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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.
试题三(300 words)
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.
试题四（327 words）
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. |
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