The Value of Trial Experience to a Young Lawyer

As a new lawyer, I struggled to come up with blog topics. Being only two years out of law school, I don’t pretend to have near the amount of knowledge or experience as the frequent contributors and readers of this blog. I contemplated a post about the recent United States Supreme Court decision in Missouri v. McNeely, but Dean O’Hear would cover that topic in a much more eloquent and researched fashion. I then contemplated a post about the privacy implications regarding the recent news on the NSA collecting phone records (or even more recently—the criminal defendants demanding the records as exculpatory evidence). However, as a past student of Professor Boyden’s Law of Privacy class, I’m inclined to believe his post on that issue would make a much more interesting read. I finally decided on a topic that has monopolized my attention this Spring and Summer: jury trials. While a post on jury trials authored by Professor Blinka would likely be deemed so sage as to be cited by the Wisconsin Supreme Court, I’ll tackle the area from what I’ve learned as a new lawyer.

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So Long, Harris — Breyer’s on Board

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come. 

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A Response to the Claim of Chinese Sovereignty Over Okinawa

800px-Qing_Dynasty_1820According to recent news reports, a growing group of Chinese officials and scholars has commenced a semiofficial campaign to challenge Japanese sovereignty over Okinawa. This is of course in addition to the widely publicized Chinese efforts to challenge Japanese control over the Senkaku / Diaoyu Islands. The basis for the claim to Okinawa appears to be a combination of early history and the Cairo Declaration, which the United States, China, and the United Kingdom issued in 1943 to help prepare the post-war order in East Asia. The argument goes like this: Okinawa and the other Ryukyu Islands were originally Chinese territory because the Ryukyu Kingdom was a tributary state of the Ming and Qing Dynasties; Japan stole the Ryukyus by invading them in 1609 and formally annexing them in the late 1870s; the Allies demanded the reversion of sovereignty over Okinawa to China in 1943 by stating in the Cairo Declaration that “all the territories Japan has stolen from the Chinese . . . shall be restored to the Republic of China”; and Japan agreed to the reversion of sovereignty by accepting the 1945 Instrument of Surrender, which provided for the enforcement of the Cairo Declaration. In this post, I’d like to identify a few reasons why this argument is unpersuasive.

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