2012 year-in-review: LL.B. to LL.M.

In the year since graduating from the University of Edinburgh much has happened in my life. I have gone from law student to campaign manager to youngest elected city council member of my home town to working for the leading NGO on maritime piracy to once again being a law student. In this time I have met and visited with the president, vice president, GOP challenger, a retired US Supreme Court justice, the highest judges from New Hampshire, Texas, and New York, along with visiting with Colorado's governor, New Hampshire's governor, Texas' governor, the junior US senator from South Dakota, and a former US senator from Pennsylvania, not to mention having lunch with a former governor of New Hampshire and a former US senator from Colorado. Life has also been challenging, I was present when my aunt Clara passed away and not long after that I received the letter saying I had been denied admittance to sit the New York bar. This resulted in me having to step down as trustee and pursue an LL.M. degree, which is one of the new requirements for sitting the bar. I also experienced the economic downturn, but applying to over 50 businesses and hearing no responses. Perseverance and no matter the odds, never give up, have become daily mantras. The following is a year in review:

27 November 2011 - graduated from University of Edinburgh with an LL.B. in Law

December 2011 - launched exploratory committee for a possible bid for the Colorado House of Representatives, Dist 61

January 2012 - began campaign manager for Bruce Hovde's re-election campaign for Delta County Commissioner, Dist 2

February 2012 - began campaign for Orchard City Board of Trustees

3 April 2012 - elected Orchard City's youngest Trustee

April - October 2012 I served on the Orchard City Board of Trustees. 

April 2012 - became campaign manager for Mark Roeber's Delta County Commissioner Campaign, Dist 3

May - August 2012 - maritime piracy legal researcher (intern) with Oceans Beyond Piracy, which is an NGO that provides research on the economic and human costs of piracy at sea, along with engaging stakeholders to find a governance based solution to countering piracy. Working included revising and enhancing counter piracy matrix, editing law reports, following pending criminal and tort cases, and providing information for diplomats, the military, and industry. 

September 2012 - begin LL.M. in Intellectual Property (IP) Law at the University of New Hampshire's School of Law (Franklin Pierce Center for Intellectually Property)

September 2012 - visited Portland, Maine; Kennybunkport, Maine; Boston, Massachusetts; Mount Washington, New Hampshire; the White Mountains of New Hampshire; Newport, Rhode Island

October 2012 - shook hands with President Obama in Portsmouth, NH; visited with Vice President Joe Biden in Concord, NH; talked constitutional law with form US Supreme Court Justice David Souter in Concord, NH; and gave words of encouragement to Mitt Romney in Manchester, NH.

October 2012 - travelled to New York City for the first time since I was 12 years old. Met up with my former Edinburgh flatmate and good friend, Fabio Pucci. We were flatmates for nearly 3 1/4 years. He was in NYC to present a paper at the Rockefeller. We went to the top of both the Rockefeller Center (Top of the Rock) and the Empire State Building. I stayed the first night in Harlem and the second in Times Square. Whilst walking in Central Park, I thought to myself Manhatten Island is crazy, fun, and looking at the buildings might injure my neck ;-) I also went to the cite of the World Trade Center attacks. I was disappointed that there were venders (including the National Commission) selling goods, profiting off of the dead of nearly 3,000. Fabio put things in perspective by saying the towers were about commerce and free enterprise, capitalism, and trade. "If there weren't venders selling goods and making money on the very site where so many died, then the terrorists would have won." 

October 2012 - sat the Multi State Professional Responsibility Exam (MPRE), this exam, along with the Bar Exam, is required to be admitted to practice law.

October 2012 - visit Montpelier, Vermont

October 2012 - elected as a "write-in" to the Board of Governors of the New Hampshire Student Bar Association 

November 2012 - hung out with the Supreme Court Chief Justices of New Hampshire, Texas, and New York; in addition to having lunch with former New Hampshire Governor Steve Merrill.

UK Academic Tour: Edinburgh, Cambridge, Oxford & Stratford-Upon-Avon

Today I just got back from an academic tour of southern England with my friend and LL.B. colleague, Jonathan Price. Prior to leaving for England on Monday, 13 June, I met up with my former Third Grade teacher, Carol (Beck) Martinson, and her husband, Lee Martinson, in Edinburgh. They were on a cruise ship tour of the North Sea countries and one port of call was Rosyth, which is about 30 minutes from the city centre of Edinburgh. It was pretty cool showing them around Edinburgh and catching up over a traditional Scottish pub lunch.

