The Online Resource for Massachusetts Poverty Law Advocates

In Custodia Legis

Subscribe to In Custodia Legis feed
Law and Order
Updated: 6 min 40 sec ago

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

Mon, 06/24/2019 - 9:30am

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

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

The Court Decisions

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

Can a Judge Be “Too Slow”?

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

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

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

A Never-Ending Story?

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

Categories: Research & Litigation

Greenland’s National Day, the Home Rule Act (1979), and the Act on Self-Government (2009)

Fri, 06/21/2019 - 9:00am

Today, June 21, 2019, is Greenland’s National Day, marking the longest day of the year (the summer solstice). June 21 is also the anniversary of the entry into force of Greenland’s Act on Self-Government (Lov om Grønlands Selvstyre (Lov nr. 473 af 12 juni 2009)). Although it us still formally a part of the Kingdom of Denmark, Greenland attained autonomy over a number of areas with the passing of this Act. The Act replaced the Home Rule Act, which entered into force 40 years ago this year.

Lov om Groenlands hjemmestyre [Act on Greenland’s Home Rule] (Lov nr. 577 af 29 November 1978). Photo by Kelly McKenna.

The Home Rule Act

On November 29, 1978, the Danish Parliament passed the Home Rule Act (Lov om Grønlands Hjemmestyre), but it did not to enter into force until additional legislation was adopted. On February 21, 1979, the Danish Queen Margrethe signed an act titled: Entry into force of Act on Greenlands Home Rule and Elections to the Greenlandic Parliament etc. (Ikraftsættelse af lov om Grønlands hjemmestyre og om valg til Grønlands landsting i 1979 m.v.). The Home Rule Act subsequently entered into force on May 1, 1979. The Home Rule Act was enacted as a response to the January 17, 1979, Greenlandic referendum, whereby 70.1 % of the voters (63% voter turn out) voted in favor of increased autonomy. Among other things, the Home Rule Act created the Greenlandic Parliament (Landsting in Danish and Inatsisartut in Greenlandic).

In addition to proclaiming that the Home Rule Act would enter into force on May 1, 1979, the 1979 legislation also required that an election to the Greenlandic Parliament be held in April of 1979, i.e., prior to the Home Rule Act entering into force. The election was held on April 4, 1979. Thereafter elections were to be held every four years. The most recent election to the Inatsisartut was in 2018. One of the first local laws passed by the Greenlandic Parliament was a Greenlandic income tax act.  The National Day of Greenland was established by the local government, and was celebrated for the first time on June 21, 1983. In 1985, a special Greenlandic flag was adopted. Since 2016, it must be flown by all government buildings throughout the Danish realm on June 21.

Lov om ikraftsaettelse af lov om Gronlands hjemmestyre og om valg til Gronlands landsting I 1979 m.v. [Act on the Entry into force of Greenland’s Home Rule Act and on Elections to the Greenlandic Parliament in 1979 etc.](lov nr. 56 af 21 februar 1979). Photo by Kelly McKenna.

The Act on Self-Government

The Home Rule Act was in force for thirty years, until a 2008 referendum when Greenlandic voters voted in favor of the adoption of an Act on Self-Government. This time the support for increased Greenlandic independence was even higher than in 1979, with 75% in favor (voter turnout was 71.96%).

The Act of Self-Government recognized Greenlanders as a people under international law (preamble), made Greenlandic the official language of Greenland (§ 20), entitled Greenland to representation at Danish diplomatic missions (although Greenland may be asked to pay for the expense) (§ 20), and granted Greenland power over its mineral resource activities (§ 7).

The Act also specifically states that the Greenlandic people will decide on Greenland’s independence and that an agreement on independence from Denmark requires a referendum in Greenland and approval from the Danish Parliament (§ 21). Foreign affairs remain the responsibility of the Danish Government (§ 11).

The Act includes two lists of areas of responsibility that will, over time, be transferred to Greenland.

Greenland’s relationship with the European Union

An interesting fact about Greenland is that it actually withdrew from the European Communities. When Denmark joined the European Communities in 1973, following a 1972 national referendum, Greenlanders were heavily opposed; the result from Greenland was 70% against versus 63% in favor for Denmark as a whole. As a result, Denmark joined in 1973, but without popular support among Greenlanders. At that time, Greenland had the same autonomy as a Danish county. After gaining home rule in 1979, Greenland held a public referendum in 1982 and decided (with 52% in favor) to leave the European Communities.

Reportedly, the Greenlandic Home Rule Minister for Social Affairs Moses Olsen declared:

We confirm our relations with Denmark – and with Europe – but we also realized that our full membership of the European Community as a ‘European Region’ is inadequate and unworkable along with our self-determination established through our Home Rule. Our climate norms, culture, ethnicity, social structure, economic and industrial pattern, infrastructure and basis for existence are so different from Europe that we can never equate with the European countries or regions. (Natalia Loukacheva, The Arctic Promise: Legal And Political Autonomy Of Greenland And Nunavut, 115 (2007).)

Greenland’s withdrawal was resolved by the creation of the Treaty Amending, With Regard to Greenland, the Treaties establishing the European Communities. Greenland was awarded Overseas Country and Territory (OCT) status for all areas except its fishing industry. The fisheries agreement between Greenland, Denmark, and what is now the European Union (EU) has changed over the years since the EU’s formal creation in 1993.  Greenland still maintains both fishing and cooperation agreements with the EU. Greenland, Denmark, and the EU renegotiate these agreements every six years.  The quotas on fisheries are renegotiated every year. In 2015, Greenland signed a joint declaration with the EU, and is also represented by a delegation to the EU.

The discovery of Greenland. 1875. Library of Congress Prints and Photographs Division https://lccn.loc.gov/2006683697

Resources related to Greenland

Legislation

As of 2011, Greenland publishes all of its legislation online in both Greenlandic and Danish.

Library of Congress Online Resources

Guide to Law Online for Greenland and Denmark

Global Legal Monitor, news from Greenland and Denmark

Trade Implications of Brexit: Lessons from Austria’s Accession and Greenland’s Withdrawal

Some Collection Holdings Related to Greenland

 

 

Categories: Research & Litigation

An Interview with Sophie Higgerson, Junior Fellow

Wed, 06/19/2019 - 9:43am

Today’s interview is with Sophie Higgerson. Sophie is a Junior Fellow in the Collection Services Division at the Law Library of Congress.

Sophie Higgerson / Photo by Kelly McKenna

Describe your background.

I grew in Vermont and Rhode Island, but went to middle and high school in New Hampshire. Since I moved to Virginia for college, I have found it is easiest just to tell people that I’m from New England. I have loved my time in Virginia and D.C. but there are some things I always miss about home – especially the weather!

What is your academic/professional history?

This past May, I graduated Phi Beta Kappa from William & Mary, where I majored in European Studies with extensive coursework in French and art history. My academic focus is on the architectural and urban history of Western Europe, and I wrote my senior honors thesis on the logic of preservation behind the UNESCO World Heritage Site in Strasbourg, France. I am passionate about historic preservation, material culture, and public engagement with history, and am taking some time to explore potential career fields before seeking an advanced degree. I will be interning at the Smithsonian American Art Museum for eight months after my time at the Library of Congress.

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

I am working on the collection of 44 boxes of 18th century French legal statutes that the Law Library acquired in 1939. I am documenting the key data points, such as titles, dates, and the public officials involved. The collection is a rich repository of decorative woodcuts and printer’s devices, which I am also documenting. So far, I have reviewed two of the boxes, the contents of which primarily deal with taxation and public service. I will be presenting some of my most interesting findings at Display Day, where all the Junior Fellows have a chance to present their work and research to the public. My presentation will probably have to do with private citizens (and sometimes whole towns!) running afoul of the law.

