This past semester, I've been interning in the New Hanover County District Attorney's office in downtown Wilmington, NC. This is a series of blog posts about the whole process and what I experienced during my time there. This is Part 1.
I first found out about the opportunity through my school advisor. After discussing my intention to go to law school after my undergraduate years, he suggested I apply to intern in the DA's office. The idea immediately appealed to me and I eventually submitted my first application that fall of my freshman year. I got the call back, but it turned out that me not having a car was going to be too much of an issue. The next semester, I applied again and this time could assure the intern coordinator that I'd have a car. I was invited to interview with the coordinator and so I drove out to the courthouse for the first time (and really, this was also my first time in downtown Wilmington).
The interview had two tiers, one being a fifteen minute exercise where I was given a real case file and told to fill out all of the blanks on the folder it came with by gleaning information from the many files contained therein. Upon sitting down to this task, I was extremely excited to actually be sifting through files from a real case. The instructions asked me to identify various documents, including the warrant, the notice of appearance, the discovery disclosure sheet, the disposition sheet, etc. I had to put these sheets in a prescribed order and then set the folder aside. Next I had to type out a business letter pretending to tell a victim when to be in court.
After finishing (it was a good thing that I had shown up early because it took me about 15 minutes longer than it should have to complete everything), I was handed off to Christine and Christa, a victim/witness legal assistant and assistant district attorney, respectively, to begin the second tier of the process – the two-on-one interview. Christine greeted me in the office lounge and led me to a small conference room in the domestic violence office where Christa sat waiting. After salutations were strewn about we all sat down, they at one end of the shiny wooden table, and I at the other. The interview began with questions mostly pertaining to my past employments and schooling, and then moved to what I hoped to get out of the experience and other inquiries into my intentions for the internship. After the slew of questions ceased, I was thanked for my time and escorted to the elevators.
It was a nerve-racking ride down, with a new question popping into my head with every slight "beep" the elevator emitted when passing another floor.
Did I ask them the right questions? "Beep."
Did I fill out the folder correctly? "Beep."
Am I ever going to have another shot at this if I don't get the spot? "Beeeeeeep."
The next few weeks were torturous, having to wait for the final verdict. Finally, upon checking my emails for the billionth time, the jury was in: "Congratulations, you're in."
To be continued....
Saturday, November 21, 2015
Wednesday, November 18, 2015
The Countermajoritarian Difficulty
A recent lecture in my online jurisprudence class explored a concept that I found to be very interesting and is a problem (for lack of a better term) in law that I hadn't yet considered until now. The concept is called the Countermajoritarian Difficulty and it concerns the Supreme Court's ability to exercise judicial review.
First, I thought to learn what exactly is meant by 'majoritarian' – what does it refer to exactly? The Encyclopedia of Democratic Thought edited by Paul Clarke and Joe Foweraker (427) defines majoritarianism as being "the doctrine or philosophy that majority rule should prevail in democratic decision-making." This seems to aptly apply to the grand ol' States; our popularly elected representatives are put into place by popular elections and therefore vote in their legislative bodies based on the principles and planks that got them elected....popularly.
It's fair to pause here and point out that there are certain things baked into the crust of the Constitution that keep the majority from walking all over the minority. For instance, the Senate is made up of 2 representatives from each state, thus being a way for each state, regardless of population, to have an equal vote in that senate. The House of Representatives, on the other hand, is fundamentally majoritarian. Another way the Constitution protects minorities is the principle of checks and balances, an example of which is the Presidential veto, which is a maneuver that the elected Leader of the Free World can use to stymie bills coming from Congress.
Now comes the 'countermajoritarian' part of the problem. The Supreme Court is an essential facet of the system of checks and balances set out in the US Constitution. SCOTUS's checking and balancing ability lies in their practice of ruling that laws and executive actions are unconstitutional and thus invalid. This is judicial review, established in the 1803 case of Marbury v. Madison. This principle, accepted as a valid power of the Supreme Court for over 200 years now, might actually be countermajoritarian. This is because SCOTUS is appointed by the President rather than elected by the people. Since the 9 judges aren't elected, popularly or not, they are essentially neither chosen by nor necessarily reflective of the majority.
Considering all of this, what makes it a 'difficulty?' According to Alexander Bickel, the man who coined the phrase 'countermajoritarian difficulty', "Policy choices....[are] best made by elected officials who [are] politically accountable and more likely to reflect public sentiment than [are] unelected justices" (qted. Graber 362).
