The Foreign Sovereign Immunities Act

Posted on Nov 22, 2016 in Blog Entry: Elections and Courts

The Foreign Sovereign Immunities Act (“FSIA”) renders foreign states (as well as the political subdivisions, agencies, and instrumentalities thereof) immune from suit in U.S. federal and state courts in most circumstances. The FSIA embraces the restrictive theory of sovereign immunity, which confines immunity to a foreign country’s public acts and excludes from immunity the private/commercial acts. Congress enacted FSIA to address a “modern world where foreign state enterprises are every day participants in commercial activities.” Samantar v. Yousuf, 560 U.S. 305, 323 (2010).  Section 1605 creates exceptions to immunity in limited circumstances set forth in 28 U.S.C. Section 1605. Some of the more frequently litigated exceptions include when the foreign state has explicitly or implicitly waived immunity, and when the subject of the lawsuit is the foreign state’s commercial activity involving the U.S. In a recent court decision addressing the commercial activity exception, one federal appeals court allowed a U.S. citizen to sue the railway service owned by the Republic of Austria for an accident that occurred in Austria. The court found that because the Austrian railway sold tickets in the U.S., this constituted commercial activity with the U.S. Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (en banc). This decision, which is binding in certain western states such as California, appears to expand the commercial activity exception and thereby reduce the immunity of foreign governments in some situations. Significantly, foreign sovereign immunity does not protect a foreign official sued for acts performed in an official capacity because the definition of “foreign state” does not include a “foreign official.” See Samantar v. Yousuf, 560 U.S. 305 (2010). In that case, the Supreme Court held that “an individual foreign official sued for conduct undertaken in his official capacity is not a ‘foreign state’ entitled to immunity from suit within the meaning of [FSIA].” Id. The Court emphasized that its holding was narrow and that the official may still invoke foreign sovereign immunity under the common law, including the immunity that applies to a foreign head of state. Id. at 325-26. Also important is the fact that to be sued in this country, the foreign official must have connections with the U.S. sufficient to constitute “minimum contacts”. Along with other exceptions, foreign sovereign immunity does not prevent U.S. courts from having jurisdiction over foreign governments for personal injury or death resulting from acts of...

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Florida Bar Results Reveal Poor Performance on First Time Bar Exams

Posted on Apr 19, 2016 in Blog Entry: Elections and Courts, Blog Entry: Spinning the Law

Florida Bar Results Reveal Poor Performance on First Time Bar Exams

The dreaded Bar Exam. Even for those unacquainted with the legal profession, pop culture has taught us that the Bar Exam is to be feared and painstakingly prepared for. But for those studying to become lawyers, this reality is all too real. A recent study from the Florida Board of Bar Examiners shows that Florida’s law school students do quite poorly on their Bar Exam the first time through. Even though these aren’t first-time test takers, the results are staggering and show just how hard taking the Bar Exam can be. Here are a few percentages for several Florida universities’ law students on their first attempt at the Bar Exam: Florida Coastal–32.7% Barry University–35.9% University of Florida–56.3% University of Miami–53.1% Florida International University–84.6% Nova Southeastern University–75.0% While not all schools performed poorly (another shout-out for Florida International University and Nova Southeastern University!), the data seems to show one common trend: the larger the testing group, the poorer the results. Does this correlate to the size of a cohort or with class sizes? Only time or another exhaustive study can provide us with the answer. Why is the Bar Exam so difficult? The results of this study, and many others, beg the question: why exactly is the Bar Exam so difficult? These are some of the reasons why students wind up doing very poorly, or even failing, their Bar Exams and and how you can avoid some common pitfalls. A simple rule of thumb to follow: you’ll pass the exam with your strengths, and you’ll fail with your weaknesses. Instead of spending a lot of time trying to turn your weaknesses into strengths (often, this is impossible or at least very unlikely), devote time to refining your strengths so that you know you’ll do your best on these sections! Stress is killer: the stress (and intimidating aura) surrounding the Bar Exam can cause students to get flustered and anxious. This can create a number of problems, including causing students to attempt to cram too much information (effectively learning nothing) and literally pushing their bodies to their limits. This naturally puts students off their A-game. While you might know the law in and out, you may not have the proper skills of showing your work and making a convincing argument. These are both skills that any successful lawyer will need to have. You don’t manage your time wisely. The Bar Exam has timed sections, and if you can’t work with those strict guidelines, you will surely fail. Studying time management skills is a great way to increase your chances of...

