose and were resolved by the House, its parliamentary principles became fixed points of reference – precedents – that could be relied on in deciding new cases.

A contemporary of Madison’s, Thomas Jefferson, also recognized the value of precedents. In section 1.2 of his Manual of Parliamentary Practice (composed during his time as presiding officer of the Senate), Jefferson asserted that “[i]t is much more material that there should be a rule to go by than what the rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members’’ (emphasis added). This quote again highlights a key advantage of having an established body of precedents to rely on: consistency, predictability, and reliability. Such a body of work also fulfills Jefferson’s vision of a “parliamentary branch of the law’’ (Jefferson letter to George Wythe, February 28, 1800).

The precedents of the House stand on the same foundation as our common law legal tradition, exemplified by the Latin maxim stare decisis (or “let the decision stand’’). In any legislative body, the same procedural points occur time and again, and there is little point in re-litigating questions that have already been thoroughly discussed. By adhering to prior procedural rulings, the House is able to achieve the consistency and predictability that Madison and Jefferson thought vital to the legislative process.

Another contemporary of Madison and Jefferson, John Adams, defined a republic as “a government of laws, and not of men” (To the Inhabitants of of the Colony of Massachusetts Bay, March 6, 1775). This succinct formulation deftly captures the connection between precedents and the rule of law. By adhering to its settled precedents, the House situates the decision-making of its members within the context of a body of laws. The caprice and captiousness decried by Jefferson is thus replaced by the stability and certainty of impersonal, impartial law.

The House or Representatives has a long tradition of cataloging and publishing its parliamentary precedents. The first comprehensive attempt to compile the precedents of the House occurred in 1907, with the publication of the Hinds’ Precedents series. This five-volume work covered the entire span from the First Congress in which Madison served to the beginning of the 20th century. A subsequent series of three volumes – Cannon’s Precedents – was published in 1936, and catalogued precedents established during the 1907-1936 period. Deschler’s Precedents began in the mid-1970s, with the last of its 18 volumes completed in 2013.

The latest series of precedents, entitled simply “Precedents of the United States House of Representatives,’’ saw its first volume published in 2017. The second volume has just been published, and is now available online. These new volumes continue the venerable tradition of grounding the parliamentary practice of the House in settled law. It is a legacy that would have pleased Madison, Jefferson, and Adams, and it is one of which all Americans should be proud.

Categories: Research & Litigation

An Interview with Felicia Rovegno, Public Services Division Intern

Thu, 05/14/2020 - 8:30am

Today’s interview is with Felicia Rovegno, an intern in the Public Services Division of the Law Library of Congress.

Describe your background.

I grew up in Queens, New York. I visited Washington, D.C., when I was in eighth grade, and fell in love with it. I moved here to attend college at the George Washington University. I took a break from living in Washington, D.C., when I lived in Howard Beach (Queens) with my parents to attend law school at St. John’s University School of Law.

Felicia Rovegno

What is your academic/professional history?

I graduated in 2003 from the George Washington University with a B.S. in biology and a double minor in women’s studies and sociology. In 2006, I received a M.S. in genomics, also from the George Washington University. I graduated from St. John’s University School of Law with a J.D. in 2010, and became an attorney licensed to practice law in New York in 2011. I started working at the Research and Publications Unit of the Office of the Solicitor General, Department of Justice in 2013 as a paralegal specialist and then as a technical editor in 2016. At the Office of the Solicitor General, I cite-checked briefs being submitted before the Supreme Court of the United States on behalf of the United States and/or federal government agencies. I just recently began working as an associate counsel at the Office of the Law Revision Counsel, United States House of Representatives. I am also pursuing a master’s degree in library and information science from Catholic University of America. I am currently interning at the Law Library of Congress for the practicum class for that program.

How would you describe your job to other people?