Why did you want to work at the Law Library?

In my time as an undergraduate, I had two internships in libraries and archives- one at the École Nationale Supérieure d’Architecture in Strasbourg and one at the Preservation Society of Newport County in Newport, Rhode Island. I knew that working in the Law Library would be a fantastic opportunity to apply my language skills and historical knowledge, but also a challenge. I have already learned so much, not only about cataloging but also about French history!

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

I was surprised to learn that the Law Library not only has many collections on foreign and international law, but also employs specialists in those various legal traditions.

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

I also speak German, but not as well as French, so luckily I don’t need it for this project!

Categories: Research & Litigation

Rare Book Video – A Treatise Used to Try Persons Accused of Witchcraft

Tue, 06/18/2019 - 10:35am

Our latest rare book video features the Malleus Maleficarum, a 15th century treatise used to try persons accused of witchcraft.

{mediaObjectId:'8643F5F841C50192E0538C93F1160192',playerSize:'mediumStandard'}
Categories: Research & Litigation

Congress.gov New, Tip and Top for June 2019

Mon, 06/17/2019 - 2:36pm

Earlier this month, Margaret shared the news that Congress.gov now has enhanced navigation for member profile pages.

With this month’s release, the display for errata associated with committee reports has been enhanced. The Congress.gov glossary defines errata as “lists of errors in congressional publications. The corrections are printed on sheets, or pages. The errata sheets are usually tipped into the original document.” When a user performs a search that includes a committee report for which errata has been issued, the list of results will display the errata as a link associated with the report. After the user arrives on the committee report detail page, the errata is available on a tab next to the text of the report.

A list of results displaying errata associated with a committee report on Congress.gov.

A committee report detail page displaying errata on a separate tab in Congress.gov.

Enhancements for June 2019

Enhancement – Committee Reports – Search Results

  • Committee Report search results display a link to errata for any report for which one has been issued.

Search Tip

Adrienne brings us the latest Congress.gov Search Tip:

Find details of upcoming committee meetings on the Congress.gov homepage. Learn more.

Most-Viewed Bills

Below are the most-viewed bills on Congress.gov for the week of June 9, 2019.

1. H.R.6 [116th] American Dream and Promise Act of 2019 2. H.R.1044 [116th] Fairness for High-Skilled Immigrants Act of 2019 3. H.R.5 [116th] Equality Act 4. H.R.2157 [116th] Additional Supplemental Appropriations for Disaster Relief Act, 2019 5. H.R.5428 [116th] Stand with UK against Russia Violations Act 6. H.R.38 [116th] Concealed Carry Reciprocity Act of 2019 7. S.386 [116th] Fairness for High-Skilled Immigrants Act of 2019 8. H.R.1994 [116th] Setting Every Community Up for Retirement Enhancement Act of 2019 9. H.R.1 [116th] For the People Act of 2019 10. H.R.2820 [116th] Dream Act of 2019

Please share any comments below or submit your feedback on Congress.gov.

Categories: Research & Litigation

Wheatland, the Home of President James Buchanan – Pic of the Week

Mon, 06/10/2019 - 1:05pm

Our picture of the week is Wheatland, the home of President James Buchanan. President Buchanan is not rated highly by historians due to his inability to prevent the Southern states from seceding from the Union, but he came to the office with impressive credentials, having served as a lawyer, Secretary of State, Minister to the United Kingdom and Russia, United States Senator, member of the United States House of Representatives, and member of the Pennsylvania House of Representatives from Lancaster County. But as the introductory film in Wheatland’s visitor’s center concluded, Buchanan had a much more limited view of the powers of the presidency than Americans have today. As such, he believed there was little he could do to prevent the Southern states from seceding. Buchanan resolved to maintain and reinforce federal forts in Southern states and wait for the Confederate states to make a move against them. That action took place with the firing on Fort Sumter after Abraham Lincoln had taken office. As Buchanan rode in a carriage with Abraham Lincoln to Lincoln’s inauguration, Buchanan is said to have remarked, “My dear sir, if you are as happy in entering the White House as I shall feel on returning to Wheatland, you are a happy man indeed.”

Wheatland, the home of President James Buchanan. Photo by Robert Brammer.

The tour guide pointed out several interesting artifacts that were owned by Buchanan, including some of his legal texts, a bottle of wine from his personal collection, a teak desk from India that he used in his office in the White House, and even the bed that he died in. When asked about Buchanan’s legacy, the tour guide acknowledged that while he may not be considered a great president, Buchanan’s influence can be felt elsewhere, in that he raised his niece, Harriet Lane, to become an independent, educated woman, and part of his legacy can be felt through her work to promote the availability of pediatric medicine and the arts.

The desk that President Buchanan used in the White House. Photo by Robert Brammer.

President Buchanan’s legal texts. Photo by Robert Brammer.

President Buchanan’s deathbed. Photo by Robert Brammer.

Categories: Research & Litigation

The American Battle Monuments Commission and the Commemoration of America’s D-Day Fallen

Thu, 06/06/2019 - 11:08am

French Coast dead ahead–helmeted Yankee soldiers crouch, tightly packed, behind bulwarks of a Coast Guard landing barge in the historic sweep across the English Channel to the shores of Normandy (U.S. Coats Guard, 1944). Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/cph.3b38734

Today is the 75th anniversary of the invasion of Normandy by Allied forces during World War II, usually referred to as D-Day.  The amphibious and airborne invasions secured a beachhead in northwestern France, which allowed for the rapid build up of forces needed to secure France’s liberation.

The invasion was part of an overall strategic plan, Operation Overlord, which had the goal of bringing American, British, Canadian, and allied ground forces into battle against the German army in western Europe.  Almost 11 months later, after much hard fighting and continued advancements on other fronts by Soviet and allied forces, the German armed forces surrendered unconditionally.

The opening and closing scenes of Saving Private Ryan were filmed in Normandy, specifically at the Normandy American Cemetery and Memorial in Colleville-sur-Mer, a community adjacent to Omaha Beach, one of the invasion beaches in the American sector.  Most historians agree that the fighting at Omaha Beach was the most intense on D-Day.  The cemetery is a component of the American Battle Monuments Commission (ABMC), a government agency which administers U.S. military cemeteries and memorials throughout the world.

The ABMC was established by law in 1923.  The bill establishing the Commission was introduced by Representative Stephen Porter of Pennsylvania, who was chairman of the House Committee on Foreign Affairs.  The legislation was endorsed by President Harding, who submitted letters of support from Secretary of War John W. Weeks, which explained the need for a unified approach in giving proper and respectful remembrance to the actions of all U.S. forces.  Bureau of the Budget Director Charles G. Dawes reiterated most of the points outlined by Weeks and also provided estimates on the amount of funds needed to create monuments for the sties and operate the agency for the first few years. The Commission was also tasked to consult with the United States Commission of Fine Arts for the approval of the designs and materials of proposed monuments.

Originally, sites were acquired in France and Belgium.  After World War II new sites were acquired across the world, including locations in the United States that memorialize American service personnel and merchant sailors who lost their lives in combat or are missing in action.  Some locations, such as the cemetery in Mexico City, were established before the creation of the Commission, but now fall under its jurisdiction.

