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Law and Justice

Explain what is meant by justice

Consider how far the courts achieve justice when attempting to balance the conflicting interests of the parties involved in civil / criminal cases

Every person has an idea of what justice is, but because of the diversity of society, justice means different things to different people, and so it is not easy to define. Many will agree that justice should ensure the fair treating of those who have done wrong and for those who have suffered a loss. However, as the two usually conflict, it is the aim of the law to ensure a balance has been struck between the two. Already, this serves to limit the ‘justice’ the law can give, as it has to keep conflicting sides happy, without upsetting the other.

        As justice is such a complex area that spans back many years, there are many theories on what justice is and how it should be reached. Formal justice is based on Aristotle’s idea of distributive justice - that fair decisions, goods and services are distributed equally and therefore people have the same access to justice. If this was the case, it could possibly be easier to achieve concrete justice, which means all people receiving the same punishment for the offence committed. Concrete justice can be seen as a means of keeping the ‘stare decisis’ rule of standing by previous decisions, so as to keep fairness and consistency in law. However, taking the example of murder, this can be considered to be unfair. In the recent cases concerning ‘mothers who kill’, which as been described as a ‘modern day witch hunt’, all convicted must receive the mandatory life sentence, which the judge reluctantly gave to Angela Cannings. This “witch hunt” has also seen the reversal of the burden of proof, and evidence given by only one witness. ‘Meadow’s Law’ was unjust and had no bearing with scientific evidence but it was relied on by the law. This led to undeserved suffering, as justice was not reached. Concrete justice also means there is no room to consider the motives or background to the offence and so injustice is easily reached.

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Another theory is that of John Rawls’ and his idea is based around an imaginary society. This means that as there is no knowledge of people’s gender, religion, age or social class, no pre-conceptions will exist. Rawls believes that this ignorance is the only way to reach fair decisions and for justice to be served. Michael Allen also suggests this, as in ‘Criminal Law’ he states that   it is all too easy for judges or juries to ‘lose sight of the wider role of criminal law’ when they want to see ‘undesirable characters locked behind bars’. In essence, this means everyone be treated in the same way. However, his theory had been heavily criticised, the obvious criticism being that justice is being reached through an artificial society which will never have any basis in reality. Dworkins has pointed out that people will not always live by the principals they do in an imaginary society-people will improve their situations if the chance arises. Humans are not as perfect as Rawls’ theory implies.

Rawls’ idea of a classless society holds some similarities with the Marxist theory. Marx believed that a capitalist society could never be a just one, that only through a classless society, where all are equal, would justice be reached. However, as the collapse of the Soviet Union proved, the fundamentals of communism cannot work as ultimately, a class system will operate as there will always be people with power over society.  