I am interning at the Law Library of Congress with Ann Hemmens as my supervisor. Before the pandemic, I was predominantly answering online reference questions, while shadowing Ann and Emily Carr at the reference desk. During my time at the desk, I answered reference questions for public patrons face-to-face. Since the pandemic, I have been working exclusively online answering reference questions each week, as well as inputting data for the D.C. Circuit Court of Appeals Records and Briefs project, which is a project that will provide access to the contents of the microfilm collection. One of the most rewarding aspects of this internship has been receiving replies to my responses to online reference questions thanking me for the help that I provided, as well as seeing public patrons in person be happy with the help that I provided them.

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

First, this is a dream come true for my inner book-loving self. I always wanted to work in the largest library. Second, I wanted real-life legal reference work experience, and why not obtain it from the Law Library of of Congress. I am beyond grateful for this opportunity and learning experience.

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

I am amazed by how the majority of the collection that the Law Library of Congress has is not physically located in the Law Library Reading Room. During the first tour that I had of the Law Library of Congress, which was for a class assignment and given by Ann Hemmens, I walked around mesmerized by the collection that was physically located in the Law Library Reading Room, but I was more stumped by the fact that this was less than one percent of the collection. Through my internship, I have learned that most of the collection is located down in the stacks of the Law Library of Congress.

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

I love to bake, especially cupcakes and madeleines (French butter cakes). I started baking cupcakes in college when I was trying to duplicate Sunny Doodles (golden, cream filled cakes), which I no longer could eat due to my food allergies. Then, in law school, baking became a method of therapeutic stress relief and I would make cupcakes for different events put on by groups that I belonged to. I was introduced to madeleines through an assignment for French class. My mom obtained a recipe and both my mom and I have been making them ever since.

Categories: Research & Litigation

Henry Laurens, the Founding Father Who Was Imprisoned in the Tower of London

Wed, 05/13/2020 - 8:30am

In December of 2019, the Law Library’s Rare Book Curator Nathan Dorn and I visited the Library of Congress Special Collections Division to take photos of a first printing of the Articles of Confederation for a rare book video we created about the Articles. At the end of the document, we were intrigued to find a signature that read “By Order of Congress, Henry Laurens, President.” Just who was Henry Laurens?

The signature of Henry Laurens on the Articles of Confederation. Photograph by Robert Brammer

Laurens was one of the presidents of the Continental Congress, and he was president of the Congress at the time the Articles, which served as the first constitution of the United States, were adopted. There was no executive branch under the Articles, but the president of the Congress resembled an executive, albeit with very limited powers, presided over ceremonies and served to negotiate treaties on behalf of the United States.

In August of 1780, Laurens traveled to negotiate a treaty with and secure a loan from Holland, but his ship was intercepted at sea by a British frigate on September 3, 1780. Hoping to disguise his identity, Laurens and his secretary tossed their mail overboard, but one bag floated and was retrieved by a British sailor. With his identity revealed, Laurens was taken to London under suspicion of high treason, and imprisoned in the Tower of London on October 6, 1780. During his first day in the Tower, Laurens recalled: “The tune of Yankee doodle played I suppose in derision of me filled my mind with a sublime contempt & rather made me cheerful” (Proceedings of the Massachusetts Historical Society, 7). While he was imprisoned in the Tower, the British attempted to convince Laurens to support peace without American independence in exchange for more favorable treatment, which he refused. Laurens’ portrait was painted while he was imprisoned in the Tower. If you look in the background of the portrait, you will see a building representing the Tower of London.

Laurens was held in the Tower until shortly after the British surrender at Yorktown in October 1781, when he was exchanged for the release of Lord Cornwallis on December 31, 1781. Laurens later joined John Jay, John Adams, and Benjamin Franklin in Paris to begin negotiations on the treaty that would formally end the American Revolutionary War. Laurens’ plantation in South Carolina still exists and is now a monastery.

Source:

Proceedings of the Massachusetts Historical Society
Third Series, Vol. 77 (1965), pp. 3-14 (12 pages)

Categories: Research & Litigation

From the Serial Set: Congress and the Territories

Tue, 05/12/2020 - 8:06am

The following is a guest post by Bailey DeSimone, a library technician (metadata) in the Digital Resources Division of the Law Library of Congress. Her ongoing blog series, From the Serial Set, shares discoveries from the Law Library’s Serial Set Digitization Project.