 

Categories: Research & Litigation

Introducing Spanish Legal Documents (15th – 19th Centuries): Opinions and Judgments

Wed, 06/05/2019 - 4:44pm

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

Sentence of December 31, 1862 issued by the Second Criminal Chamber of the Royal Audiencia of the city of Barcelona, concerning criminal charges against Claudio Feliú Fontanills for impersonating a deceased person known as Claudio Fontanellas Sala.

The Law Library of Congress is proud to share the first of six subsections that comprise our Spanish Legal Documents collection (also known as the “Hispanic Legal Documents” collection, and often discussed alongside our “Miscellaneous Hispanic Documents” collections. For more information of the different formats and origins of these related collections, see our most recent post on this topic.

Purchased by the Library in 1941, the Spanish Legal Documents were primarily issued in individual sections, which varied from one to six folios. The majority of the documents were printed using handset type on handmade paper, which is in exceptionally good condition, and a small portion of the collection consists of manuscripts. The purchase order was described as “a collection of covenants of judicial contests between people, noble men and civil and religious institutions in Spain – Reales Cédulas –Pragmáticas Reales of the XVIIth and XVIIIth centuries.”

The legal documents remained in the Law Library for over 40 years after purchase before the funds were made available to organize, index, and microfilm them in 1983 and 1984. At that time, the documents were divided into six categories:
• Briefs
• Canon Law
• Notarial Instruments
Opinions & Judgments
• Laws & Statutes
• Miscellaneous

The microfilmed documents were digitized in 2017, and much of the post-digitization work has involved assigning specific metadata elements, such as language, region, and subject headings to almost 2,500 unique items.

While the remaining five subsections are still awaiting final cataloging updates, we wanted to begin sharing the collection as each part becomes available online, with the goal of displaying the full collection in the very near future.

Which brings us to our first published subsection: Opinions & Judgments. These are comprised of decisions rendered by the king’s courts, opinions by the attorneys of the king, as well as local courts’ judgments concerning a variety of cases and subjects. Most prominent are inheritance and estate, dowry, and titles of nobility cases. Other cases offer a little more to satisfy our taste for 18th century palace intrigue and scandal. European historians familiar with the Távora affair might recognize the case described in the manuscript below, in which the 8th Duke of Aveiro was stripped of his title, convicted, and executed for his role in an assassination attempt against King Joseph I of Portugal.

Resolution by the Royal Council sentencing José Mascareñas, Duke of Abeyro [Aveiro], and others for their conspiracy to assassinate the King of Portugal. [January 12, 1759].

Stay tuned for additional updates as we make more subsections available online, and in the meantime, please take a look at previous blog posts by the many interns, junior fellows, and staff members who have helped bring these unique and rare collections to life.

Categories: Research & Litigation

Constitution Day and Election Day in Denmark

Wed, 06/05/2019 - 4:11pm

On this day 170 years ago, the Danish King Frederik VII signed the Danish Constitution of 1849, creating a constitutional monarchy. Thus, today marks Grundlovsdagen (Constitution Day). Although a national and bank holiday, the day is not such a grand affair as Constitution Day of Norway.

This year may be different, though, as Denmark holds its national elections for the Danish Parliament today, June 5. It is the first time ever that Denmark will hold a general national election on its Constitution Day.

Danish Election (Bain News Service, publisher , between ca. 1915 and ca.1920). Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/ggbain.31570

When is the Danish Parliamentary Election?

Unlike neighbor countries Norway and Sweden, which both must hold elections in September every four years by constitutional mandate, Denmark has floating elections, meaning that it allows the government to announce the next election, provided it does so prior to the end of the current four-year term. (§ 32 Danish Constitution).

The Danish Constitution mandates that elections to the Folketinget (Danish Parliament) are conducted through general, direct, and secret elections. (§ 31 Constitution.) Members of Parliament serve for a four-year term. (§ 32 Constitution.)

How Long is the Campaign Period?

The campaign period starts after the sitting Prime Minister of Denmark announces a national election. The campaign period is thereby limited and only allows for campaigning within this set period. On May 7, 2019, Prime Minister Lars Løkke Rasmussen announced that the 2019 election would be held on June 5, 2019, meaning that the campaign period would be less than a month.

Who Can Stand for Election?

Anyone who is a Danish citizen and has a right to vote may stand for election, unless that person is convicted of certain crimes. (§ 4 Parliamentary Elections Act)

To stand for election, a person must be a member of a party. There are currently 13 political parties represented in the Danish Parliament. Parties that hold a seat in Parliament automatically have a right to be on the ballot in the next election. (§ 11 Parliamentary Elections Act.) In addition, parties that have received signatures from 1/175 of the valid votes cast (about 20,000 signatures) in the last election and that register with the Ministry for Economic Affairs and the Interior no less than 15 days before the election date are also eligible. (§ 12 Parliamentary Elections Act.)

Who Can Vote? 

Danish citizens aged 18 years and older who permanently reside in Denmark are eligible to vote. (§ 1 Parliamentary Elections Act.) Typically, Danes living abroad are not allowed to vote. Certain expats who are stationed abroad are eligible, however (§ 2 Parliamentary Elections Act.) Technically, the Danish Queen Margrethe meets all the legal requirements to vote, but the royal family does not vote.

When are the Results Posted?

The results must be posted as soon as possible.  The Ministry for Economic Affairs and the Interior posts it in the Statstidende (Danish government gazette).

Danish election returns, by Bain News Service, publisher. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/ggbain.31571

Voter Participation

Voter participation in the national parliamentary elections is generally high in Denmark (85.89% in 2015). However, participation is lower in Greenland (49% in 2015), and the Faroe Islands (66.2% in 2015). The figures for these two Danish territories are similar to the Danish voter participation in the EU elections: 66.1% in 2019 and 56.3% in 2014.

How Many Members are there in the Danish Parliament?

There are 179 members of Parliament, of which two represent Greenland and two represent the Faroe Islands.

When Does Parliament Convene?

Following the election, the parliament meets on the twelfth weekday (includes Saturdays) following the election day (this year, June 20) at 12pm, unless the Prime Minister has called for a meeting prior to that. (§ 35. Stk. 1. Danish Constitution.)

In non-election years, the Parliamentary year starts on the first Tuesday of October and ends the same Tuesday the following year. (§ 36. Stk. 1 Danish Constitution.) The Parliament convenes at 12 pm on the first day of the parliamentary year. (§ 36. Stk. 2.)

Prohibition on Political Campaigning on TV & Limits on Size of Political Posters

An interesting fact about Denmark, which Americans may find interesting, is the prohibition against political campaigning on TV. (§ 76 stk 3 Danish Radio and Television Act). In fact, all the Nordic countries have this prohibition.

In addition, Danish law sets limits on how large a political poster may be without first applying for a permit from the Danish-Transport authorities: 0.8 square meters. Such banners may only be placed on public roads four weeks prior to the election and must be removed eight days after the election. (§ 84 Public Roads Act.)

Law Library Resources on Elections Around the Globe:

Legal Reports on Elections and Campaign Financing

FALQs: Saudi Arabia Municipal Elections – Women Participate for the First Time

Israel’s 2013 Elections: The Making of a Coalition Government

Women in History: Voting Rights

Family Voting as a Solution to Low Fertility? Experiences from France and Germany

And many more

Resources on Denmark:

Guide to Law Online: Denmark

Guide to Law Online: Greenland (part of the Kingdom of Denmark)

60 Years of Lego Building Blocks and Danish Patent Law

Danish Law – Global Collection Highlights

The Making of a Legal Cinnamon Bun

And many more

Global Legal Monitor articles:

Denmark

Greenland

Faroe Islands

Categories: Research & Litigation

The Centennial Celebration of Woman’s Suffrage Begins

Tue, 06/04/2019 - 8:00am

The following is a guest post by Colleen Shogan, the Assistant Deputy Librarian of Collections and Services at the Library of Congress. She is also the Library’s designee on the Woman’s Suffrage Centennial Commission. The Library of Congress opens its newest exhibition, Shall Not Be Denied: Women Fight for the Vote, on Tuesday, June 4, 2019. This exhibition will tell the story of the long campaign for women’s suffrage–considered the largest reform movement in American history–which lasted more than seven decades.

