试题一 (239 words)
Few informed observers of America's civil justice system would dispute that Americans who cannot afford legal representation in court "routinely forfeit basic rights, not due to the facts of their case or the governing law, but due to the absence of counsel." Forging a solution to this serious problem, however, has proven elusive, with the United States now lagging far behind other advanced industrial democracies in ensuring access to justice for its low-income population. Litigation strategies aimed at achieving the recognition of a constitutionally based right to counsel have foundered as judges have hesitated to establish new rights that would likely be onerous for the government to support and enforce. Meanwhile, legislators have been reluctant to commit substantial additional public funds to make a civil justice system already regarded as wasteful and dysfunctional even more litigious. Against this background, it is noteworthy that all three branches of California's politically fractured state government recently rallied around a new approach to the problem in the form of Assembly Bill (AB) 590. The legislation, signed into law in the fall of 2009, establishes pilot programs that will begin to give low-income Californians access to counsel in "civil matters involving critical issues affecting basic human needs." Defined by three key elements—legislative as opposed to judicial line-drawing, targeted experimentation, and an emphasis on pragmatism over judicially enforceable guarantees—AB 590 represents an important new model for expanding access to justice to low-income people.
试题二 (263 words)
As all criminal justice observers know, the United States Constitution requires the suppression of evidence found by illegal police activity. Texas's statutory exclusionary rule goes even further by excluding evidence illegally procured by private citizens. Texas's expansive exclusionary rule is drastically out-of-step with the rest of the nation and very beneficial to criminal defendants.
The Texas Code of Criminal Procedure specifies that "no evidence obtained by an officer or any other person in violation of federal or state law shall be admitted in evidence against the accused on the trial of any criminal case." Under this rule, if an individual citizen violates a statutory or constitutional guarantee and turns the resulting evidence over to the police, that evidence will be inadmissible, even if the police had no connection to the misconduct.
For example, in 2005, a priest in Grand Prairie, Texas was charged with ppossession of child pornography. Because the lurid images had been illegally procured by private actors—another priest and a church deacon—who searched his computer without consent, the judge was forced to suppress the photos. With no evidence to rely on, state prosecutors had no choice but to dismiss the charges. Although Texas's statutory exclusionary rule decimated the state prosecution, federal prosecutors were not restricted by a private actor exclusionary rule. Federal prosecutors therefore charged the then-former priest with violation of federal child pornography laws and relied on the very same evidence that was inadmissible in Texas state court. The former priest pleaded guilty to the federal charges and was sentenced to more than four years in federal prison.
On July 12, 2007, Senator Russ Feingold proposed the Arbitration Fairness Act of 2007 (AFA). The bill purports to address numerous failings of current arbitration practice in the United States by amending the Federal Arbitration Act (FAA), which, along with subsequent case law interpreting it, largely shapes current arbitration practice. The FAA, passed in 1925, was initially designed to permit arbitration agreements to be enforceable across state lines. Advocates of the FAA emphasized both the business and legal advantages of increasing arbitration's usefulness. In addition to these gains, Congress hoped to confront longstanding suspicion of arbitral proceedings by promoting a policy favoring arbitration. By its terms, the FAA implies a preference for extremely limited judicial review. While it permits the courts to enforce an agreement to arbitrate, it allows review and possible reversal of an arbitral award only on narrow procedural grounds.
For many years following the passage of the FAA, courts took a relatively modest approach in considering the scope of pre-dispute arbitration clauses. For example, in 1953 the Supreme Court refused to enforce an agreement to arbitrate, stating that the right to a judicial forum could not be waived. Over time, however, the Supreme Court articulated two doctrines that gave pre-dispute arbitration clauses a uniquely powerful position among contracts. First, the separability doctrine effectively provides the arbitration clause with "its own legal identity." A second doctrine, known as the kompetenz-kompetenz doctrine, gives the arbitrator sweeping authority to decide on matters concerning "the validity or the scope of the agreement to arbitrate." In practical terms, these doctrines combined mean that even when the contract itself apparently contains problems of formation or illegality that would normally render an entire contract invalid, the arbitration clause is still binding; an arbitrator rather than a court must evaluate the validity of the contract.
The facts of the Arar case are well-known and highly provocative. Maher Arar is a dual citizen of Canada and Syria and resides in Canada, to which he immigrated with his family when he was seventeen. In September 2002, during a layover at John F. Kennedy Airport in New York, he was detained by U.S. officials as a possible terrorist. Arar alleged that, during his detention in the United States, he was denied access to counsel and was subjected to coercive questioning and abusive conditions of detention. Arar was then transported, without his consent, to Syria. He alleged that, while in Syria, he was tortured and interrogated pursuant to instructions from U.S. officials. In October 2003, Arar was released into the custody of Canadian officials, and he returned to Canada.
Arar filed suit in the Eastern District of New York against several federal officials in their personal capacities, alleging that his Fifth Amendment rights were violated by his detention in the United States (“domestic claim”), as well as by his incarceration and torture in Syria (“Syrian claims”). The district court dismissed with prejudice Arar's Syrian claims on the grounds that “the foreign policy and national-security concerns raised [by these claims] are properly left to the political branches of government.” It also dismissed his domestic claim on the grounds that Arar had failed to show which defendants, if any, were personally involved in the alleged constitutional violations that occurred in the United States. The court gave Arar leave to “replead [this] claim without regard to [the Syrian claims] and name those defendants that were personally involved in the alleged unconstitutional treatment.”
Writing for a panel of the Second Circuit, Judge Cabranes affirmed the district court's dismissal of Arar's Syrian claims, both because an alternative remedial scheme existed and because national security and foreign relations concerns constituted “special factors” that “counsel[ed] against creation of a Bivens remedy.” He dismissed Arar's domestic detention claim for failure to state a claim.