"Editor's note"
This article for United States Supreme Court watchers, Ye Fan Park in Shanghai on September 18 the monsoon books lectures. Guests and hosts are the young scholar Yu Xiao, Cao Mianzhi. Surging published two news following is part audience interactive section of this article.
Audience: Hello, teacher! Just the last one "traffic lights" case I am confused a bit. If the "exclusionary Act" has a "good faith exception", so if someone forged a "good faith", in this case I feel that problems may arise.
Ye Fan: this is a problem. But any country cannot design a perfect rule of law, only close to perfect. As can be seen, both have problems: too strict would damage the rights of the accused, taisong suspects it is easy to go unpunished. Indeed, the police could abuse forge goodwill, but the policeman if they forged a judgement made by the Court.
Yu Xiao: on this point, let me give you an example. Last year in the United States there were two big ethnic clashes, one of which is, a black man is crushed on the ground breath, and later died, the second case is much closer to what you said: a black child carrying a toy gun, kept waving outside the exhibition hall, police arrived on the scene after the police. At some distance from the child when they saw the boy being brandished a gun just shot and killed him. As you say, later in the course of the trial, the police thought they saw was a real gun, has a strong risk. So, you may indeed happen, but in specific cases, because of free evaluation of evidence, the jury of judges and other constraints, although the specification was not perfect, but it will be analyzed.
United States democracy marched in the rain to protest the United States white black youth shot dead. This picture from the network
B the audience: I have a question and would like to explore a bit, United States was attended by expert system in China has, in many of our forensic is not black and white. Like a toy replica gun was classified as firearms were toys, results often are not clear at this time, you need lawyers and experts debate, so as to improve the clarity of the judge's ruling.
Ye Fan: I would like to emphasize is that these few cases special is that is related to the drug, DNA, or drunk driving, something is clear.
Audience b: Yes, but these are individual cases, I would say, as an institution, about the benefits of setting up a system of identification were present. China's justice system has also been set up in appraiser court system.
Yu Xiao: these are not on the qualitative conclusion, judicial expertise is not qualitative. Forensic cannot judge whether this person drinking and driving or drunkenness, and can only tell you what alcohol is, qualitative judgment can only be made by a judge. In the course of judicial, technical and legal issues are two different aspects. Forensic officers to appear in court as an expert witness can only make very objective presentation to technical issues, such as a person's blood alcohol content is, but he can not determine what its legal nature.
B the audience: so can you help me to explain further, the previous law called "conclusions", now the law to "expert opinion", from a legislative perspective what is a consideration?
Yu Xiao: because the "opinion" contains an awareness of, and "conclusion" is one of the more technical judgment. As forensic officers make suggestions (conclusions) is a manifestation of respect for the work.
C the audience: I would like to ask the teacher a question, said the nine justices discussed in the dark room is a very important part, but it also mentioned a year into the nine judges discussed cases accounted for only 1%, it is 1% by his aides singled out. This process is in my opinion very opaque.
Ye Fan: Yes, you can say it is a place for improvement, of course, they are clearly not recognized.
Listener c: I want to say is, instead of the nine justices decided to for the future, rather than their aides.
Ye Fan: (laughter) this is obviously very difficult to give a definitive answer, but I can further explain specific implementation details. Lost people in the Court of appeal to apply for certiorari, the case to the Supreme Court. Nine judges each have four assistants, of which 32-bit reading Assistant is responsible for seven thousand or eight thousand applications annually, will mark that they think it's worth to try--aides for what case does have a lot of influence. It is worth mentioning that, Justice Alito's four assistants need to read all the cases again. This is a good thing, and is equivalent to two groups of people in check. Indeed, the Assistant in the selection of cases is simply too big, but under existing funds and personnel, perhaps this kind of arrangement can be to both fairness and efficiency.
C the audience: my concern was not fair and efficiency problems, but would like to, we can now read lots of stories translated into Chinese by the justices, but may actually aides the story more interesting. Is it possible to have such a book authored and translated ... ...
Ye Fan: I can tell you almost impossible (laughs). Such as Rehnquist in the 50 's when another judge Assistant, Roberts is Rehnquist as the assistant judges, they were three generations of tradition. However, when he is writing a book from his assistant's time over 40 years. Assistant leaked very taboo of the Supreme Court case, as far as I know, almost no leak without the owner's authorization of the example. If Assistant dare without permitting, to reveal the boss, the people didn't want to go into the administration of Justice and lakes. United States law no law firm would hire him. I also want to know the story of aides, my biggest dream was to live in there.