 

WOMAN SUFFRAGE PICKET PARADE, by Harris & Ewing, photographer. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/hec.10340

One hundred years ago today, the nineteenth amendment to the United States Constitution, which removed legal barriers for women exercising the right to vote, received the required two-thirds vote in Congress to advance the proposed language to the state ratification stage. The political path to congressional passage was protracted and circuitous. The longest-lasting social movement in the United States, the woman’s suffrage movement spanned eight decades of American history. How did suffragists finally achieve a pivotal milestone on June 4, 1919?

Congress first considered the notion of female suffrage on January 23, 1866, when James Brooks (D-NY) asked why women had been excluded from the Fourteenth Amendment. After Brooks’ arguments failed to gain robust congressional support, the word “male” was inserted into the text of the amendment as a requirement for citizenship. Elizabeth Cady Stanton remarked that once the word “male” appeared in the Constitution, “it will take us a century at least to get it out.”

Although women’s voting rights were conferred earlier than Stanton’s prediction, her larger point held true. In 1872, Virginia Minor attempted to register to vote in the presidential election in St. Louis. When she was prevented from doing so, Minor and her husband sued the local registrar of voters. In Minor v. Happersett (1875), the Supreme Court unanimously rejected the claim that the Fourteenth Amendment prohibited the disenfranchisement of women as citizens of the United States. After the high court’s decision, the judicial avenue for securing women the right to vote disintegrated. The path ahead became clear: the suffrage movement needed to secure legislative support to change the legal conclusion that citizenship did not confer upon women the right to vote.

The two existing suffrage organizations adopted divergent strategies to achieve this goal. The American Woman Suffrage Association (AWSA) utilized a state-by-state approach while the National Woman Suffrage Association (NSWA) focused on changing federal law. Senator Aaron Sargent (R-CA) introduced a woman’s suffrage amendment in 1878, but at the time, there was little political momentum or support for the measure.

In 1890, AWSA and NSWA merged to create the National American Woman Suffrage Association (NAWSA). At this point in American history, women began to join volunteer associations at higher rates. Female community participation proved beneficial for the suffrage movement, as women transferred their energies and organizing skills from local civic groups to NAWSA.

Initially, the movement continued to focus on gaining suffrage at the state level, with some significant success, particularly in the American West. However, in 1914, Lucy Burns and Alice Paul formed the Congressional Union (CU) for Woman Suffrage, an organization wholly dedicated to securing a federal amendment. The Congressional Union eventually became the National Woman’s Party (NWP), which employed more militant tactics (such as organized mass marches) than NAWSA or predecessor American suffragist groups. In 1917, the NWP organized the first picket of the White House, seeking to draw President Woodrow Wilson into the suffrage fight. This led to arrests and eventually the imprisonment of suffragists in a nearby workhouse.

The same year, Jeannette Rankin (R-MT) became the first woman to serve in Congress. Representative John Raker (D-CA) proposed a new committee to consider the woman’s suffrage amendment. President Wilson endorsed the Raker proposal, which passed the House of Representatives later that year. After hearings in early 1918, the amendment came to the floor, with Congresswoman Rankin beginning the debate. The night before, Wilson announced support for the amendment. On January 10, 1918, the woman’s suffrage amendment received its first favorable vote in Congress, with the slimmest possible margin in the House, 274-136. However, the amendment failed to receive the required votes in the Senate during the sixty-fifth Congress, even after the President delivered a speech in the chamber on September 30, imploring the body to approve the amendment.

The following year, the House once again passed the amendment on May 21, 1919.  In the meantime, suffragists had focused their time and attention on securing Senate approval. Using an innovative lobbying method utilizing index cards, Maud Younger led an organized effort to change the hearts and minds of senators. After two days of debate, the upper chamber finally approved the amendment with no extra votes to spare (56-25) on June 4, 1919. Ratification by the states began only six days later, with Illinois, Michigan, and Wisconsin leading the way.

Categories: Research & Litigation

A Follow-up Interview with Elin Hofverberg, Foreign Law Specialist

Mon, 06/03/2019 - 4:37pm

Our interview series on In Custodia Legis started almost nine years ago with an interview of the then-Law Librarian of Congress, Roberta Shaffer.  We are now approaching 300 interviews.  Today’s interview with Elin marks a first: it is the first time we have completed a follow-up interview.  Elin was originally interviewed in 2011 when she was an intern at the Law Library of Congress.

Describe your current position.

I work as a foreign law specialist, meaning I conduct research on and monitor foreign and international law. My primary jurisdictions are the Nordic countries (Denmark, Finland, Iceland, Norway, and Sweden), which also naturally includes researching European Union (EU) law as Denmark, Sweden, and Finland are members of the EU. In addition to responding to requests from Congress and executive agencies, as well as research requests from the public, I also maintain and update the law collection for these jurisdictions.

Elin Hofverberg / Photo by Donna Sokol

What project are you most proud of that you have worked on at the Law Library of Congress?

The most rewarding part of my job is the joy of providing information that our patrons cannot find anywhere else; for example, locating an old law from a foreign jurisdiction, or writing an analysis of a recent foreign legal developments not covered by the US media. Work at the Law Library of Congress is always very varied. Our director, Peter Roudik, often says, “what’s in the news is on our desks.”

I have written reports on topics as diverse as cryptocurrencies, foreign aid, and the slaughter of animals. I have also written “lighter” pieces, such as my blog pieces on Lego and Danish Patent Law, and the Making of a Legal Cinnamon Bun.

Law is all around us.

What is the most interesting thing you have discovered from working with the Law Library’s print and electronic collections?

How fascinating its collections are. The legal collections for the Nordic countries are extensive. Every time I work with older material I feel as If I’ve stepped into a time machine. For example, the Law Library has an original Icelandic law book from 1637.

What is your favorite Law Library of Congress website and why?

Aside from this blog, I really enjoy reading my colleagues contributions to the Global Legal Monitor (GLM). As a lawyer specializing in international and comparative law, I find it interesting to learn how other countries deal with legal issues.  In 2013, I wrote a GLM article on a decision by the Norwegian Tax Authority with regard to cryptocurrencies that later resulted in a multinational cryptocurrency report. That report has since been updated numerous times.

When you learn how one country responds to a particular legal issue you become curious to find out how other countries have approached it. We at the Global Legal Research Directorate are in a unique position to be able to satisfy that curiosity.

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

When I first joined the Library, I was impressed by the Jefferson collection (especially his law collection). Today, I am impressed that we are such a living library. The Law Library alone has collected more than 2,954,200 volumes (the most in the world), and just in the 2018 fiscal year we prepared 1,665 legal research reports, special studies and memoranda sent across three branches of government, and answered 3,680 Ask-a Librarian requests.

The troves of knowledge contained within the Library’s walls is amazing to me.

What is your favorite legal novel and/or movie?

It’s hard to pick an absolute favorite, but one of the movies with a legal theme that I’ve seen numerous times is The Pelican Brief. With time, I have come to accept the discrepancies from the original book by John Grisham.

