Showing posts with label Commerce Clause. Show all posts
Showing posts with label Commerce Clause. Show all posts

Tuesday, March 2, 2021

Covid-era eviction elicits ancient injunction plea

Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.
Image from Amable Tastu, La Normandie Historique (1858).
We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.

Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control.  Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.

A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post.  A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro."  The Post explained:

To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.

Jersey
(image of ESA Copernicus Sentinel-2 CC BY-SA 3.0 IGO)
Jersey is a fascinating study in comparative law.  One might expect the island to be legally indistinguishable from the UK, but that is not the case at all.  Jersey has its own parliament and legal system.  Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.

Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same.  The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."

Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro.  According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."

Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the immediacy of its effect, although in modern times an additional perceived benefit is the publicity it can draw to your cause."

Tuesday, March 31, 2020

COVID-19 stresses United States on domestic borders; war analog might foster state solidarity upon federal power

Rhode Island Governor Gina Raimondo was recently
threatened with a lawsuit by New York Governor Andrew
Cuomo.  U.S. Air National Guard Photo
by Master Sgt Janeen Miller (2016).
I have just published at the new blog, Law Against Pandemic. Here is the abstract:

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems.  The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival.  That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions.

As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States.  The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.


Read more at the new blog, Law Against Pandemic