Cao Mianzhi: leaves the teacher speaks very well, let me give you an interesting example. The pledge: Barack Obama and Supreme Court Jeffrey Toobin, the author of the first book of the opening statements (Opening Arguments, the Chinese version translated by Cao Mianzhi, Shanghai: Sanlian Bookstore in January 2016), that book was his at the United States Office of the independent counsel when doing the Assistant wrote, he took notes and diaries recording the Office something in the process. Later in New York after the Assistant Prosecutor, Tubin's book was published, then he'll eat your case, was his then-boss, laolunsi·woershi prosecution he leaked important information. This matter became a public event, shortly after the end of the case, Tubin chose to do the media. It should be said that claims of confidentiality on the one hand the process of this work is based on the work of the Office of the independent counsel consider cheap, on the other hand, this may also reflect their legal person within the community is a close contact, a kind of mutual trust.
Ye Fan: also there is money in it. If you are a judge's Assistant, seventy thousand or eighty thousand dollars a year salary, but to work in law, signing on fees alone have as much as $ 300,000. Who will ruin your prospects?
United States the current nine justices of the Supreme Court.
Cao Mianzhi: so, precisely what we think of the rule of law, its legal team, unwritten rule, or within the rules of the game often appears to be so strong, so tough.
D the audience: usually when watching TV, I from the perspective of non-professional, including the example you just by, judges are from a different perspective, the thing itself, lawyers in the case when there is subjectivity in the interpretation of a thing. Some things, in one case is legal, in other cases it is not legal. When the lawyer on behalf of a party to file a lawsuit, have positions, representative of him to make sure he was the last win.
Ye Fan: it's inevitable. In the case law of the State, each case is control, but no two cases are exactly alike. So each defence counsel for guests to avoid the most serious charges and punishment.
Yu Xiao: litigation is of course the customer give you the money you are talking to him. This sounds strange, but this is our lawyers as professionals must abide by the rules. In the United States, between lawyer and client is very, very strong legal protection, apart from the requirements of Justice, lawyers must be customer information strictly confidential. Is a lawyer explain the facts to their own way of working. I could talk about how lawyers work, help you understand. For example, a large company has come to me, as a lawyer, I would say, well, you describe your situation, I usually take notes, but this note is of no use. I would say that you make a copy of all your evidence to me. Make sure you give me all of the material is real, I'm not going to review it for authenticity. After you give me the material, you tell me your request, that is, claims. I can trial out the files according to your requirements, which are good for your request, which is bad. For negative points I would like to go to the screening, which is fatal, which is not life-threatening. The classification of these materials, to consider the question of legal provisions favourable or unfavourable. For lawyers in China, there's a very good thing, China is statutory law, all laws, whether administrative regulations, departmental rules, or legal provisions are expressly provided for, you can view and associated Word to Word with your evidence. Are much more complex but common law precedents, any difference between the two cases is very important for the lawyers. Their lawyers than our workload is much greater.
Cao Mianzhi: you just of problem involved we today discussion of is core of a points, Yu teacher proposed of is lawyer perspective, is as one representative party party of legal people of perspective, if everyone push to extreme, may will think no what real of, and purely of Justice, a case on both sides of lawyer are is Thomas money for the people elimination disaster, seems whole of legal process are very relative of. In my opinion may not completely like that. Starting from the question today, and we've been ignoring a user-oriented, field in common law courts, the judicial process has a very strong antagonism. Each a we now as principle view of problem, we a species degree Shang are in in a should how sentenced, and should how lane of thought in deduction some we eye in the of "principles", but if we to United States of method College learning, we in judicial of site to operation, we can see, for summoned of witnesses, and party, both lawyer will expand very fierce, and near penny-pinching of asked, completed again and again to retreat defense, and in many national of litigation system in the, Function of such a confrontation is very important. Such as the United States stressed that in criminal proceedings the prosecution and defence of the principle of equality of arms was transplanted to the criminal procedure law in many countries. In such a confrontational court may think this interpretation does not have real value, is a really important skill logos, so-called artificial reason, bred by such law school training technology is the guarantee of survival in such a fierce attack and defense. Many people are fighting but not broken, in this French-made woven out of the world, of course, we will seek to maximize their interests. To return to this, Justice might not be entirely relative, at least in the legal discourse of the knitting world to find a place, and the result is through the intense resistance on both sides to reveal, this provides an acceptable result for both sides. Not just this problem, other issues including question time today, if supplementary on the face, maybe we will get a more comprehensive picture.
D the audience: scads of North America before there is a legalization of gay issues, while fine-tuning but for the enormous social impact, how do you see the problem?