The House Committee on Territories was formed in 1825 during the 1st Session of the 19th Congress. Created to “examine [the] legislative, civil, and criminal proceedings” to “secure the rights and privileges of residents and non-residents” of United States territories, the Committee operated until the 79th Congress in 1946. (House Journal. 19th Cong., 1st Sess., 5 December 1825, 46.) United States territories are created through organic acts, which permit the establishment of a separate government.

Acts of territorial legislatures during the period of westward expansion were handled by this Committee. Throughout many of the early volumes of the U.S. Congressional Serial Set, we can observe the particularities of the relationships between Congress, territories, and other communities inhabiting the present-day United States in the early 19th century.

Farmer, John, and V. Balch And S. Stiles. Map of the surveyed part of the territory of Michigan on a scale of 8 miles to an inch. [Detroit: Publisher Not Identified, 1826].

Boundary Lines

The Committee addressed the division of the Michigan Territory in 1828. Based on the “geographical character” of the country, the Legislative Council of the Michigan Territory proposed a split. The Committee on Territories then assessed the new boundary lines: “The…new territory will…be bounded on the east by [a line northwardly, down the middle of the Lake, and through the Straits]; on the north, by the northern boundary line of the United States; on the south, by the States of Illinois and Missouri; and, on the west, by the Missouri River.” (20th Cong., 1st Sess., H. Report No. 79, at 1 (1829) reprinted in Serial Set Vol. 177.)

In the years to follow, further boundary lines were drawn, creating what would later become territories, including Wisconsin and Iowa.

Jurisdiction over Territorial Legislatures

The Committee received memorials from legislative and judicial bodies of territorial governments. In 1839, the Territory of Florida submitted a memorial to request “appropriation to purchase a law library.” (25th Cong., 3d Sess., H. Report No. 159, at 1 (1839) reprinted in Serial Set Vol. 351.)

25th Cong., 3d Sess., H. Report No. 159, at 1 (1839) reprinted in Serial Set Vol. 351

This memorial resembled a bill granting funds for the establishment of a law library for the government of the Territory of Wisconsin, initially described by the Committee as “[a request] that may justly be regarded in future applications as possessing the character of precedent.” (25th Cong., 3d Sess., H. Report No. 159, at 2 (1839) reprinted in Serial Set Vol. 351.)

Territorial governments would further appeal to Congress in this way. In January of 1839, the Territory of Iowa submitted a memorial requesting that their judges receive pay equal to those of the Territory of Wisconsin. “In point of expense to the General Government,” attests the legislature, “[the Territory of Iowa] has done more to reimburse the Government than any other Territory.” (25th Cong., 3d Sess., H. Report No. 270, at 2 (1839) reprinted in Serial Set Vol. 351.)

Suffrage in the Territories

The question of extending voting rights to territories was raised in 1858. In the same year, Minnesota gained statehood and the passage of the Guano Act two years prior authorized the first territorial expansion beyond the North American continent.

At the time, only “citizens” were constitutionally permitted to exercise certain freedoms, such as the right to vote and hold political office, under U.S. law. Here, “citizens” and “people of the United States” are considered synonymous when considering constitutional law: state citizens were deemed to be the real “political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives.” (35th Cong., 1st Sess., H. Report No. 371, at 1-3 (1858) reprinted in Serial Set Vol. 966.) Territorial citizenship differed in the sense that the territories themselves were “[acquisitions of] the general government as the representative and trustee of the people of the United States.” In exercising their duty to create organic laws for territories, the Committee asserts that no other inhabitants of the United States aside from those living in the “political bod[ies] that form the sovereignty” – the states – should be extended the privilege of suffrage. (35th Cong., 1st Sess., H. Report No. 371, at 1 (1858) reprinted in Serial Set Vol. 966.)