        The English legal system as it stands derives from Aristotle’s theories of distributive and corrective justice, the aims of which can be seen through the differences of criminal and civil law. They both attempt to promote justice, but as they stand for two sides of argument, it can be noted that they can cancel each other out and achieve justice for nobody. This can be seen through the case of Tony Martin, where the boundaries between victim and wrongdoer were so blurred that whether justice was done for either remains debated. It could be argued that there is no justice for homeowners to defend their property but does this give them the right to kill somebody? The main distinction between these is that criminal law aims to punish the wrongdoer whereas civil law aims to compensate the victim, similar to the theory of corrective justice. Liability in both, however, is based on fault. In criminal law defences are provided, for example voluntary manslaughter for murder. Legislation for both areas is always democratically elected, and this can once again reinforce the message that justice cannot be reached if the same group of people are voting policies for and against conflicting parties. This can be seen through the Access to Justice Act 1999, which provides legal funding advice and representation in both civil and criminal matters. The state is providing the civil help through the Legal Services Commission and criminal assistance through the Criminal Defence Service. This may seem odd, as ‘Access to Justice’ seems to imply that there will be more a stance towards one side than the other, as this may be the only way justice can be reached. Lord Justice Darling once stated that ‘the law courts of England are open to all men like the doors of the Ritz hotel’. This means that only as long as people have the money will they be treated equally. The Access to Justice Act is an example of this, as if you are on a modest income, the law will not provide for you. This means only the wealthy or very poor will be catered for in this Act and so detracts from the promotion of justice of courts and juries being open to all. The alternatives to this Act do not appear to give a high quality of legal help; the Citizens Advice Bureau cannot give specific legal advice and even though ‘Accident Helplines’ provide help on a ‘no win no fee’ basis, a successful claim could see 25% of the damages awarded going to the lawyer. More recently, there has been the introduction of the controversial Criminal Justice Act 2003, which John Wadham has described as ‘a shameful attack on justice’, perhaps  because the whole aim of the Act is to ‘strike the right balance between justice for victims and the rights of those on trial’, as stated by David Blunkett. Although the scrapping of the double jeopardy rule and the revealing of a defendant’s relevant previous convictions are amongst aspects hoping to assist victims of crime, the idea of reducing the rights of the defendant to benefit the victim had been described as ‘fundamentally flawed’ as it does not address the issue of improving justice. It can also be said that by revealing previous convictions of the defendant is taking away the justice they need, especially as it may undermine the ‘innocent until proven guilty’ clause. Even the supposedly stable promotion of justice of judges being independent and free from political bias seems to be disappearing as the Crime (Sentences) Act 1997 gives minimum sentences in certain circumstances. Such legislation limits judges’ freedom. It can be argued that judges being in charge of sentencing can lead to inconsistent punishments, but the doctrine of judicial precedent often ensures that decisions are fair and in keeping with previous cases. This does not mean that unjust decisions are never reached, as seen with the cot death cases discussed earlier. There have also been unwarranted decisions concerning domestic violence issues. Provocation rules that there must be ‘a sudden and temporary loss of self control’, so this may not include women who have suffered from domestic abuse for years. However, ‘Battered Woman’s Syndrome’ is recognised by the law, and the introduction of the domestic Violence Bill also aims to reach justice in such situations.

        Courts often do not achieve justice and despite the introductions of Acts such as the Access to Justice Act 1999 and Criminal Justice Act 2003, it is unlikely justice will ever be reached through the courts. This is not so much because of the conflicting interests of civil and criminal parties, but perhaps because the law is meant to be a fair adjudicator and whatever it’s decisions, someone will inevitably lose out.

Document Details

• Word Count 1399
• Page Count 2
• Level AS and A Level
• Subject Law

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Justice and the law

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Exploring perspectives on the concept of justice and its application in the English legal system

• Volume 17, 2021/ 2022
• Nature of law
• Law and justice

Hannah Eldridge

This article is relevant to AQA Papers 1 and 3 and OCR Component 3.

What is justice? It is a difficult concept to define as people have different perspectives on what constitutes justice. The interpretation of the term therefore depends on a value judgment. While one of the fundamental principles of law is that justice should be achieved, whether it has or not comes down to individual opinion.

A simple interpretation of the word justice is ‘fairness’. The law should be fair in how it treats all members of society in a democracy. It should apply equally to everyone, irrespective of their status or wealth.

There are many theories and perspectives on justice. The philosopher Chaïm Perelman stated that justice requires ‘the equal treatment of beings who are essentially alike’. In common with other theorists, he saw equality as being at the heart of justice, but that did not necessarily mean that justice required all people to be treated in the same way.

Theories of justice

Natural law theory

Natural law theorists believe that the rules of right and wrong are inherent in people and are not created by societal norms or judges. The Greek philosopher Aristotle argued that a just state will distribute its wealth on the basis of merit, giving to each according to their virtue and their contribution to society. He believed that the people who are the worthiest or most deserving should receive the greatest share of resources. He thought that it would be unfair to allocate resources on the basis of people’s needs, as it would reward the lazy as much as the hard-working.

You could consider how this would apply in today’s society with a welfare state that pays for healthcare and care for the elderly, as well as legal aid for those on low incomes.

Positivist theory

Positivist theory is a view that law is a social construction and that rules or laws are valid because they are enacted by legitimate authority and are accepted by society. Thomas Hobbes argued that ‘it is improbable for any statute to be unjust.’ Statutes (Acts of Parliament) are democratic because they are made by an elected parliament and can be seen as just because the law is made by a sovereign body and goes through many checks and debates before being enacted.