Another movie that I have seen more than once is 12 Angry Men, which is part of the National Film Registry. Although, I find that one is less about law and more about psychology.

I keep abreast of Nordic crime shows, such as The Bridge, just to know what my colleagues are talking about. My favorite Danish show is Borgen, which can be described as a Danish West Wing.

Categories: Research & Litigation

Dr. Raphael Lemkin, the Totally Unofficial Man

Fri, 05/31/2019 - 10:37am

Raphael Lemkin, a Polish Jewish international law jurist who lived and taught law in the United States at the end of his life, is famous for coining the word “genocide”. He also worked to make the act of genocide a crime in international law. As a child in rural Poland, Lemkin was fascinated by historical atrocities and was particularly struck by the story of Nero feeding Christians to the lions in Quo Vadis (Lemkin, Totally Unofficial, p. 1).  The story of the Armenian genocide also captivated Lemkin. In a sad twist of fate, the man who was so interested in the tragedies of other cultural groups experienced the horrible loss of his own family and people in the Holocaust.

After he finished his doctorate of law at Lwow University, he started writing law books, working as Warsaw’s deputy public prosecutor, and teaching law at university. One of the books he wrote during this time he coauthored with Duke University professor Malcolm McDermott— a contact who would later save his life (Lemkin, 21). Lemkin also wrote an influential article that argued for laws outlawing acts of barbarity and vandalism (Lemkin, 23).

Raphael Lemkin, 1900-1959, undated photo [American Jewish Historical Society, digital.cjh.org/R/?func=dbin-jump-full&object_id=373647]

At the start of World War II, Lemkin fled Poland when the German army invaded. He first fled to Stockholm, where he taught at the university. In Stockholm, he collected all the national official gazettes and Third Reich gazettes he could find to research the aims of Hitler and the Nazis, concluding that their policies of mass murder had the intention to wholly obliterate other peoples (Lemkin, 102). Lemkin’s conclusion from these studies was that “genocide is a premeditated crime with clearly defined goals, rather than just an aberration.

With the help of his colleague Dr. McDermott, Lemkin was able to take a teaching job at Duke University in 1941. He and his brother Elias were the only members of Lemkin’s family to escape; 49 members of his family died in the Holocaust.  During the early 1940s he wrote, traveled, taught, and lectured. Lemkin met John Vance, Law Librarian of Congress and began translating and analyzing Nazi decrees. Lemkin wrote:

I wanted to secure a regular flow of such decrees from occupied Europe and suggested in a letter to Vance that he might get them through book dealers in neutral countries– Portugal, Switzerland, or Sweden. In this way I hoped to build up in the Library of Congress a center of documentation that would be helpful in explaining the “war on the peoples” behind the current European “war on the armies” (Lemkin, 109).

This work was the basis for his later (and arguably most important) book, Axis Rule in Occupied Europe. In this text he introduced the term “genocide,” which is a combination of the Greek “genos” (race, tribe) and the Latin “-cide” (killing) (Lemkin, Axis, p. 79). The name was important; Churchill had called the acts of the Holocaust “the crime without a name.” Lemkin’s concept of genocide as an international crime, formulated at this time, provided one of the legal bases for the Nuremburg Trials.

However, at the Nuremburg Trials, the charge of genocide was thrown out. The Statute of the International Military Tribunal, which did not include a charge of genocide, bound the Nuremburg Tribunal. This defeat bolstered Lemkin’s resolve and although his health continued to decline, he tirelessly worked to establish genocide as an international crime. Throughout the late 1940s, Lemkin traveled throughout Europe and the States to talk to every diplomat, legal academic, politician and statesman he could about the legal concept of genocide, working to get allies to advocate for the Genocide Convention.

On December 9, 1948, the United Nations approved the Convention on the Prevention and Punishment of Genocide. Raphael Lemkin spent the rest of his life working to get nations to pass laws against genocide, teaching, and writing articles as well as his autobiography, though he died before he could complete it. The tentative title was “Totally Unofficial” from a 1957 New York Times editorial describing him as, “…that exceedingly patient and totally unofficial man, Prof. Raphael Lemkin” (Lemkin, xxv). His patience and single-minded pursuit of his goal was best explained in a speech he gave in Durham:

“If women, children, and old people would be murdered a hundred miles from here, wouldn’t you run to help? Then why do you stop this decision of your heart when the distance is five thousand miles instead of a hundred?” (Lemkin, 103).

Bibliography

Following is a list of resources available in the Law Library; a few of these are found in the Library’s general collection.

 

Categories: Research & Litigation

On This Day: Everglades National Park Established

Thu, 05/30/2019 - 1:15pm

Eighty-five years ago today, May 30, 1934, Congress established Everglades National Park.

Image of Statutes at Large pages establishing Everglades National Park, Congress 73, Session 2, Chapter 371, available at https://www.loc.gov/law/help/statutes-at-large/73rd-congress/session-2/c73s2ch371.pdf.

The park is one of the most unique national parks in the country. It is 1.5 million acres of what is commonly referred to as “swampland,” but actually contains at least eight different ecosystems, including freshwater sloughs, marl prairies, hardwood hammocks, pinelands, cypress, mangrove, coastal lowlands, and estuarine. These ecosystems and habitats support a collection of species not found elsewhere in the world.

Everglades National Park is designated as an International Biosephere Reserve, a Wetland of International Importance, a World Heritage Site, and is an area protected under the Cartagena Protocol. It has been affected greatly by population growth in South Florida and serves as a place of study and warning for issues such as climate change, threatened and endangered species, drainage and disturbed lands, and invasive and nonnative species of plants and animals.

Photo by National Park Service. The CFR regulation is available at https://gov.ecfr.io/cgi-bin/text-idx?SID=8941b37f859cc5c4a25a44f54f00da02&mc=true&node=se36.1.2_12&rgn=div8 .

The iconic king of the Everglades is, of course, the alligator, but many other plants and animals abound. A variety of snakes, mammals (including the severely endangered Florida panther), amphibians, reptiles, fish, and insects can be found year-round. Birding is also quite popular, especially during the winter months. My favorite iconic Florida birds are the roseate spoonbill, wood stork, and osprey. Interestingly, despite being associated with Florida and tourism, flamingos were considered nonnative and invasive for a long time. However, a recent study has questioned that designation and they may be native to Florida after all.

Interested in learning more about the establishment of national parks? The Law Library of Congress now has all public laws available by chapter from 1789-1950. You can browse by congress or use the search and facets function to narrow your desired law by subject. This search will allow you to see the 113 statutes tagged with “national parks.” We are still working towards completing this historical collection and adding more functionality in the future!

Categories: Research & Litigation

An Interview with Rose Tempowski, Scholar-in-Residence at the Law Library of Congress

Wed, 05/29/2019 - 10:53am

Law Library Scholar-in-Residence Rose Tempowski. Photo by Kelly McKenna.

Describe your background.

I’m from a small village in Derbyshire, a county in the East Midlands of England, and don’t live far from the house I grew up in. My parents are both from Birmingham, but moved to Derbyshire just before they had me. I lived in the northern city of Sheffield as an undergraduate, and in Phoenix, Arizona, in 2017. Other than that, I have not moved around much.  I’m lucky to live somewhere so well connected by main roads, but also with such easy access to the countryside.

 What is your academic/professional history?