The resulting bill proposed to restrict political sovereignty in territories until a “uniform” naturalization process took place. (35th Cong., 1st Sess., H. Report No. 371, at 1-3 (1858) reprinted in Serial Set Vol. 966.) Thus, inhabitants of territories would not obtain suffrage until the territory attained statehood. Although the ultimate conclusion once brought before the Committee on the Whole House on the State of the Union was “no resolution thereon,” the historical account of this decision-making process gives us an understanding of the broader debate surrounding suffrage during westward expansion.

35th Cong., 1st Sess., H. Report No. 371, at 1 (1858) reprinted in Serial Set Vol. 966

The United States still has territorial lands under its governance today, including Puerto Rico. The evolution of the map of America as we know it, outlined in these legislative practices, are crucial to understanding the legal framework of the United States and how many different geographical and cultural landscapes emerged.

Categories: Research & Litigation

Join Us on May 21 for a Foreign and Comparative Law Webinar on the Response of Religious Institutions and Organizations in Egypt, Saudi Arabia and Pakistan to Governmental Efforts to Combat the COVID-19 Outbreak

Mon, 05/11/2020 - 8:30am

This is a guest post by George Sadek, a foreign law specialist with the Global Legal Research Directorate of the Law Library of Congress.

Islamic religious institutions, Ulema councils, and religious organizations in various Muslim countries around the world are playing a significant and complex role in reaction to governmental responses to the COVID-19 outbreak. While it appears that, in most countries, Islamic institutions have fully and actively cooperated with authorities in implementing policies and measures of the state in the fight against the virus, there have been examples of serious opposition to some of these measures.

Please join Tariq Ahmad and George Sadek for the Law Library’s upcoming webinar, “Between Cooperation and Conflict: Islamic Religious Authority and Governmental Responses to COVID-19 in Saudi Arabia, Egypt, and Pakistan,” at 2:00 PM on Thursday, May 21, 2020. This webinar is the latest installment in the Law Library’s new series of webinars focused on foreign and comparative law.

This webinar will focus on the varying and complex role that Islamic law, official Islamic institutions and councils, and nongovernmental religious bodies are playing in reaction to governmental responses to COVID-19 in Saudi Arabia, Egypt, and Pakistan. The presenters will begin with a brief introduction of the place of Islamic law and official religious institutions in each country. They will then discuss the range of social distancing or lockdown measures that have been taken to ban or restrict religious gatherings and congregations. Lastly, they will discuss the various fatwas/declarations of official Dar-ul Iftas, Ulema councils, and prominent religious clerics in support of and/or in opposition to these measures, taking into account the diverse political and social contexts and challenges in the three countries.

To register for the webinar, please click here.

Categories: Research & Litigation

Restrictions on Movement due to the Coronavirus Pandemic Across England – Part II

Fri, 05/08/2020 - 9:00am

The following is part two of a two-part guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.

Offences and Penalties for Leaving Home Without a Reasonable Excuse

As noted in part I of this blog post, the regulations on movement in England (the Regulations) created the offense of a person leaving their home during the emergency period without a “reasonable excuse,” which is punishable with a fine. The police also have the discretion to issue Fixed Penalty Notices to individuals whom they reasonably believe have committed an offense under the regulations. Fixed Penalty Notices are fines of up to £60 (approximately US$74) for first time offenders and £120 (approximately US$150) for second time offenders. The Crown Prosecution Service (CPS), the independent body responsible for prosecuting criminal cases across England, has stated that it “expect[s] that enforcement of the regulation will be through the issuance of … directions (in respect of movement and gatherings).” The charging practice of the CPS notes, however, that any cases referred to it are,

…likely to have been a matter of last resort … Given that the offences in the regulations are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore likely be required in the public interest in the majority of cases.

Thus, it appears any cases referred to the CPS will likely meet the public interest test and be prosecuted.

