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Legal news from Tuesday, February 19, 2013




Supreme Court upholds drug sniffing dog search
Daniel Mullen on February 19, 2013 12:25 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Tuesday in Florida v. Harris [SCOTUSblog backgrounder] that an alert from a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle. The ruling reversed the Florida Supreme Court [official website], which held [opinion, PDF] that training alone is insufficient to establish the reliability of the dog and that further information, such as field performance records indicating how often the dog falsely alerted, is required. In order for police officers to establish probable cause under the Fourth Amendment [text], there must be a "fair probability" that the contraband or evidence of a crime is present, which is determined by the "totality of the circumstances." Writing for a unanimous court, Justice Elena Kagan noted that while the Supreme Court has rejected a rigid rule in favor of a flexible test, the "Florida Supreme Court flouted this established approach to determining probable cause ... [and] created a strict evidentiary checklist, whose every item the State must check off." Rejecting the "comprehensive documentation" requirement imposed by the Florida Supreme Court, the US Supreme Court established that a dog's satisfactory performance in a certification or training program can sufficiently establish the trustworthiness of its alert and held that in this instance, the defendant failed to introduce evidence that the certification or training was inadequate.

In January 2012 the court granted certiorari in the related case of Florida v. Jardines [SCOTUSblog backgrounder] to determine whether the use of a drug-sniffing dog at the front door of a house is a search under the Fourth Amendment requiring probable cause. The Florida Supreme Court ruled [opinion, PDF] that such a search did require probable cause. The Supreme Court heard oral arguments [transcript, PDF; JURIST report] in the case in October, and a decision is pending.




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UN expert urges recognition of interdependency of environmental and human rights
Peter Snyder on February 19, 2013 12:15 PM ET

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[JURIST] UN Independent Expert on human rights and the environment John Knox [official profile] stated [press release] Tuesday that international governments must acknowledge and account for human rights when formulating environmental regulations. Knox delivered his remarks in Nairobi at the First Universal Session of the Governing Council/Global Ministerial Environment Forum [official website], a gathering hosted by the UN Environmental Programme (UNEP) [official website] this week. Knox urged global governments to utilize recommendations formulated by international organization and UN conferences, specifically Rio +20 [official website], when creating environmental regulations in order to best protect the rights of vulnerable populations. He also warned world governments of the dangers of inaction:
When governments around the world fail to restrict emissions of greenhouse gases, jeopardizing the continued existence of, among others, vulnerable communities in the Arctic and in low-lying coastal areas, they fail to protect many human rights, including rights to life, health, property, and development.
Knox will present a report [text, PDF] to the UN Human Rights Council [official website] in March detailing the issues he will confront in performing his obligations to study and make recommendations about interrelated human rights and environmental issues.

The UN is regularly confronted with issues at the intersection of human and environmental rights. In January more than 140 nations gathered at a UN forum agreed [JURIST report] to a legally binding treaty addressing the use of mercury, a metal that is infamous for its detrimental effects on health and the environment. Last June, the Office of the High Commissioner for Human Rights (OHCHR) [official website] and UNEP issued a joint report [JURIST report] highlighting the need for the implementation of integrative human rights and environmental protection laws and policies to achieve sustainable development. The report stated that the "protection of the environment and the promotion of human rights are increasingly seen as intertwined" and that individuals from poor countries are more vulnerable to diseases and other basic need insecurities as a direct result of the ecosystem.




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Supreme Court rules federal antitrust laws apply to Georgia hospital transactions
Jaimie Cremeans on February 19, 2013 12:02 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Tuesday in FTC v. Phoebe Putney Health Systems, Inc. [SCOTUSblog backgrounder] that federal antitrust laws regulating competition among health service providers apply to an anticompetitive transaction in Georgia because the state law regulating the activity did not clearly articulate authority for the entities to act anti-competitively. In this case, a government entity created by the state, using the general corporate powers given to it by the state, acquired the only competitor hospital of a private actor and then transferred control of that hospital to the private actor, effectively eliminating competition and creating a private monopoly. The court recognized that the principle of state-action immunity prevents federal antitrust laws from applying to states when they impose "market restraints as an act of government," and that this immunity may extend to non-state actors that are carrying out state regulations. It ruled, however, that the law in question failed the "clear-articulation test" because it was not made clear by the state that this type of action was contemplated and authorized by the state. In her opinion, Justice Sonia Sotomayor stated that "given the fundamental national values of free enterprise and economic competition that are embodied in the federal antitrust laws, state-action immunity is disfavored," and should only be applied when actions are taken "pursuant to a clearly articulated and affirmatively express state policy to displace competition."