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Florida Governor Rick Scott Signs Bill, Defunds Planned Parenthood

Posted on Apr 5, 2016 in Blog Entry: Elections and Courts

Florida Governor Rick Scott Signs Bill, Defunds Planned Parenthood

On March 28th, Florida Governor Rick Scott signed a bill into law that would defund Planned Parenthood abortion business and any other clinics that also do abortions. This will eliminate about $200,000 that the abortion business of Planned Parenthood receives from the government. HB 1411, also known as The Termination of Pregnancy bill, was sponsored by state Rep. Colleen Burton and passed the Florida House 76–40 and the Florida Senate 25–15. Both the Florida House and Senate are Republican-led. Florida is now the 12th state to block taxpayer dollars from going to Planned Parenthood, the nation’s largest abortion provider. The bill will go into effect on July 1st. It prohibits any taxpayer dollars from going to groups that own, operate, or are affiliated with licensed abortion facilities. As you can imagine, reactions to this legislation are mixed and largely divided based on party lines. Progressives and abortion advocates are shocked, while anti-abortionists are praising the decision. “This cruel bill is designed to rip health care away from those most at risk,” says Cecile Richards, president of Planned Parenthood Federation of America. “Abortionists will finally be held to the same standard as all other physicians who perform invasive procedures in a non-hospital setting by the requirement to have admitting privileges and transfer agreement with a nearby hospital,” says Ingrid Delgado of the Florida Conference of Catholic Bishops. One of the motivations for the move is the fact that Planned Parenthood’s non-abortion services have been rapidly declining, according to their own annual reports. For example, between 2009 and 2014 their cancer screenings and breast exams/breast care fell by 50%. Pap smear tests dropped by nearly 66%. In Florida there are 29 health care alternatives for each Planned Parenthood location—22 in all that will no longer receive funding from the government. Supporters site this as rationale for defunding Planned Parenthood in the state: there are many alternatives available to women, and Planned Parenthood had been declining in certain key areas as well. One way or another, it likely won’t be long before Planned Parenthood is coming across our dashboards...

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Similar Court Ruling May Help Apple in Legal Battle With FBI

Posted on Mar 8, 2016 in Blog Entry: Elections and Courts

Similar Court Ruling May Help Apple in Legal Battle With FBI

You’re no doubt aware of the case: Apple and the FBI have been sparing over access to the San Bernardino shooter’s iPhone, with the FBI requesting the creation of software to dodge around the iPhone’s passcode to access the shooter’s private information. In related news, a federal judge in Brooklyn ruled in late February that the FBI could not force Apple to unlock the iPhone of a suspected drug dealer. If nothing else, that boosts public opinion in Apple’s favor. A California judge will consider the case of the iPhone used by San Bernardino attackers, and Apple absolutely intends to cite the Brooklyn ruling in their favor. The Brooklyn judge ruled in Apple’s favor because Congress specifically considered and rejected a bill that would require companies like Apple to make the data on a locked iPhone available to law enforcement in such cases. As the U.S. Magistrate Judge James Orenstein puts it, “the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.” The related Brooklyn case ruling could prove incredibly important in Apple’s case against the FBI. Apple is also receiving good press, thanks to their current legal representation. In an interview with NPR, Ted Olson (former solicitor general during George W. Bush’s first term who is currently representing Apple in this case) argued that the iPhone was expressly designed to prevent the sort of thing the government is asking Apple to do. “What in the law requires us to redesign the iPhone, to rewrite code, to provide an Achilles’s heel in the iPhone?” Olson said. “It was designed to protect the secrecy and privacy of individuals who use the iPhone.” “What the government is asking Apple to do here is to redesign this particular iPhone, to take weeks of its engineers to put together a system to disable the systems that Apple put into place in the first place…They want various features to be changed so you can get around the passcode.” Click here for more information on the case from The Verge, who wrote a very informative article about the five questions that will decide the...