Implementation of the Regulations

The address by Johnson and the Regulations were fairly broad in nature and, while there has generally been large scale compliance, there were a number of early reports that indicated confusion among both the public and the police over what circumstances people were permitted to leave their homes under the regulations, and what items were considered essential in stores.

After Johnson made his address there was also confusion over whether people could drive to locations in order to exercise, with hiking in countryside being a popular form of exercise across England. Some police forces were reported using drones to police areas that people were using to walk for exercise while maintaining social distancing requirements, and sending people who were driving to locations to walk back home and issuing Fixed Penalty Notices to them.

People have been stopped from purchasing items such as hot tubs, and a chief constable made a statement in a press conference that if people continued to travel for “non-essential purposes” his police force would set up road blocks to stop them. The public was also given the impression during this press conference that the chief constable would have his police officers check the contents of shopper’s carts to ensure only necessities were being purchased from stores. This position was ultimately backtracked after the Home Secretary responded that the comments were “not appropriate”, and the chief constable stated the comments were aimed at ensuring people were only making “necessary and essential journeys”.

The National Police Chief’s Council introduced guidelines, based on guidance produced by the CPS, to provide additional clarity over the Regulations. The guidelines acknowledge the confusion after the regulations entered into force:

Some public statements made soon after the adoption of the regulations suggested that members of the public could only leave their homes if “essential” to do so. However, this is not the test set out in the Regulations and there is no legal basis for a requirement in those terms to be imposed. The applicable threshold is that of ‘reasonable excuse’.

The guidelines provide that it is a reasonable excuse for a person to leave their home to:

  • Purchase basic food supplies, which may also include the purchase of luxury items and snacks alongside basic food supplies;
  • Purchase items for home maintenance and upkeep, but not for home improvements and renovations;
  • Drive to countryside to walk, as long as “far more time is spent walking than driving”;
  • To rest or eat lunch during a long walk. If the rest time occurs after a short walk and for a long period of time, the guidance states this “may mean that the person is not engaged in ‘exercise’ but in fact something else”;
  • Travel to work, even if the person is not an essential worker;
  • Take pets to the veterinarian for treatment;
  • Move to another home temporarily to cool off after an argument;
  • Provide support to vulnerable people.

Police in rural areas have expressed concern that allowing people to travel to their areas to exercise could “undo efforts to prevent the spread of coronavirus in rural areas.”

On April 27, 2020, the Prime Minister made a speech stating that the peak had been flattened and that the UK was close to the point where restrictions could start to be lifted. It has been is reported that Boris Johnson will make an announcement on May 9th that the economy will be restarted and the restrictions will be eased, but there has been no information on the specifics of how this will be achieved.

Categories: Research & Litigation

Israel Security Agency Surveillance to Trace COVID-19 Patients and Contacts Scrutinized

Thu, 05/07/2020 - 2:19pm

Israel appears to have had relative success in curtailing the spread of the novel coronavirus pandemic. With a population of over 9 million, as of May 7, 2020, since the outbreak of COVID-19 in Israel: 432,453 tests have been conducted, 16,346 patients have been diagnosed with COVID-19, 239 have died, and 10,737 have recovered. On May 7, 2020, 32 new patients were diagnosed with COVID-19.

Doctor in protective medical mask over flag of Israel (Photo by Flickr user Jernej Furman, taken April 8, 2020). Used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/.

To fight the pandemic, the Israeli government has imposed a variety of measures, including social distancing, home isolation and reporting requirements for passengers arriving in Israel from other countries, and use of cameras in COVID-19 hospital units. The government has started lifting a number of restrictions “in order to gradually restore the Israeli economy to a cautious routine in the shadow of the Corona.”

One particular measure utilized by the government has been controversial. The government considers tracing patients, and those who were in contact with them, as crucial to stop the spread. To do that, on March 17, 2020, the government published the Emergency Regulations (Authorization of the Israel Security Agency [ISA] to Assist the National Effort to Reduce the Spread of the Novel Coronavirus), 5780-2020. The emergency regulations were in effect for a period of 14 days, and then replaced by government decision No. 4916, issued on March 24, 2020, and subsequently replaced by government decision No. 4950, issued on March 31, 2020, extending surveillance authorities to April 30, 2020. The government expressed interest in further extending the ISA authorization, especially when social distancing and other restrictions are being lifted.