Ye Fan: you know, this is the decisive fifth vote from Justice Kennedy, as he pushes for a contribution for 20 years. His first case law is the Romer v. Evans's case, 90 a case in Colorado, then the 2003 case Lawrence v Texas. Texas, then 2013 Windsor case United States v. Windsor, legalization of gay marriage is in the 20 years through these few cases gradually set up, instead of overnight change.
Audience e: Lord Snowdon, there are two schools of thought: some people think he is a hero to protect individual privacy rights, and some thought he was a traitor, United States on the law and what is the problem? The second is the question of same-sex marriage, it was suggested that United States Supreme Court's decision is beyond the power of this outside the scope of, marriage is limited to specific or can also be of the same sex should be the legislative power. Is that what this is? United States fuzzy boundaries how to distinguish between legislative and judicial?
Ye Fan: I answer the first question first. Snow problems are related to the United States national security problems. I am sure you know, United States national security agency listening at any time every minute and every second of all conversation, it is almost for sure. So why no one really to suit this thing? This is mainly a standing (standing). Anglo-American constitutional prohibition laws in a proposed decision. Litigation is adversarial, the plaintiff must have standing, plaintiffs must prove that their privacy rights were violated, but no one can prove that the United States national security agency wiretapping my phone this second, no one can prove that they were national security agency violated privacy rights. Visited cliff side villages of Gansu province
Yu Xiao: same-sex marriage before has conducted a seminar on this issue, I wish to talk about two things: 1th was last after the end of some of my thinking. The verdict people all over the world are concerned about, but in the United States, this decision is certainly not the point of conclusion and end points. Because even if the Supreme Court made a decision, but the delicate relationship between federal and State still exists. On behalf of the Federal Supreme Court's decision to the State level can perform to what extent is questionable. Therefore, the issue of same-sex marriage is like abortion or gun problems, will be a long period of United States constitutional problems.
Ye Fan: I think litigation is sure to arise, such as a Baker said I had strong religious beliefs, I refuse to give a same-sex couple baking wedding cakes. That is, the Supreme Court ruled same-sex marriage rights and the Supreme Court has upheld the right to freedom of religion when the collision, both of who is more important it's hard to tell. Just like the teacher said, you might want to wait until next year to continue to address.
F the audience: If we can predict that one day the Supreme Court will sentence someone and marry your iPhone case. (Laughs)
Ye Fan: I think not, because no such cases before. I support same-sex marriage, not because I'm in the United States need to be politically correct to say so. Because I know something about law, I know that customary law had come this far has been unstoppable. In order to achieve this, Kennedy and Ginsburg made a lot of efforts in customary law. Each are very clear when a judge ruled the case will have any effect. In 2003 Lawrence v Texas case mentioned, legislation of morality cannot be used as standard. But it cannot be denied is that all the legal, moral and historical background on the inside. In the Virginia Military Institute case refuse to admit female students, in order to prohibit this, Justice Ginsburg said, tradition not as a legislative tool. So that two cases later paved the way for same-sex marriage case, but in both cases the far-reaching effects of legal logic in not all of us here can be seen. Customary law in the history of the effect is too strong, now the United States remains at 17, the 18th century even the United Kingdom during the reign of judgement as jurisprudence.
H the audience: teachers talk about the Clark case, minor children can witness problems, I think actually, in real life there are many cases of violations of the rights of minors. Watched the movie two years before Denmark movie of the Hunts, which impressed me is child no matter how large can, for some particular purpose or fantasy lies. In this case, adults without a third party present, in China and the Court this is how to do it?
Ye Fan: will Clark for the case itself, you're right, the three-year-old children may unwittingly "lying". This is Professor in court to the judge said: I do not believe that this three-year-olds testimony cannot be considered as evidence, but there is no confirmation, is what children say, this is a very dangerous thing. But was ultimately sentenced Clark to abuse, and stated that if more kids or new situations in the future, we leave out later. Judges of the Supreme Court is seen more macro questions, substantial problems rather than to a specific case.
Yu Xiao: that is, they are not people, but to share. Analysis of minors as a matter of law, we have the protection of Minors Act, children who lack capacity, so China is not as a witness. China's laws for a specific age group of children is, if a child says something, is used as one of many evidences of. Taking into account the formation of other evidence evidence chain, if there are no other flaws can be convicted if you have other questions, free letter of evidence of discretion, this is a complex legal process. As a concrete problem, children in China and the United States were not allowed to testify.
Supporters of same-sex marriage in the United States before the Supreme Court March.
Ye Fan: Ohio law is a child of ten years old before he could testify, and this case is a teacher in children and what she said, allows the use of the story of the great court.