I studied law for an undergraduate degree at the University of Sheffield, but upon graduation I pursued a career in teaching. I knew that I would return to the law at some point, so I decided to get admitted to the bar in New York whilst studying at the University of Derby for my Postgraduate Certificate in Primary Education with a specialization in science.  I taught in a variety of schools, including the school I attended myself as a child and a small village school in the Peaks which had years 2, 3 and 4 in the same classroom. In 2016, I reduced my teaching to part-time and enrolled at Nottingham Trent University to pursue an LLM in Human Rights and Justice.

Nottingham Law School has a very active pro bono community and I became heavily involved in this. I represented clients at social security tribunals, advised on housing and employment issues, investigated a case as part of the Miscarriages of Justice Project and ran classes at local high schools on the legal ramifications of cyberbullying and sexting. Through this community at NLS, I interacted with the Amicus charity, which sends volunteers to assist capital defense lawyers across the US. It was thanks to Amicus that I spent the majority of 2017 gaining valuable experience at a capital defense office in Arizona.

I am now at Birmingham City University where I am in the second year of my doctorate studies and also teach criminal law.

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

There is now an established body of science which acknowledges that human brains continue to develop and restructure throughout adolescence and into the third decade of life. The region responsible for decision-making develops last and is the area which differs the most with age. Therefore, questions can be asked about what this means for the criminal culpability of young people. My research aims to discover whether this brain science is playing any role in US state legislation which is regulating young people’s contact with the adult criminal justice system. Specifically, my research investigates two areas of law: bright-line age limits for juvenile court jurisdiction and state transfer or waiver laws which permit a juvenile to be tried in an adult court.

 Why did you want to work at the Law Library?

My Ph.D. supervisor, Dr. Sarah Cooper, and my colleague, Amelia Shooter, had both previously studied at the Law Library and spoken incredibly highly of their experiences. They impressed upon me how generous the librarians and staff at the Library are and how spending time here would make me a better researcher. Not only does the Library have an unprecedented catalog, but it is a unique legal environment with experts from around the globe. In addition to this, as an almost life-long student, I was really looking forward to studying in such a scholarly environment amongst like-minded individuals.

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

How available it is to the public! I’m really impressed by the accessibility of the Library. I love how any member of the public can phone up and speak to a law librarian and receive a detailed response to their inquiry.

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

Most people don’t realise that I rely pretty heavily on lip reading because I’m hearing impaired. This can make group settings, like networking events, really challenging and I think people are surprised that I seem so reserved in these environments when I’m usually so chatty. I also have a qualification in British Sign Language, but I don’t use it in day-to-day life.

Categories: Research & Litigation

Congress.gov New, Tip and Top for May 2019, Part 2

Tue, 05/28/2019 - 1:03pm

Earlier this month, Andrew shared the update to our committee schedule page, which launched in January 2019.

With this month’s second release, we have enhanced the navigation of member profile pages.  When viewing a bill or resolution on a member profile page, you can use the navigation arrows to move from the next or previous item in the list without having to return to the profile page.

Previous and next navigation buttons added to Member Profile pages

New Enhancements for May 2019, Part 2

Please find the full list of enhancements below.

Enhancement – Member Profile Pages – Results Navigation

  • When viewing a bill or other item listed on a member profile page, you can use the navigation arrows to move to the next or previous item in the list without needing to return to the profile page.

Enhancement – Committee Reports – Errata Display

  • Committee Report errata text displays as a tab on the committee report detail page.

Search Tip

The Congress.gov Search Tip for this release is a reminder of how to edit highlighting in Search Results:

How to Remove Highlighting from a Search Result

When viewing search results on Congress.gov, highlighted search terms can be very helpful in understanding why a particular item was retrieved.  But what if you need a clean copy without the  highlighting?  Simply edit the URL to remove the search portion and the highlighting will be gone. Look for ?q and delete it along with all characters that follow.

Most-Viewed Bills

Below are the most-viewed bills on Congress.gov for the week of May 18, 2019.

1. H.R.5 [116th] Equality Act 2. H.R.1044 [116th] Fairness for High-Skilled Immigrants Act of 2019 3. H.R.2527 [116th] Vaccinate All Children Act of 2019 4. S.386 [116th] Fairness for High-Skilled Immigrants Act of 2019 5. H.Res.109 [116th] Recognizing the duty of the Federal Government to create a Green New Deal. 6. H.R.987 [116th] MORE Health Education Act 7. H.R.5428 [115th] Stand with UK against Russia Violations Act 8. H.R.299 [116th] Blue Water Navy Vietnam Veterans Act of 2019 9. H.R.1 [116th] For the People Act of 2019 10. S.447 [115th] Justice for Uncompensated Survivors Today (JUST) Act of 2017

Please share any comments below or submit your feedback on Congress.gov.

Categories: Research & Litigation

Embassy of Bulgaria Donates Commemorative Reprints of Constitutions — Pic of the Week

Fri, 05/24/2019 - 1:54pm

 

On May 21, 2019, Ambassador Extraordinary and Plenipotentiary of the Republic of Bulgaria to the United States of America Tihomir Stoytchev, presented two copies of the commemorative reprint of Bulgaria’s Tarnovo Constitution to the Library of Congress. Law Librarian of Congress Jane Sánchez (center) and Principal Deputy Librarian of Congress Mark Sweeney (left) accepted the donations on behalf of the Library. Photo by Donna Sokol.

On Tuesday, May 21, Ambassador Extraordinary and Plenipotentiary of the Republic of Bulgaria to the United States of America Tihomir Stoytchev, presented two copies of the commemorative reprint of Bulgaria’s Tarnovo Constitution to the Library of Congress.

The commemorative reprints of the 1879 Tarnovo Constitution (left) and the 1911 Constitution of the Kingdom of Bulgaria. Photo by Donna Sokol.

Adopted on April 16, 1879, the Tarnovo Constitution remained fundamental law of Bulgaria until 1947. Ambassador Stoytchev also donated commemorative copies of the 1911 Constitution of the Kingdom of Bulgaria, which amended the Tarnovo Constitution to reflect the new name of the country. One of the donated pairs of constitutions will become part of the Law Library’s collection, and the other pair will go to the European Division. Law Librarian of Congress Jane Sánchez and Principal Deputy Librarian of Congress Mark Sweeney accepted the donations on behalf of the Library.

Categories: Research & Litigation

The Homestead Act of 1862

Mon, 05/20/2019 - 12:31pm

House of homesteader, Alaska. (Ca. 1916), Frank and Frances Carpenter Collections, Library of Congress Prints and Photographs Division. https://www.loc.gov/item/99614891/

Today marks the 157th anniversary of the Homestead Act becoming law.  For a number of years before the Civil War, there had been interest in allocating public lands in the trans-Mississippi west to individual settlers, but for a variety of reasons, including arguments over the status of slavery in the territories and concerns by Northern business interests that making cheap public lands available would lead to a shortage in labor, Congress had deadlocked over proposed legislation. In 1860, towards the end of the 36th Congress, both the House and the Senate finally agreed on legislation, only to have it vetoed by President Buchanan.

The Republican Party Platform of 1860 included a demand for

…the passage by Congress of the complete and satisfactory homestead measure which has already passed the House.

In the 37th Congress, after the departure of most of the representatives and senators from the seceding states, it became much easier for the House and the Senate to agree on language.  And with Abraham Lincoln, a Westerner, as president, approval was assured.