On April 16, 2020, Israel’s Supreme Court held a hearing on the validity of the ISA authority to conduct surveillance in the context of the pandemic. The hearing was broadcasted live on the Israeli Judicial Authority website. The Court issued its decision on April 26, 2000, unanimously holding that the authorization could not be based on a government decision. Instead, the government was required to anchor the authorization in legislation. Additionally, the Court, by two-to-one justices, determined that there must be a special procedure for the transfer by the Ministry of Health to the ISA of identifying information on journalists who contracted COVID-19. (HC 2109/20 Ben Meir v. Prime Minister.)

The Legal Basis and the Scope of ISA Authorization under Government Decision 4950

The decision was issued pursuant to section 7(b)(6) of the ISA Law, 5762-2002. This provision authorized the ISA to engage in activities other than those enumerated by the Law, that were determined by the government, with the approval of the Knesset (Israel’s parliament) Committee on the ISA, as necessary, to protect and promote essential national security interests. (ISA Law, 5762-2002, Sefer HaHukim (Book of Laws, official gazette) 5762 No. 1832 p. 179, as amended).

The decision authorized the ISA:

(a). … to receive, collect and process technological information to assist the Ministry of Health in conducting an examination regarding the period of 14 days prior to a patient’s diagnosis, for identifying location data and movement paths of a patient and for identification of persons who came into contact with him, to identify the source of the patient’s virus infection and who might be infected by him…

(b). [and to] … transmit necessary information details to the Ministry of Health …so that the Ministry of Health can give guidance to patients, people who have come into close contact with them and the general public. (Decision 4950 § 2).

The decision defines technological information as:

Telecommunication data of … identification, location and communication, excluding content of conversations within the meaning of the wiretapping law, 5739-1979, as approved by the Knesset Service [ISA] Committee.

It defines necessary information details as:

(1) For a patient: Location data and traffic routes in the period of 14 days before the day of diagnosis.

(2) For persons who have come into contact with a patient: a full name, identity card number, telephone number, date of birth, date, time and location of last exposure to the patient, … to the extent possible and necessary (Decision 4950 § 3).

Parties’ Arguments

The petitioners argued that the government did not have the power under the ISA Law to grant the ISA authorization in areas involving public health. As a body responsible for preventing security threats against the state, they argued, the ISA might only act in areas involving national defense. In the petitioners’ opinion, section 7(b)(6) of the ISA law should be interpreted narrowly to apply only to national security threats. (HC 2109/20, main opinion by Court President Justice Hayut, para. 9.)

The petitioners further alleged that the authorization for a massive surveillance of citizens by a state security agency violated the constitutional rights to privacy and dignity, and harmed the democratic system of checks and balances. According to one of the petitioners, the Organization of Journalists, surveillance of journalists under the ISA authorization would have a chilling effect on journalistic sources. (Id. para. 10-11.)

Rejecting the petitioners’ claims, the respondents argued that the ISA possessed the most effective means to engage in COVID-19 tracing for the purpose of stopping the spread of the virus. The respondents did not dispute that ISA surveillance might result in infringement of the right to privacy. The harm posed by not utilizing the ISA surveillance capabilities to the right to life, to public health, and to the Israeli economy, they argued, exceeded that inflicted on the right to privacy and to journalistic privilege. (Id. para. 12-13.)

Supreme Court Decision on the Legality of the ISA Surveillance Authorization during the Pandemic

1. Criterion for ISA Authorization

An examination of the legislative history of section 7(b)(6) of the ISA law, according to Justice Hayut, reflected its drafters’ intention to limit ISA activities to areas that directly involved national security. These included not only military or terrorism threats, but also those involving industrial espionage, international crime, as well as serious international offenses and matters in which a body such as ISA might have an advantage as compared with regular police. (Id. para. 19-20.)