This is ostensibly a fair point; why should unelected judges have the ability to review laws and executive actions without being able to suffer the political consequences of those actions? They don't have election cycles looming over their heads to keep them from making decisions that are incompatible with the electorate.
Should this just be chalked up to an irregularity in the way our system works? A quirk embedded in the system so that the majority doesn't overstep and trample the minority? Perhaps. History actually tells us that the Supreme Court justices have generally always sided with the popular sentiments of their time, sometimes being more true to it than the legislative branch (qted. Graber 362). So now we must consider if it's even a bad thing that SCOTUS has the power of judicial review – to be sure, the difficulty is not a question of whether or not it was ever 'bad' for the justices to be so endowed. It might not be bad, per se, granted that the high court has actually sided with the public on Constitutional issues on many occasions.
Perhaps this is an important point, then. It's noted by Steven Calabresi in his paper "Textualism and the Countermajoritarian Difficulty" (1386) that the Supreme Court, when it doesn't side with the majority (read: when it invalidates laws and executive actions), it's simply acting as a sort of lag. Since the President is the one that appoints the high court judges, they generally reflect the political and policy inclinations of their appointing President. Because of this, those judges will usually mirror the public sentiment, while the judges appointed from past presidents will generally reflect the political and policy inclinations of the President that appointed them, sometimes decades ago.
With the acknowledgment that there can be a bit of a lag in how SCOTUS rules on some cases and law, we can now better understand how much (or how little) of an impact they have in regard to their being unelected. Even though the majority may feel one way on a subject and the legislature reflects this by passing a law affirming those feelings, SCOTUS, with judicial review, may swoop in and invalidate that law because it doesn't jive with the Constitution.
Let's say not-so-hypothetically that the majority of Americans support the legalization of recreational marijuana use and so Congress passes a bill to legalize it. John Roberts and Co. can use judicial review to consider the constitutionality of the law and may invalidate it for various reasons. In the next 10 years, though, a few of the older justices might leave the bench and then be replaced by a President who has been elected by a reefer-friendly majority. Those justices, presumably being appointed as much for their political views as for their legal background, might then see the Constitution a little differently and a legalization law might then fly through Congress and underneath the President's stamp of approval quicker than Antonin Scalia can shake his jowls at the very thought.
All said, it seems that judicial review is a crucial part of our country's system of checks and balances and though it may not always result in the decisions that favor the will of the majority, it just takes a little patience for the right men and women to be appointed to see the way of the majority. The Countermajoritarian Difficulty, while premised in reasonable Constitutional concerns, is ultimately not a problem that threatens the integrity or accountability of our legal system.
First, I thought to learn what exactly is meant by 'majoritarian' – what does it refer to exactly? The Encyclopedia of Democratic Thought edited by Paul Clarke and Joe Foweraker (427) defines majoritarianism as being "the doctrine or philosophy that majority rule should prevail in democratic decision-making." This seems to aptly apply to the grand ol' States; our popularly elected representatives are put into place by popular elections and therefore vote in their legislative bodies based on the principles and planks that got them elected....popularly.
It's fair to pause here and point out that there are certain things baked into the crust of the Constitution that keep the majority from walking all over the minority. For instance, the Senate is made up of 2 representatives from each state, thus being a way for each state, regardless of population, to have an equal vote in that senate. The House of Representatives, on the other hand, is fundamentally majoritarian. Another way the Constitution protects minorities is the principle of checks and balances, an example of which is the Presidential veto, which is a maneuver that the elected Leader of the Free World can use to stymie bills coming from Congress.
Now comes the 'countermajoritarian' part of the problem. The Supreme Court is an essential facet of the system of checks and balances set out in the US Constitution. SCOTUS's checking and balancing ability lies in their practice of ruling that laws and executive actions are unconstitutional and thus invalid. This is judicial review, established in the 1803 case of Marbury v. Madison. This principle, accepted as a valid power of the Supreme Court for over 200 years now, might actually be countermajoritarian. This is because SCOTUS is appointed by the President rather than elected by the people. Since the 9 judges aren't elected, popularly or not, they are essentially neither chosen by nor necessarily reflective of the majority.
Considering all of this, what makes it a 'difficulty?' According to Alexander Bickel, the man who coined the phrase 'countermajoritarian difficulty', "Policy choices....[are] best made by elected officials who [are] politically accountable and more likely to reflect public sentiment than [are] unelected justices" (qted. Graber 362).