The bill was originally introduced on July 8, 1861, by Representative Cyrus Aldrich of Minnesota in the Special Session of the 37th Congress that met from July 4 to August 6, 1861. This bill was not considered, but when Congress met again in December 1861, Representative John Potter of Wisconsin, as chairman of the Committee on Public Lands, introduced H.R. 125.  This bill was passed by the House on February 28, 1862.  The Senate took up the bill in late April of that year and passed an amended version on May 6, 1862.  A House-Senate conference committee worked out the differences between the two versions, and the bill was approved by both chambers on May 15, 1862.  Over the next 100 years, the idea of the law would be incorporated in subsequent legislation that would include timber lands, lands that required dry farming techniques, and range lands.

Land became available under the act on January 1, 1863, with Daniel Freeman filing one of the first claims on that day. By 1900, 80 million acres of land would be patented by claimants though the act.  Before the act expired, over 270 million acres would be granted, although not all of this was granted to individuals.  The law was repealed for most of the country by section 702 of the Federal Land Policy and Management Act of 1976, but a ten year extension was retained for Alaska.

To perfect a claim, a settler had to farm a percentage of the acreage within five years of entry.  The settler also had to build a dwelling and live on the claim for a certain period of time.  Life for homesteaders was often very challenging, especially on the high plains where scarce water and wood made it difficult to grow crops and build a dwelling.

 

Categories: Research & Litigation

Happy World Whisky Day!

Fri, 05/17/2019 - 10:00am

Tomorrow, May 18, 2019, is World Whisky Day, a day that “celebrates all types of whisky/whiskey and encourages everyone to enjoy whisky responsibly.” As a law blog, there is no better way to celebrate such a day than with a post on a whisky court case! On June 7, 2018, the European Court of Justice (ECJ) had to decide a case between the Scotch Whisky Association and the German whisky producer Michael Klotz, who markets a whisky under the designation “Glen Buchenbach.” The case was submitted to the ECJ by the Regional Court of Hamburg, Germany in accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU) (request for a preliminary ruling). The Scotch Whisky Association sought an order that Mr. Klotz cease marketing his whisky under the designation “Glen Buchenbach” on the ground that use of that designation infringes European Union (EU) law which protects certain geographical indications, including “Scotch Whisky.” The ECJ held that the national court must determine whether a consumer thinks directly of the protected geographical indication ”Scotch Whisky” when he sees a comparable product bearing the designation “Glen.” On February 7, 2019, the Regional Court of Hamburg ruled in favor of the Scotch Whisky Association and held that using the designation “Glen” is misleading consumers as to the true origin of the whisky in question and therefore prohibited under EU law. The German distillery has appealed the case to the Higher Regional Court of Hamburg. The case is still pending.

Bottles and barrel of confiscated whiskey. Between 1921 and 1932. Library of Congress Prints and Photographs Division. http://hdl.loc.gov/loc.pnp/cph.3b42139.

Applicable Law

EU Regulation No. 110/2008 sets rules regarding the definition, description, presentation, and labeling of spirit drinks, and for the protection of geographical indications of spirit drinks. (EU Regulation No. 110/2008, art. 1.) Spirit drinks are generally defined as alcoholic beverages intended for human consumption with a minimum alcoholic strength of 15%. They are produced either directly by distillation, by maceration, or by the addition of flavorings, or by mixing a spirit drink with another drink, ethyl alcohol of agricultural origin, or certain distillates. (Id. art. 2.) A geographical indication identifies such a drink as “originating in the territory of a country, or a region, or locality in that territory where a given quality, reputation, or other characteristic […] is attributable to its geographical origin.” (Id. art. 15.) Geographical indications are registered in Annex III of the EU Regulation. One of the registered geographical indications is Scotch Whisky from Scotland.

Court Cases

The defendant Michael Klotz markets a whisky under the designation “Glen Buchenbach”, which is produced in Berglen in the Buchenbach valley in Swabia. The label on the bottles reads: “Waldhornbrennerei [Waldhorn distillery], Glen Buchenbach, Swabian Single Malt Whisky, Deutsches Erzeugnis [German product], Hergestellt in den Berglen [produced in the Berglen].” (ECJ, supra, paras. 9 & 10.) According to the website of the distillery, they chose the name “Glen Buchenbach,” because the Gaelic term “glen” means “valley” and Berglen is located in the Buchenbach valley.

The Scotch Whisky Association alleges that using the term “Glen” for the German whisky infringes the registered geographical indication “Scotch Whisky” and misleads the consumer as to the origin of the whisky despite the clarification on the label. It contends that the EU Regulation protects a geographical indication also against any reference that suggests the geographical origin of that indication. In its view, the term “Glen” evokes an association with Scotland and Scotch Whisky. (Id. paras. 11 & 12.) The Regional Court of Hamburg stated that, according to the jurisprudence of the ECJ, it is not sufficient that the disputed element evokes “some kind of association with the protected geographical indication or the geographical area relating thereto” but the association has to be direct. It held that this is not the case here, because the terms “Scotch Whisky” and “Glen” are not similar and in particular are not synonyms. (Regional Court of Hamburg, supra, para. 48.) However, the Court held that the name is nonetheless misleading, because the average European consumer will think it is from Scotland as the majority of whiskys with Glen in their name are from Scotland. (Id. at 51; EU Regulation No. 110/2008, art. 16(c).) In addition, the Court reiterated that the ECJ explicitly stated that the context surrounding the disputed element, or the fact that that element is accompanied by an indication of the true origin of the product concerned, is irrelevant for the determination. (Regional Court of Hamburg, supra, para. 51.)

As mentioned, the German distillery appealed the case. It argues that the Court should have taken into account that only one percent of surveyed consumers actually made a direct association between the term Glen and Scotch Whisky. It remains to be seen what the Higher Regional Court will decide. Stay tuned for updates on the case here on the blog or in our Global Legal Monitor.

Prost!

Categories: Research & Litigation

A Fish, a Baseball, a Song

Thu, 05/16/2019 - 1:21pm

Casey Stengel, full-length portrait, wearing sunglasses, while playing outfield for the Brooklyn Dodgers (ca. 1915). George Grantham Bain Collection, Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ppmsca.18466

The end of the baseball reserve clause came to major league baseball players as an early Christmas gift on December 23, 1975, when arbitrator Peter Seitz ruled that two players, Andy Messersmith and Dave McNally, were eligible to negotiate contracts with any team.  Prior to this time, major league players were bound under the reserve clause, a provision of a player’s contract which provided that the team that he signed with had first claim to his services for the term of the contract.  Such control was usually extended in subsequent years of the player’s career.   The signing team also controlled any trades that might involve the player.  A team could release a player from his contract, which would then make him free to contract with any other team that might be interested in having him play.   The reserve clause was not completely one-sided; a player could break it by refusing to sign and then not signing with another team for a year, after which he would be free to sign with a new team.  Usually this meant that the individual would not play, and as most players were dependent upon their team salaries this was an option that few could exercise.

There had been previous attempts to break the reserve clause system. The most famous being the organization of the Federal League, an eight team league, which was in business from 1913 to 1915.  The Federal League did not use the reserve clause in its contracts so salaries were considerably higher than what a player could earn in the “major leagues.”

Federal League Officials (Bain News Service, 1914).  Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ggbain.17672.

The Federal League went out of business in 1916, but in an attempt to collect damages as a result of harm suffered by the National League’s noncompetitive practices, it sued under the provisions of the Sherman Anti-Trust Act. The case ultimately ended up at the US Supreme Court in 1922. In the court’s decision, Federal Baseball Club of Baltimore v. National League, Justice Holmes ruled that major league baseball was not engaged in interstate commerce, and thus not subject to the provisions of the Sherman Act.