After leaving the Martinsons at Waverly Train Station I walked up the Royal Mile and noticed a plethora of classic Bentleys. One Bentley from the 1920s was displaying a Colorado and Swiss flag and I had to inquire about the owner. The man was half-English and Swiss, but lived in Colorado. His attire and demeanour seem very much reminiscent of someone from the autocracy and I didn’t suppose collecting classic Bentleys and having multiple residences around the world were characteristics of an average middle aged man. He was very kind and allowed me to photograph him with his prize car, which carried a top speed of 120 mph (193 km/h).

I was delighted to receive a text from a friend, Nayha Sethi, whom I studied with during the LL.M. programme that another friend, Myggan Hagenfeldt, was going to be in town. I met with the two of them plus all of the others who were in the LL.M. together and are still hanging about in Edinburgh at the Advocate pub. It was great to also meet Myggan’s fiancé.

At 22h00 I arrived at the bus station to take the night bus down to London, where I would rendezvous with Jonathan. To my surprise, another friend and colleague, Pippa Robertson, from the LL.B. programme was also riding the same bus to London. Even more surprising we were going to be in Oxford on the same day and taking the same bus back to Edinburgh on Thursday (16 June) night. For the majority of the ride we talked about our travels around the world, the LL.B. and post degree plans and dreams. I discovered the two of us could not be more opposite, yet we have always gotten along – perhaps a tribute to a diplomatic personality my characteristics inherited from my grandpa Howard of not knowing a stranger.

From London, Jonathan and I rode the train to Cambridge. Once in Cambridge, we checked into our hostel, which was inexpensive, but not very nice, and headed for the university buildings. Cambridge and Oxford are both colligate institutions, meaning they are a collection of colleges, each with their own student living space, dining halls, libraries, chapels, quadrangles and cloisters. Wealthier colleges would also have sports halls, gardens, deer parks, orchards, docks for punts, and such amenities as lawn for tennis, croquet, and bowling. Each college looks after their own students; however the university’s function is to regulate the curriculum, examinations, lecture and tutorial time tables and facilities. Each college will have students from a variety of backgrounds, each reading varying topics. For example, we met up with a friend of mine, Liz Campbell, who is doing her LL.B. at Cambridge and she explained that only five students in her college are reading law, out of two or three hundred students in total. There are 31 colleges in Cambridge and 42 (9 of which are private) at Oxford.

The colligate structure seems to extract the greatest learning potential out of students, however the inequality of the colleges and the elitist attitude of the entire university mean that there is aura of self confidence and entitlement to being the leaders in their career fields, which is both commendable and irritating if you are not from the Ivy League / OxBridge.

Jonathan and I engaged in the traditional Cambridge activity of punting on the River Cam and drinking Pimms and Lemonade. After punting we joined my friend Liz for the opening night of Cambridge Footlight’s Edinburgh Fringe 2011 comedy show. Footlights is the British comedy club of Cambridge University, founding in 1883 and has amongst its alumni the likes of John Cleese, Stephen Fry, Hugh Laurie, and Douglas Adams to name a few. After the performance we took a drink at the Cambridge Union.

The next day we rode the three hour bus to from Cambridge to Oxford and joined two of Jonathan’s friends for lunch a Oriel College, Oxford, which is the fifth oldest (founded 1326) amongst the colleges of Oxford and was funded by a foundation charter from the monarch, King Edward II. Oriel would be equivalent to King’s College, Cambridge, since it was originally funded by the Crown. Because of this, Oriel’s dining hall features the largest portrait of HM Queen Elizabeth II.

We toured several Oxford colleges, including Christ Church, Trinity, Lincoln, Jesus, Magdalen, Merton, Pembroke, University College. At Jesus College we watch students douse a fellow student who had just completed her final exam. Apparently this is a fairly old Oxford tradition. I did not realize before visiting Oxford, that student wear academic dress to each and every exam and must also carry (but never wear) their mortar board hat. Only upon commencement and award of degree is the student permitted to don the hat. Also at graduation, a academic hood is worn to denote the degree and college. A few years ago Cambridge voted to get rid of the tradition of wearing the academic robs to exams and in response Oxford liberalized the tradition by permitting student to wear cotton, in addition to silk socks, to exams.

During the evening we attended Choral Evensong at Christ Church College Cathedral, which is the seat of the Oxford Archbishop. The music of the choir was Heavenly and it was very nice to be able to partake in such a vivid and living tradition of the university. After Evensong we had a traditional pub dinner at the Eagle and Child pub, which was a famous hang out of C.S. Lewis and J.R.R. Tolkien and their literary friends known as the Inklings. On the way back to our hostel we pasted by Black Friars, which my friend and former flatmate, Kyle Bixenmann, from the U.S. studied. The next day we had breakfast at Oriel College and then caught the train for William Shakespeare’s birthplace, Stratford-Upon-Avon.