This is ostensibly a fair point; why should unelected judges have the ability to review laws and executive actions without being able to suffer the political consequences of those actions? They don't have election cycles looming over their heads to keep them from making decisions that are incompatible with the electorate.
Should this just be chalked up to an irregularity in the way our system works? A quirk embedded in the system so that the majority doesn't overstep and trample the minority? Perhaps. History actually tells us that the Supreme Court justices have generally always sided with the popular sentiments of their time, sometimes being more true to it than the legislative branch (qted. Graber 362). So now we must consider if it's even a bad thing that SCOTUS has the power of judicial review – to be sure, the difficulty is not a question of whether or not it was ever 'bad' for the justices to be so endowed. It might not be bad, per se, granted that the high court has actually sided with the public on Constitutional issues on many occasions.
Perhaps this is an important point, then. It's noted by Steven Calabresi in his paper "Textualism and the Countermajoritarian Difficulty" (1386) that the Supreme Court, when it doesn't side with the majority (read: when it invalidates laws and executive actions), it's simply acting as a sort of lag. Since the President is the one that appoints the high court judges, they generally reflect the political and policy inclinations of their appointing President. Because of this, those judges will usually mirror the public sentiment, while the judges appointed from past presidents will generally reflect the political and policy inclinations of the President that appointed them, sometimes decades ago.
With the acknowledgment that there can be a bit of a lag in how SCOTUS rules on some cases and law, we can now better understand how much (or how little) of an impact they have in regard to their being unelected. Even though the majority may feel one way on a subject and the legislature reflects this by passing a law affirming those feelings, SCOTUS, with judicial review, may swoop in and invalidate that law because it doesn't jive with the Constitution.
Let's say not-so-hypothetically that the majority of Americans support the legalization of recreational marijuana use and so Congress passes a bill to legalize it. John Roberts and Co. can use judicial review to consider the constitutionality of the law and may invalidate it for various reasons. In the next 10 years, though, a few of the older justices might leave the bench and then be replaced by a President who has been elected by a reefer-friendly majority. Those justices, presumably being appointed as much for their political views as for their legal background, might then see the Constitution a little differently and a legalization law might then fly through Congress and underneath the President's stamp of approval quicker than Antonin Scalia can shake his jowls at the very thought.
All said, it seems that judicial review is a crucial part of our country's system of checks and balances and though it may not always result in the decisions that favor the will of the majority, it just takes a little patience for the right men and women to be appointed to see the way of the majority. The Countermajoritarian Difficulty, while premised in reasonable Constitutional concerns, is ultimately not a problem that threatens the integrity or accountability of our legal system.
Saturday, December 20, 2014
Joshua Wong, his Umbrella, and the Hong Kong Question
Back in the days of colonial fervor, the Founding Fathers of the United States were fed up -- their anger towards the injustices of the British Monarchy were attributable to the revolutionary actions they took and encouraged. Today, we see more of the same, but in a place unfamiliar to the men who birthed our nation and who grace the hallowed annals of American history. Currently, we see a fiery and impressive movement coming from the youth of Hong Kong, China's bastion of economic and political prowess. However, if the current movement, known as the Umbrella Revolution or Umbrella Movement, proves to be successful, the political stranglehold that China has on the Special Administrative Region (SAR) will slacken significantly. Back in 1997, when Hong Kong officially came under Chinese rule as part of an agreement with the UK, they promised the Hong Kongers a "high degree of autonomy" for 50 years [1]. It doesn't come as a surprise then that when China's National People's Congress Standing Committee voted just under two months ago to keep Hong Kong's chief executive election from being decided via universal suffrage, unrest followed [2].
The movement began with a student named Joshua Wong who initiated protests in central Hong Kong after the news broke that there would be a 1,200 person committee to choose candidates that Hong Kongers could then vote on. Mr. Wong has continued to lead protests and has become the de facto leader of the Umbrella Revolution, so named because protesters have emphasized peace in their demonstrations, including holding umbrellas over police-officers' heads to shield them from rain. While the demonstrators have strived for peace, the Chinese government has made large efforts to quash the movement and condemn the protests as an affront to the country and its leaders. Several Chinese policemen were recently arrested for beating a protester, possibly a sign of unrest to come [3].