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Study Concludes Human Trafficking Judged Unevenly

Posted on Feb 9, 2016 in Blog Entry: Criminal Cases, Blog Entry: Elections and Courts

Study Concludes Human Trafficking Judged Unevenly

Misconceptions about human trafficking are holding us back from creating lasting, tangible changes. According to a wide-ranging new study by Northeastern criminologist Amy Farrell and her research partners, the severity of the criminal penalty for human trafficking in the U.S. has no effect on the number of suspects who are arrested and prosecuted for the crime. The study also found that judging of human trafficking crimes was uneven among the public and the law. It’s no surprise that human trafficking is a major issue in the modern world. In fact, the U.S. Department of Health and Human Services recognizes human trafficking as “a modern-day form of slavery” and says it “is tied with the illegal arms industry as the second largest criminal industry in the world today.” Unfortunately, misconceptions about the realities of what human trafficking is and how it actually happens in the U.S. are making the fight against it even more difficult. Misconceptions As Salon notes in a very insightful article about human trafficking, several misconceptions (present in law makers and regular American citizens) hurt our ability to draft effective legislation. One example is the misconception that human trafficking only happens to foreigners, not to domestic U.S. citizens. This is not true, and it’s made all the more problematic when this misconception is used to create laws that don’t think to protect Americans as well. There is also the misguided belief that teens, as opposed to children, consent to be trafficked because they like it and the money involved. The simple fact is that human trafficking is simply abuse. Exploiting the Visa System Another huge concern is the startling connection between human trafficking and the visa system that is currently in place in the U.S. According to the Department of Homeland Security’s Office of the Inspector General, data collected from 2005 to 2014 by Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS) found that work and fiancé visas were the predominant means by which more than half of human traffickers known to the federal government legally smuggled their victims into the US. This is particularly troubling because it means that human trafficking must be fought on multiple legal fronts, naturally increasing the difficulty of seeing quick results. What to do? However, the situation isn’t entirely hopeless! The findings of the study suggest that more comprehensive laws lead to more arrests and prosecutions, instead of simply increasing the severity of criminal penalties. Click here to read a full copy of the...

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Miami Under Consideration As El Chapo Trial Venue

Posted on Jan 26, 2016 in Blog Entry: Criminal Cases, Blog Entry: Elections and Courts, Blog Entry: Spinning the Law

Miami Under Consideration As El Chapo Trial Venue

Miami, Florida is one of two U.S. cities under serious discussion for being the location of the trial of Joaquin “El Chapo” Guzman, Mexican cartel kingpin. Federal prosecutors in six states have filed indictments against Guzman, but the Eastern District of New York and the Southern District of Florida have overlapping cases that could be combined. Therefore, headquarter sites in Brooklyn and Miami have emerged as the leading contenders for the locations of the sensational and widely anticipated trial. “The Southern District of Florida’s extraordinary record with respect to major narcotics trafficking cases could be an important factor,” Kendall Coffey told McClatchy news service. “It’s a history-making case that, if successful, could deal a huge blow to today’s most violent drug trafficker. This case will define careers for prosecutors, (drug) agents, and even the trial judge.” Guzman was captured in the Pacific coastal town of Los Mochis, Mexico, seven months after he escaped from a high security Mexican prison through a sophisticated tunnel that experts project may have cost more than $1 million to dig. The indictments against Guzman The overlapping indictments in Brooklyn and Miami accuse El Chapo of multiple counts of drug trafficking and money-laundering. Unfortunately for Miami, an early look reveals that Brooklyn may have the inside track, as federal prosecutors in Brooklyn have also accused Guzman of 13 murders, assassinations, or attempted killings of Mexican police, soldiers, and rival gang members. These accusations may very well tip the scales in Brooklyn’s favor. Defense by playing “Donald Trump card” Guzman’s lawyers have attempted to fight extradition to the U.S. in general, notably using a defense that comes down to “because Donald Trump.” Guzman’s lawyers argue that there is anti-Mexican sentiment in the U.S. and that that sentiment would not allow for a fair trial. Donald Trump is cited as an example of the anti-Mexican sentiment that is persistent throughout the country. We are interested to see how the entire trial process turns out—stay...

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