Hayut held that the criterion for determining if there existed a national security threat for purpose of ISA authorization under section 7(b)(6) was whether there existed a “grave and immediate danger to citizens and residents of the state or to its norms of government.” This interpretation of the provision, she noted, was supported by its legislative history, as well as by “the emphasis – in Israel and worldwide on - prevention of uncontrolled expansion of the powers of preventive security bodies.” (Id. para. 20-22.)

According to Hayut, a grant of authorization did not require proof of existential threat as a condition for government authorization. There was no intention, however, to extend the authorization to “routine threats to public order with which the police and civil enforcement agencies are confronted daily.” Referring to the immediate nature of the threat, Hayut held that authorization could be granted only for a time when there was no practical possibility of developing alternative suitable means to address the danger. Therefore, the expansion of the ISA authorities in areas that were beyond the strict meaning of security matters could not be for an unlimited period. Rather, such expansion would be authorized only under conditions of immediacy and unavailability of alternative means for countering the grave danger. (Id. para. 23.)

2. Qualification of COVID-19 Pandemic as a Grave and Immediate Threat to National Security

Hayut recognized that at the initial issuance of ISA authorization, the outset of the pandemic outbreak constituted a grave and immediate threat to national security in its qualified meaning beyond the narrow interpretation of security threats. In her opinion, however, further extension of the authorization could not be based on additional government decisions, but would require legislation.

An extension of an arrangement which is of temporary nature and limited in duration, Hayut opined, required consideration of the legal foundation upon which it relies. In this case, the weight that should be given to the urgency of regulating the issue in the framework of a government decision diminishes over time. This is especially relevant because during the time that had passed since the initial issue of the authorization, the Knesset had been able to conduct “a meaningful hearing for anchoring the ISA authorization in an organized manner in primary legislation.” (Id. para. 29-30.)

In a representative democracy in which the sovereign is the people, she held, major substantive decisions that impact citizens’ lives must be adopted by the body that was elected by the people for that purpose. The need for a legislative process, Hayut noted, was also supported by the temporary nature of the interim government that adopted the decision, and the inability of “a few members of the Knesset ISA committee to offer an alternative to 120 elected members.” (Id. para. 31-32.)

Under these circumstances, Hayut held, to the extent that the ISA surveillance would be necessary to stop the pandemic beyond April 30, 2020, the government must act to anchor the basis for such involvement in primary legislation to enable the participation of Knesset members of all parties in this important issue. It would be appropriate for such legislation, she noted, to be temporary. Considering the need to address the pandemic, the Knesset could expedite, but not hasten, the legislative process, as long as it allowed for receipt of public comments and held appropriate hearings.

Hayut ordered that the ISA authorization could be extended beyond April 30, 2020, for an additional few weeks, to enable completion of the legislative process. Such extension would depend on putting into motion legislative procedures to enact relevant legislation by that day. (Id. para. 33-34.)

3. Special Arrangements for Journalists

Hayut held that the Ministry of Health should be provided with a list of holders of press passes. Passes are issued to journalists by the Government Press Office. A journalist who had been identified as infected with COVID-19 should be asked to consent to the transfer of his/her relevant information to the ISA. A journalist who refuses may, within 24 hours following diagnosis, request the issue of a judicial injunction against the transfer.

The journalist will, however, be required to undergo epidemiologist testing and to sign a declaration that he/she would personally inform any sources with whom the journalist came into contact 14 days prior to diagnosis. (Id. para. 44-45.)

Further Developments

On May 5, 2020, the Knesset Intelligence Subcommittee approved a three-week extension for the government to use the ISA surveillance assistance for fighting the COVID-19 pandemic. The extension was granted to enable advancement of the legislative process. We will be following legal developments and report on them as warranted either here on the blog or in the Global Legal Monitor.

Categories: Research & Litigation

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