G the audience: I would like to ask a question, you as an advanced amateur, how did you get these United States legal knowledge and information?
Ye Fan: first of all, there is a well on the United States Supreme Court website, www.SCOTUSBlog.com judgement of each case, and the contents are written on it, such as social commentary, and background will be fully provided. On one hand, I as a lay person to read professional reviews to prove his point is good, but I find most useful is the judge's decision, his diction is really nothing to say, clear and beautiful. In particular, Roberts and Kennedy, whose writing makes me feel beautiful wording transcends race and language. This year, I wrote a blog about trademark law, no more lay people than this boring and confusing, and I is the reading of the judgement of Justice will figure it out. Rehnquist and Roberts said, writing judgments is positioned, well educated intelligent amateurs were able to read. This is my position. (Laughs)
H the audience: I now wish to question it. I also think that judgement is the most crucial, because, after all, was written by the judge in person. But at the same time I think the indictment and the trial Chamber debates are also very exciting and important. I would like to ask the three teachers, when you look at a case, whether to grant the indictment, court debates and judgments in the same attention? Because its contents are many and repeated a lot in itself, so how do you allocate your energy?
Ye Fan: first look at the results of judgment, and content from Western debates, possible indictment: I look at least, because the indictment is very professional and hard to understand.
Yu Xiao: I need to do some research in schools, I see most are brief. Because in the course of doing research for their legal technology is not very much, I did lawyers in China, so United States professional skill does not matter to me. I mainly look at how he uses the legal logic to draw conclusions. In the course of the whole thing, is not a precedent but rather caused many precedents. As a researcher, he needs more cases, and studies of the whole process.
Listener h: so how do you pick out the parts that need it?
Yu Xiao: one is that you can find around the case of a question, will have a variety of software that can help you search, and you want to find problems in the file where it can be clearly marked for you, so the problem is not particularly worried.
Ye Fan: before saying there is no software manual search really is a physical work.
Cao Mianzhi: just thinking of a particular problem, as scholars in different fields, we are with the files they wish to see. Leaf is more concerned about United States law practice this problem is how to expand, so he'll mainly see the judgment and restored the Tribunal process through debates, and edge of the indictments, and related files into a more supplementary materials. If you want to do more research I do, so my observation was mainly focused on United States law legal reasoning methods. On issues related to how you organize these legal documents, we went to the United States the major legal journals such as Law Review, we can find, mature academic achievement is a problem to make a problem, forming a chain of problems, generations of people on different aspects of the problem are deep and rich. When you approach a problem in a person, he is usually chasing the previous question to do. Us as exotic when the Viewer to pay attention to a problem, it is based on their time, to systematically comb the West both of these problems, so as to make their own judgments. This may be in academic research and legal search, distinguishes the different perspectives. Of course, there is another observation of United States law perspective, is the perspective of artistic creation. We know that the United States Supreme Court blog, seems to have the trial record, they take every word of the text match and hearing the recording step, just like Kara OK.
Ye Fan: Yes, I often while running while listening to, time and time again to go to. Know to make a speech this time, I put the Clark case four or five times, dialogue is very interesting, you can't even imagine they are talking about a matter of life and death, sounds as if it is high above the abstract legal question. Dershowitz's last appeal in a death penalty case, Scalia said to him, if this man had a gun and throw them out the window to what will happen. Clearly this matter of life and death, it sounds like two professors in academic exchanges. So Dershowitz says I can't do it justice, so animosities. (Laughs)
Yu Xiao: explanation of a technical problem. I have done some international arbitration in a foreign country, an international arbitration takes a relatively high cost about 7,000 yuan for two hours, I do have two or three people to sit in the records court records. They have a recording device and headphones while recording, keystroke a person, another person selected letter combination. Their limited number of keyboard, each represents a few letters, so very quickly, each recording can be knocked out of synchronization. Each section has a section, the section can match words, so in the end things are very matching. They will record every little detail, so as I, whose native language is Chinese, may be some errors when they speak English, looking over your shoulder when it's embarrassing.
H the audience: I ask the teacher, your personal view, the United States of the four liberal justices, which is the most radical, which is relatively conservative?
Ye Fan: Kennedy is the Middle, now most certainly is in the Liberal Sotomayor and Ruth Bader Ginsburg, Breyer and Kagan are middle, the most conservative of conservatives Thomas and Scalia, Alito and moderate a little bit. But I also think it is not fair to describe a spectrum, in the combination of different criminal proceedings are not the same, at least we don't care about this issue, I think is always 5:4. 2013-2014-two-thirds of the Supreme Court case is 9:0,.