However, many statutes are outdated, for example the Offences Against the Person Act 1861. When the law was written, bodily harm was understood to mean physical harm, but the law now recognises that it can include psychiatric harm. Judges have interpreted the law to fit with contemporary conditions in modern society but it could be argued that outdated laws should be amended by Parliament rather than leaving judges to make sense of them.

Another criticism of positivist theory is that unjust laws are considered valid simply because they have been made according to the established legislative process, regardless of their content. This was an issue raised in the famous Hart-Fuller debate over the validity of unjust Nazi laws. Fuller took a natural law perspective, whereas Hart argued a positivist viewpoint on the issue.

Utilitarian theory

Jeremy Bentham developed a theory of utilitarianism according to which the more an action increases overall happiness, the more valuable it is. This theory sees maximising happiness in society as the main objective when trying to achieve justice. However, this theory could be seen as unjust if the overall happiness of society takes priority over that of the individual.

Procedural justice

In any legal system, there are two important forms of justice: procedural and substantive justice. Procedural justice (sometimes referred to as formal justice) means that procedures and systems are put in place to ensure that justice is achieved. There should be a legal framework in place so that all members of society are equal before the law. If these procedures are in place and are used effectively then there is said to be procedural justice. In the UK, there are many legal institutions, such as the police, courts, judiciary, juries and appeals systems, that provide a structure in which justice can be achieved.

Procedural justice can also be seen in rules securing the right to a fair trial and the rule relating to trial by jury. At the heart of the criminal trial is the presumption of innocence, which acts to protect defendants and places the burden on the prosecution to establish the case beyond reasonable doubt. Juries are randomly selected members of the public who, to ensure a fair trial, have no link to or personal knowledge of anyone involved in the case.

However, there are criticisms of the jury system, such as the fact that a jury may be influenced by media pressure and make perverse decisions that go against the law. If a jury reaches a verdict based on bias, then justice has not been achieved.

Procedural injustice and Stephen Lawrence

In 1993, Stephen Lawrence was stabbed to death in a racially motivated attack in London. The subsequent police investigation led to an inquiry and the McPherson Report being published. In this report, it was found that the family of Stephen Lawrence did not achieve justice due to police failures during the investigation. It was not until 2012 that two of the five suspects were convicted of murder. The report was critical of how the Metropolitan Police investigated the murder, stating that they were ‘institutionally racist’.

Substantive justice

Substantive justice refers to the fairness of the law itself and its outcomes, rather than the processes and systems that surround it. You could look at any area of law (contract law, tort law, criminal law or human rights) and explore whether a specific law achieves substantive justice.

Criminal law

In criminal law, it could be argued that strict liability offences do not achieve justice (see pp. 16–17). A strict liability offence is one where the defendant can be found guilty if they commit the actus reus of the offence without proof of mens rea. Examples include many road traffic offences such as speeding, the sale of cigarettes and alcohol to minors, and pollution offences. The danger with such offences is that the defendant could be liable even when they are not at fault, as seen in the case of Harrow London Borough Council v Shah (1999) where a lottery ticket was sold to someone who looked 16 but was underaged.

Criminal law provides defendants with a range of possible defences. It recognises the fact that a person may not always be at fault. The Coroners and Justice Act 2009 created a defence of loss of control for the crime of murder. This is a partial defence which, if successful, reduces murder to manslaughter. The defence recognises that a defendant may have been so angry and distressed that their actions resulted in murder. While the defendant may not be fully to blame, is it morally right and just that we allow a defence to someone who cannot exercise self-control? It could be seen to reduce the seriousness of a killing and therefore create injustice for the victim’s family.

Law of tort

In the law of tort, Rylands v Fletcher (1868) has been considered a strict liability tort, meaning that the defendant is liable even if they did not know the danger. This can be seen as unfair on a defendant who is taking all reasonable care to prevent a danger. However, the result of Cambridge Water v Eastern Counties Leather (1992) means that defendants will only be liable where the damage is reasonably foreseeable. The potential unfairness to the defendant is further reduced by the availability of defences, such as an act of God.

Distributive justice

Many theorists have written about the concept of distributive justice, which means that the law should provide justice for all. In other words, justice should be distributed equally, regardless of class, age, gender and race.