Stratford-Upon-Avon is a town which survives solely on William Shakespeare’s legacy and has been a tourist destination for over three hundred years. Some of the first entries in the visitor registry of the birthplace house were Thomas Jefferson and John Adams, both of whom went on to serve as presidents of the American Republic. The home Shakespeare actually built no long exists, however the adjacent home and the home of his daughter, who married a wealthy medical doctor, are preserved as museums for the nation and public. Had we had more time it would have been great fun to attend a performance of the Royal Shakespeare Company (RSC), which operates in Stratford-Upon-Avon, London, and New York City. The town is very Elizabethan, with the iconic black and white framed homes with the thatched roofs. A few building have been built to match the vintage ones, but a careful eye will note that the ancient buildings lean and sag from the weight and passage of time. It was a pilgrimage to finally see where William Shakespeare was born and lived and to have the connection with one of the world’s most well known playwrights.

From Stratford-Upon-Avon, Jonathan and I rode the bus to London where we met Pippa at Victoria Train Station for a cuppa tea and a recap of our exciting week. From Victoria, London, we headed back for Scottish Capitol of Edinburgh. I am always amazed and impressed that I have had the opportunity to study and live in Great Britain and be able to see sights which I had previously only read about, I am truly a blessed individual. 

Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

Obama: The Great “American” Finger Pointer

Pres. Barak Obama’s first, hopefully only, term policies has resulted in business unfriendly tax policies, vast government spending and burdensome new financial and health care regulations. Not to mention an industry killing moratorium on deep water drilling in the Gulf of Mexico which provides a quarter of all oil consumed in the United States. The combination of these policies has resulted in unemployment soaring to 10 per cent and many small businesses struggling to stay in existence.

This president has the audacity of pointing fingers at everyone from a Cambridge, Mass. police officer to business and industry leaders. Somehow he has managed to depict both Wall Street and BP as "fat cat bankers", engaging in "reckless practices", a label which has managed to put-off many former supporters within the business community. Instead of working with those within the business and industry, Obama has opted to point his index finger and use his bully pulpit to tell the world, whom he thinks is liable to the world for damages. What happened to the mantra of former American Pres. Harry S. Truman, the one that went, “The buck stops here”? What hasn’t been the fault of “big business,” “fat cat bankers,” “failed Bush years,” a “broken system” or “racist Republicans,” seems to be the fault of “a maverick general,” “bigoted police officer,” “employers” or “insurance companies”.

This finger pointing president started blaming BP for the oil leak, after BP told the nation they fully accepted responsibility and were going to “make it right”. Where was the president during the first few weeks of the disaster – holidaying, attending a Paul McCartney concert and hanging out with Hollywood celebrities? Not bad for a guy “deeply concerned” for the people of the Gulf States.

Can Pres. Obama deliver a single speech without having to raise his hand and turn it into a physical finger point at the camera? Instead of blaming everyone and their dog for the problems facing America, perhaps the president would be well served to stand-up and tell the nation the “buck stops here!” There are no simple solutions, but there are intelligent choices and those choices come from surrounding yourself with advisors who are willing to think outside the box and conjure up creative alternatives to cyclical failed policies.

Policy items which should be tackled are reducing excessive government spending, creating a plan to pay down the deficit, loosening financial regulation to give small businesses the liquidity to return to work and start hiring again, sending soldiers to the US-Mexico border to bring peace and security to an ever-growing national security threat. Taking steps to stop illegal immigration and then working with employers to design an effective guest worker programme to meet the needs of the nation’s agricultural sector. Allowing American soldiers abroad to either fight or come on home. The bulk of the agenda should be centred on domestic affairs, as the world is best served by a healthy American economy that can import and export goods, in return helping bring the world’s economies back on their feet.

The United States should lead by example, not by bold words and finger pointing. The alternative is this headline: While Obama finger pointed, America burned and the world states left them in the dust.

Nobel prize premature

American President Barack Obama winning the Nobel Peace Prize is like Olympian Jesse Owens winning
the gold medal in 1936, before actually running the race. The Nobel prize should not be treated as a

mandate, but as an award for contributing to the peace of the world. I highly doubt that when Obama was nominated for the award on Feb. 1 (10 days after taking office) he had contributed to the peace of the world, with the exception of not being Mr. Bush. Prizes and awards should be given for accomplishments, not for anticipated accomplishments or outcomes. Former American President Jimmy Carter did not win the Nobel Peace Prize until 2002, almost 20 years after leaving the Oval Office. This was a capstone to an amazing career of working towards world peace through diplomacy, humanitarian efforts, and working with the public and private communities to improve the lives of people around the world. The Nobel Committee needs to re-assess if it is giving the prize as an award or an encouragement for earning the award. Mr. Obama needs to actually do something to show he deserves this great award.

See: Delta County Independent