The perversion of the Hong Kong election for chief executive is a fresh, new stain on a political machine, the Chinese Communist Party, that has relentlessly deterred any efforts for democratization or expansion of civil liberties. Although Hong Kong Basic Law, the constitution of the SAR, explicitly allows for the freedoms of speech and demonstration, the Communist leaders in Beijing would be remiss in its goal of undermining liberty for the sake of pushing its Communist principles
The perversion of the Hong Kong election for chief executive is a fresh, new stain on a political machine, the Chinese Communist Party, that has relentlessly deterred any efforts for democratization or expansion of civil liberties. Although Hong Kong Basic Law, the constitution of the SAR, explicitly allows for the freedoms of speech and demonstration, the Communist leaders in Beijing would be remiss in its goal of undermining liberty for the sake of pushing its Communist principles
down Chinese citizens' throats if they didn't make efforts to dismantle the protests and then blame "the West" for the unrest. It's a tactic seen used over and over by the Chinese government to avoid blame for anything that would make them seem unjust, corrupt, or incompetent.
Since the peak of the movement, it has quickly been disassembled but hardly silenced. All of the major protest sites have been cleared out and the protest leaders, including Joshua Wong, have taken to peaceful calls for further meetings with government officials rather than showing dissent via large demonstrations. All considered, it would appear that the Chinese government and Hong Kong police have largely quashed the revolution, though it will likely be remembered in history as a series of unsuccessful anti-government protests. It's a sad -- and dangerous -- day when a government more or less promises autonomy and instead succumbs to cowardice and the repeal of conviction.
China seeks dominance and won't budge on issues that threaten their government's image. The Chinese people of Hong Kong and beyond suffer by their government and democracy in principle suffers by their victory.
China seeks dominance and won't budge on issues that threaten their government's image. The Chinese people of Hong Kong and beyond suffer by their government and democracy in principle suffers by their victory.
Sources:
- https://www.cia.gov/library/publications/the-world-factbook/geos/hk.html
- http://www.cnn.com/2014/08/31/world/asia/hong-kong-elections/
- http://www.cnn.com/2014/11/27/world/asia/hong-kong-protests-mong-kok/index.html
- http://news.bbc.co.uk/2/shared/spl/hi/in_depth/china_politics/government/html/1.stm
- http://www.basiclaw.gov.hk/en/basiclawtext/chapter_3.html
Tuesday, October 21, 2014
First post....let's see how long I can keep this up
My first post here on the PBL blog is going to be short and sweet. My name is Austin and I enjoy exploring concepts of law and how they affect me. And others. But mostly me. I like making attempts at uprooting various Constitutional principles and then using my own brand of reasoning to mark the follies of our nation. My favorite past-times include concocting obnoxiously convoluted sentences and using vocabulary that went out of style years ago.
With this blog, I hope to achieve a few things. Firstly, I'd like for this to serve as a novel way for employers and schools to survey my writing skills and have a unique profile of my interests and views. Secondly, I want to entertain whoever so choses to read this coagulation of strategically-placed letters and punctuation. If you aren't entertained/enraged/aroused by the word "coagulate," then I don't know what else I can do. Thirdly, I'd like for this to serve as a vessel for my thoughts, bemoanings, fears, and convictions for the days after I pass on to the great port-a-john just past the clouds.
Here's what you ought to get out of all of this: I'm going to write about law and how it affects me. If you like it, share it or plagiarize it or something. If you don't like it, write your congressman or congresswoman and explain in detail the boo-boo that my words gave you.
May the power of my words move in you a wave of symphonic tantalization that renders you speechless/enlightened/mentally incapacitated due to a myocardial infarction brought on by shock at the content presented herein!
Cheers!
"I am always at a loss to know how much to believe of my own stories." ~ Washington Irving
With this blog, I hope to achieve a few things. Firstly, I'd like for this to serve as a novel way for employers and schools to survey my writing skills and have a unique profile of my interests and views. Secondly, I want to entertain whoever so choses to read this coagulation of strategically-placed letters and punctuation. If you aren't entertained/enraged/aroused by the word "coagulate," then I don't know what else I can do. Thirdly, I'd like for this to serve as a vessel for my thoughts, bemoanings, fears, and convictions for the days after I pass on to the great port-a-john just past the clouds.
Here's what you ought to get out of all of this: I'm going to write about law and how it affects me. If you like it, share it or plagiarize it or something. If you don't like it, write your congressman or congresswoman and explain in detail the boo-boo that my words gave you.
May the power of my words move in you a wave of symphonic tantalization that renders you speechless/enlightened/mentally incapacitated due to a myocardial infarction brought on by shock at the content presented herein!
Cheers!
"I am always at a loss to know how much to believe of my own stories." ~ Washington Irving
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