The audience I: I would like to ask a question of entry level, since the judge is for life, he served longer, his successor, is also his assistant, legal direction control for a long time with nine justices, and less bound by the, so how do you ensure the institution reasonable long-term running?
Ye Fan: this is a very good question, United States founding fathers was set up when justices life tenure in order to prevent them from being subjected to political influence. But when everybody's average life expectancy is only 50 years old, so long now. United States there are many calls for reform, such as limits on each judges for a period of 18 years, this constitutional amendment, I personally think that is unlikely. I think judges ' background diversity, now among the nine justices, 6 Harvard 3, Yale, New York City out of the 4, the entire East out of the 7, other than Kagan, all judges of the appeal judges. Famous 1954 Brown v Board of education case, the Supreme Court, Warren is the former Governor of California, Blake was a Senator, Jackson used to be the Minister of Justice, Douglas was previously United States Chairman of the SFC, these people have very different life experiences, this diversity, I believe that the Court is very good. A few days ago to see a photo of the card prior to being sworn in, in my Twitter also quipped: "Kagan and Roberts senior before being sworn in and Obama cordial conversation."
The audience I: the increasingly close ties between the nine people, are you a judgment before the idea with each other with a degree of certainty, so long into a game with each other.
Ye Fan: I believe they are with each other, they get more and more familiar with each other's position. But there are some legal issues are too complex, and we can't think of a better common solutions. Of course this is my guess, their Assistant will not tell me, where are they, after all, 300,000 of the signing bonus. (Laughs)
J the audience: teacher, I've seen you write on Twitter Chinese immigrants in Chen's case, and interested in, is, is on trial in the Supreme Court when the case, result in publicity Chen could not be found, because beyond the public notice period, the judges refused to accept the case. My question is, why now that Chen has filed a lawsuit, but will be missing? And the Supreme Court is likely to accept cases beyond publicity right?
Ye Fan: very good question. The first issue, Chen was written by his lawsuit, did not hire the judges, he was obviously copied from elsewhere, even the format is wrong. Write like this lawsuit to the Supreme Court the possibility of less than 1 per thousand. He may have felt the case there, because it is the 2000-dollar House he bought was demolished. As to why my hopes will know how the Supreme Court accepted the case, because when he surpassed the public wished to continue litigation, he invited the United States jurisprudence top litigators baoluo·kelaimen (Paul Clement), so I hold out the hope that Clementine wrote him a letter. Clemencia is the former Assistant to the judge of Justice Scalia, I personally think that maybe a shot, but finally decided not to accept that I have no idea.
H the audience: the last thing I wanted to ask a question of gossip, bin he wrote a lot about United States Supreme Court, because of his record case is a lot on the maintenance of the rights of the individual, so I could appreciate him. I read a few months before snow's book written in the nowhere mentioned, Tubin called snow "a traitor", so I was disappointed. Written in Tubin my little book, so what kind of man I am good qitubin is, what do people think of the judiciary of his?
Cao Mianzhi: thank you for the interesting question. Snowdon is the eye of the media storm center at the time. After the Snowdon comes, Lord Snowdon was not a hero issue created a huge controversy, United States public media and the media almost a stand-like, which is divided into separate factions. Tubin was clear snow, not a hero, he's a coward, Tubin's basic theory is similar to "civil disobedience". I'm George tubin's announcement was not unexpected, in Tubin's works of a book on his own experiences growing up in the opening statements, he has described his upbringing, he was a liberal family of children, grew up in a liberal environment. When he was young, United States history, a very important thing, which is known as "Watergate", Nixon eventually sadly left. Nixon was a demon in the eyes of Liberals at the time, small Tubin memories of this thing is they break out the champagne, they were happy to celebrate this freedom in the eyes of the bad guy finally hung up. They left for them, a person in the course of defending their moral rights, if accidentally broke the injustice of the laws in force, he should accept the consequences of the offence would give him, and thereby to advance in line with constitutional principles of legislative amendments. He feels that Snowe now that have done such a thing, he should stay in the United States accept the United States sanctions, leading to reflection on the media and the public to promote issues related to improving, so he is a hero; he runs to the United States to seek asylum in rival countries, he is a coward. In fact, there was a lot of criticism of his article, make a tit-for-tat criticism to this logic, he also touches on parts of the politically correct liberal media obsessed, but that's another topic.
Yu Xiao: I said good, United States Liberals and Conservatives are actually more liberal for us. George tubin is a very liberal person, his view on this issue is to follow the conduct of a legal person's heart. But we Chinese people stand outside and watch the natives regarded this matter with them wider.
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