The court remanded the case to determine whether the FTC and Georgia could continue their lawsuit against the entity responsible for the transaction pursuant to the Section 5 of the Federal Trade Commission Act [text], which prohibits transactions that substantially reduce competition among acute-care medical service providers. This ruling reversed the opinion [text, PDF] of the US Court of Appeals for the Eleventh Circuit [official website], which ruled that state-action immunity applied and the actions of the entity were protected from federal law. On appeal to the Supreme Court, the petitioners also posed the question of whether, despite state-action immunity, the state policy at issue would be sufficient to validate the government entity's sale of the hospital, at the behest of a private actor, when the entity neither negotiated the terms of the sale nor had any oversight of the hospital's operations. Because the Court determined that state-action immunity did not apply, it did not address this question in its opinion.




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Arkansas senate approves bill banning abortions after 20 weeks
Alexandra Cabonor on February 19, 2013 11:11 AM ET

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[JURIST] The Arkansas Senate [official website] on Monday voted 25-7 in favor of a bill [HB 1037, PDF] that would ban all abortions after 20 weeks of pregnancy except in cases of rape, incest or to save the mother's life. The bill, commonly referred to as The Pain Capable Unborn Child Protection Act, will now be sent back [Reuters report] to the House of Representatives [official website], which previously approved [JURIST report] a version that only allowed exemptions where the mother's life was threatened. Representative Andy Mayberry (R) [personal website], who first proposed the bill, conceded to the amendments under pressure from the Democratic minority in the Senate. Governor Mike Beebe (D) [official website] has yet to comment on whether he plans to approve this bill. On Tuesday, the House Public Health, Welfare and Labor Committee will begin to consider the revised version of this bill as well as another bill that would restrict abortions after 12 weeks [AP report]. Current state law prohibits abortions after 25 weeks of gestation.

Though Beebe has yet to comment on his plans regarding this bill, he has said that he would veto an earlier bill [SB 134, PDF] banning all abortions after the detection of a fetal heartbeat [JURIST report]. This bill has failed to garner enough votes to pass the House. The current proposed legislation would make Arkansas the eighth US state to ban or restrict abortions after 20 weeks. Similar laws are currently facing legal challenges in Arizona and Georgia [JURIST reports].




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Iraq judicial panel rejects dismissal of top judge
Julie Deisher on February 19, 2013 11:11 AM ET

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[JURIST] An Iraqi judicial panel has rejected the Justice and Accountability Committee's recent decision to remove chief judge Medhat al-Mahmoud from office. The Committee decided remove al-Mahmoud [JURIST report] last over alleged ties to Saddam Hussein's Baath party [BBC backgrounder; JURIST news archive]. The judicial panel, which reviews decisions made by the Justice and Accountability Committee, did not find strong evidence of the alleged ties and rejected al-Mauhoud's dismissal [AP report]. Al-Mahmoud was chosen by the US-led Coalition Provisional Authority as a supervisor for the Justice Ministry, and in 2005 he became head of both the Supreme Federal Court and the Supreme Judicial Council that oversees courts nationwide. In a separate decision earlier last week al-Mahmoud was removed from the Supreme Judicial Council so that he could remain head of Supreme Federal Court, as required by a new law.

After the US invasion of Iraq and the execution of Saddam Hussein [JURIST report] in 2006, the Iraqi government has been prosecuting and sentencing former officials who were closely associated with the former dictator's party. In July former Interior Minister Mahmoud Thiab al-Ahmed was released from prison [JURIST report] after serving an eight-year sentence for his part in draining the marshes in Southern Iraq. A month earlier, Abid Hamid Mahmud, a former bodyguard and secretary of Hussein, was executed after he was sentenced to death [JURIST reports] by hanging in 2010 alongside former Iraqi foreign minister and deputy prime minister Tariq Aziz [BBC profile; JURIST news archive] and one other official. They were convicted of genocide in connection with his service under Hussein. The death sentences have led to controversy. Aziz, who was sentenced to death in 2010, sought a pardon of his sentence [JURIST report] after Iraqi President Jalal Talabani [BBC profile; JURIST news archive] said in an interview that he would not sign the execution order [JURIST report] for Aziz.




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Ivory Coast ex-president Gbagbo appears before ICC
Samuel Franklin on February 19, 2013 11:03 AM ET

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[JURIST] Former Ivory Coast president Laurent Gbagbo [BBC profile; JURIST news archive] appeared before the International Criminal Court (ICC) [official website] on Tuesday to determine whether the case against him will proceed to trial. Gbagbo's lawyers urged the court to rule that the ICC does not have jurisdiction, and that Gbagbo should be tried by the Ivory Coast authorities currently conducting their own investigation. Gbagbo has been accused of crimes against humanity [AP report] including murder, rape and persecution. Currently scheduled to testify [Reuters report] late next week, Gbagbo will be asked to speak to his involvement in the post-2010 election civil war that resulted in the death of approximately 3,000 people. Gbagbo is the first former head of state to be tried by the ICC.