Although the reserve clause helped to hold down the salaries of players, some players were rewarded for outstanding performance by incentive provisions in their annual contracts.  The 1921 contract for Babe Ruth, an admittedly exceptional player, contained a clause that paid him fifty dollars for each home run hit during the regular season.

After 1922, the issue of baseball’s anti-trust exemption would be raised from time to time, including a famous hearing in 1958 when Casey Stengel verbally tied the Senate Subcommittee on Anti-trust and Monopolies in knots. However, the reserve clause issue would not finally be resolved until fifty years after the decision in Federal Baseball Club.  After the 1969 season, the St. Louis Cardinals traded Curt Flood and three other players to the Philadelphia Phillies.  Flood had been in the major leagues for 14 years and had just recently won his seventh golden glove award for outstanding defensive play, but the management of the Cardinals, after a disappointing season, wished to reorganize.  Flood did not want to go to Philadelphia since he had established roots in St. Louis and he felt he would not be welcomed at the new club.  He also felt that after 14 years of play he should not be traded without his consent.  When he was not able to get any satisfaction from major league baseball he decided to hire a lawyer and sue.  Flood lost his case at both the trial and appellate levels.  On appeal at the Supreme Court he was represented by former Associate Justice Arthur Goldberg, who was arguing before the court for the first time since his resignation from the bench in 1965.  Justice Blackman, in the decision for the court, upheld the lower courts’ decisions and reaffirmed the validity of the rule of Federal Baseball Club.

Flood would sit out of baseball for the remainder of the 1970 season to return briefly in 1971 as a member of the Washington Senators.  His legacy, the year after his death, would be honored by Congress when in 1998 it passed, and President Clinton signed, the Curt Flood Act, which established that major league baseball was subject to the anti-trust laws.

So how did we get to Messersmith and McNally breaking the reserve clause just three years after the courts had ruled against Flood?  Due to contract disputes that arose during spring training in 1975, Andy Messersmith played the year without a contract.  Dave McNally also started and finished the season without a contract.  Both players then sought arbitration to become free agents.  Seitzer’s decision granted this status.  Messersmith would sign with the Atlanta Braves where he would play for two seasons before leaving for the New York Yankees in 1978.  He retired in 1979 after returning to the Dodgers.  McNally retired without playing a single game as a free agent.

Meanwhile, in 1974, Jim “Catfish” Hunter signed a two year contract with the Oakland Athletics that stipulated that the team would allocate a portion of his salary to buy an annuity which would pay Hunter in installments at a later date.  The management of the Athletics defaulted on the contract when they neglected to purchase the annuity.  Hunter exercised the right in his contract to terminate his contract.  Prior attempts by players to exercise this standard clause had failed, but in this instance the arbitrator upheld Hunter’s position and he was declared a free agent.  In early 1975, Hunter signed with the New York Yankees where, beginning in 1976, he would help the team win three straight American League pennants and two World Series championships.  Hunter’s new found freedom, and his pitching skills, inspired Bob Dylan to write “Catfish,” a ballad which was later recorded by Joe Cocker.  Full free agency began before the start of the 1977 season when stars such as Reggie Jackson and Mike Schmidt were signed to multi-year multi-million dollar contracts.

For more information about baseball in America visit the Library’s exhibit, Baseball Americana.

 

Categories: Research & Litigation

On This Day: Swedish Supreme Court Established 230 Years Ago

Wed, 05/15/2019 - 2:43pm

The following is a guest post by Elin Hofverberg, a foreign law specialist at the Law Library of Congress. Elin is a prolific blogger and has contributed numerous posts for In Custodia Legis on a variety of legal topics, including 115 Years of Legal Education in IcelandRaoul Wallenberg – Swedish-American Collaboration in Protection of Hungarian Jews On the Shelf – Finnish Forest and Forestry LawsSwedish Law – Global Legal Collection HighlightsFALQs: The Swedish Budget Process60 Years of Lego Building Blocks and Danish Patent Law, Alfred Nobel’s Will: A Legal Document that Might Have Changed the World and a Man’s LegacyThe Making of a Legal Cinnamon Bun, and many more.

Two hundred thirty years ago today, on May 15, 1789, the Swedish Supreme Court was created by a royal regulation of May 15 1789 (Kongl. Maj:ts Rådige Förordnande för Des Högste Domstol eller Justitiae Revision af den 15 maj 1789).

Kongl. Maj:ts Rådige Förordnande för Des Högste Domstol eller Justitiæ Revision af den 15 maj 1789 [Royal Regulation on Supreme Court and Justice Revision of May 15, 1789], available in Kongl. Placater Resolutioner Etc. [Photo by Elin Hofverberg]

The Swedish king, Gustav III (known as the Masquerade King), abolished the Council of the Realm (Riksråd) and created a Supreme Court which was to consist of twelve men appointed by the king, half from the nobility (frälse) and half non-nobility (ofrälse). Only eight of the members could preside at one time, and the court needed to be composed of half nobility and half commoners at all times.

Gustavus III, King of Sweden (Published by W. Bent, London, July 13, 1787) [Library of Congress Prints and Photographs Division]

The first meeting of the Swedish Supreme Court took place on May 19, 1789.

At the time of its establishment, the role of the Supreme Court was:

  • to review legislative proposals;
  • to review cases; and
  • any other function previously performed as justitierevision (justice revision) by the Council of the Realm.

Over the years, the laws on the Supreme Court have changed, as well as the composition of the court. The following are a few notable changes:

  • Establishment of a Separate Law Council

In 1909, the Swedish Law Council (Lagrådet) was established through an amendment Swedish Constitution (Regeringsform). The Law Council was tasked with performing the legislative review functions that the Supreme Court had previously performed. The reason for this change was that the Supreme Court had been overwhelmed with legislative review questions from the Parliament, which took precious time away from adjudicating cases. Today, the Law Council is regulated by the Act on the Law Council (Lag om Lagrådet (SFS 2003:333)).

  • Establishment of a Supreme Administrative Court

Through the same amendment to the Constitution in 1909, a Supreme Administrative Court (Regeringsrätt until January 1, 2011, now Högsta förvaltningsdomstolen) was established to decide issues involving the State departments (i.e. decisions by government agencies).

Members of the Supreme Administrative Court needed to have worked as civil servants and, through their work, gained “insight, experience, and honesty” (17 § 2 st. Regeringsformen, as amended 1909, translation by author). The requirements were different to those for the members of the Supreme Court, who had to be “men with knowledge of the law” (17 § 1 st. Regeringsformen, as amended 1909, translation by author). In addition to possessing these characteristics, two-thirds of the members of the Supreme Administrative Court also needed to be eligible for positions as judges, as prescribed in law.

  • Abolition of the Nobility Requirement

According to legislation enacted in the mid-1800s, half of the members of the Swedish Supreme Court no longer needed to be members of the nobility as of the mid-1800s.

  • First Female Supreme Court Justice

The first female Supreme Court Justice, Ingrid Gärde Widemar, was appointed in 1968. Her biography at the time of appointment is available in SvJT 1968 (in Swedish). At the time of her appointment, she was a member of the Swedish Parliament (Second Chamber) and a lawyer.  One of her books is also available in the Library of Congress collections. Today, the Swedish Supreme Court is made up of 16 Justices (Justitieråd), of which 14 sit on the bench and two serve on the Law Council. Out of the 16 Justices, four are women.

Where to Find Supreme Court Decisions?

Supreme Court decisions are published on the Supreme Court website and in Nytt Juridiskt Arkiv Avd. 1 (the Official Supreme Court Reporter).  Swedish legal precedent can also be searched here.

Categories: Research & Litigation

Pages


Limit Offer