In December the Appeals Chamber of the ICC dismissed a challenge by Gbagbo [JURIST report] that alleged the court lacks jurisdiction over him. In November the ICC unsealed an indictment [JURIST report] for Gbagbo's wife, Simone, marking the first time that the court has charged a female. In October the ICC denied Gbagbo's motion asking the court for allowance to leave the Netherlands while he recovers from alleged maltreatment received while detained by national authorities in the Ivory Coast before being surrendered to the ICC in November [JURIST reports]. The court denied Gbagbo's leave request upon a determination that he posed a flight risk. The violence that followed the 2010 election displaced millions of people from their homes in addition to the thousands of lives lost. Gbagbo's rival Alassane Ouattara [JURIST news archive] was declared the winner of the 2010 election and is now president.




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Germany court allows same-sex parents to adopt partners' non-biological children
Elie Freedman on February 19, 2013 10:48 AM ET

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[JURIST] The Federal Constitutional Court of Germany [official website, in German] on Tuesday ruled [judgment, in German] that same-sex couples in a civil union can legally adopt [press release, in German] the non-biological children of their partners. The challenge to the existing adoption rules [AP report] was brought by a woman who was denied permission to adopt a Bulgarian girl previously adopted by the woman's same-sex partner. The court held the existing rules to be a violation of equality principles and ordered the legislature to amend the law by June 2014. Previously a same-sex partner in a civil union could only adopt the biological children of his or her partner. Justice Minister Sabine Leutheusser-Schnarrenberger [official profile] was present for the ruling, branding the judgment as a historic step [press release, in German] that provides legal certainty for the children of same-sex couples.

Germany has recognized same-sex civil unions since 2001, but there are still certain rights that they do not share with heterosexual married couples. In August the Federal Constitutional Court ruled that same-sex couples in a civil union [JURIST report] should receive the same tax benefits as heterosexual married couples with regard to land transfer tax, further noting that the decision should apply retroactively. That ruling came during the same month that 13 members of the country's ruling Christian Democratic Union (CDU) [party website, in German] called for same-sex couples to be granted joint-filing tax benefits. In August 2010 the land transfer tax was amended to allow the same benefits [JURIST report] as heterosexual couples for same-sex couples in case of a divorce. In June of the same year an administrative court in Berlin held [JURIST report] that a same-sex marriage performed abroad must be recognized in a registered partnership in Germany.




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Mexico top court publishes same-sex marriage ruling citing US cases
Lauren Laing on February 19, 2013 10:42 AM ET

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[JURIST] The Supreme Court of Mexico [official website, in Spanish] on Monday published the written judgment [materials, in Spanish] for its December decision striking down Oaxaca's same-sex marriage ban. In its reasoning the Mexican high court compared the Oaxaca law to US legislation held to be unconstitutional in two US Supreme Court cases. First, in the 1967 case Loving v. Virigina [opinion text], the US Supreme Court held that a state law banning interracial marriages, based solely on racial classifications, violated the Equal Protection and Due Process [Cornell LII backgrounders] clauses of the Fourteenth Amendment of the US Constitution. Second, in the 1954 case Brown v. Board of Education of Topeka [opinion text], the Court held that laws requiring or permitting racial segregation in public schools also violated the Fourteenth Amendment's Equal Protection clause. The Supreme Court of Mexico compared the racial discrimination in these US cases to the discriminatory nature of same-sex marriage bans, holding that such laws discriminate by depriving same-sex couples both of the right to marry and of the right to marital benefits. Moreover, the court stated that under such laws the children of same-sex couples face discrimination by receiving treatment different from that received by children of heterosexual couples. The court's ruling mandates that in accordance with principles of equity, the Oaxaca civil code must be written to describe marriage as between two people.

The Mexican Supreme Court made its unanimous decision [JURIST report] on the Oaxaca case in December, but refrained from publishing its written judgment until this week. In the US same-sex marriage is currently legal in nine states, as well as the District of Columbia. Last week the Illinois State Senate [official website] voted 34-21 to lift the ban on same-sex marriage [JURIST report] in the state of Illinois. Last month the Rhode Island House of Representatives [official website] by a 51-19 margin approved a bill to legalize same-sex marriage [JURIST report] in the Rhode Island. Later this year the US Supreme Court will likely decide the constitutionality of state and federal laws [JURIST report] defining marriage strictly as the union of one man and one woman.




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