Karl Marx believed that in a capitalist society, all laws are unjust. He argued that the law was used to protect and benefit the ruling class rather than the interest of all people in society. Marx believed that justice could be achieved with the redistribution of wealth from the rich (the bourgeoisie) to the working class (the proletariat). There are many examples that support Marx’s theory that law perpetuates inequality. One example is access to justice and legal representation. The wealthy in society are able to pay for the fees of a more senior and experienced lawyer (solicitor or barrister) to advise and represent them.

However, in order to achieve justice, there should be ‘equality of arms’ within the law, meaning that parties should be on an equal footing. It is difficult to see how this could occur in a case where an individual is involved with larger organisations or businesses. A claimant suing for negligence is unlikely to be able to afford the same level of legal counsel as a large corporation. Therefore, the parties are not on an equal footing from the start. An example of this imbalance can be seen in the ‘McLibel’ case ( Steel and Morris v UK, 2001).

Justice can be achieved by the duty solicitor scheme in England and Wales, which allows anyone who is arrested to have access to a solicitor at the police station for free. This ensures that a suspect has legal advice before and during police questioning. This right has been reduced in recent years, as many duty solicitors provide advice over the telephone as opposed to in person.

Distributive justice is often not achieved for people from minority ethnic backgrounds. This is supported by data on stop-and-search powers, which show that a person is nine times more likely to be stopped and searched if they are black. We have already discussed the killing of Stephen Lawrence and the failures in the murder investigation, but this highlights the fact that there is inequality and injustice in the criminal justice system. It could be argued that a predominantly white judiciary lacks the diversity needed to address the issue of racial inequality.

Corrective justice

Corrective justice focuses on the law providing a fair remedy. In criminal law, this is achieved through sentencing, whereas in civil law, this is achieved by paying the claimant damages or awarding some other remedy.

In criminal law, the most dangerous offenders receive a custodial sentence. If someone is convicted of murder, they must receive a life sentence in order to protect society. Life imprisonment sends out a deterrent message that murderers will face severe punishment, and it also provides justice to the victim’s family, who will know that the offender is being punished.

Corrective justice is undermined if the offender reoffends or does not serve a fair prison sentence. Current reoffending rates for those released from prison are high, which implies that an offender’s behaviour will not change if they do not serve a fair sentence. Prison is also expensive and on average costs the state £40,000 a year for an adult offender. The UK has one of the highest prison populations in Europe, which could mean that offenders are kept in prison for an unjust length of time.

When writing an essay on law and justice, you can use any examples of justice or injustice that you have studied during your course. There are many examples you can draw upon from the English legal system, as well as areas of criminal, tort, contract and human rights law. You will need to discuss the extent to which they achieve justice.

Discuss at least two theories and theorists. There is no need to discuss all of the theories of justice in great detail.

In civil law, the award of damages is a key remedy. The financial compensation is a recognition of the harm and injury the defendant has caused and is a form of corrective justice, as it provides a remedy to the claimant. This is problematic however, as there is no legal aid available for most claims in tort law, and claims for damages are generally brought using a ‘no win, no fee’ agreement. These agreements can be seen as unjust, as solicitors will take a percentage of any damages awarded and usually only take cases that they are likely to win, which is a disadvantage to those unable to pay for their own legal representation. Further injustice may be caused if a person is awarded damages by the court but the defendant has no funds to pay those damages.

Hannah Eldridge is an experienced senior examiner and has taught law in a sixth form college in Norfolk for 17 years.

There are different theories and perspectives on justice:

■ Substantive justice refers to the content of the law and its outcomes.

■ Procedural justice refers to the processes and systems that accompany the law and legal system.

■ Utilitarian theory measures justice in terms of whether something maximises the happiness of the greatest number of people.

■ Distributive justice considers whether benefits and rewards are distributed fairly across society.

■ Corrective justice is concerned with addressing unfairness e.g. through sentencing in criminal law or the award of a remedy in civil law.

PRACTICE EXAM QUESTIONS

English legal system and criminal law

Use these questions to help you prepare for AQA Paper 1

1 In criminal law, which one of the following elements is not part of the gross negligence manslaughter offence?

a Duty of care

b Breach of the duty of care

c The Church test for dangerous acts

d The risk-of-death objective test

2 In criminal law, which one of the following statements about attempts is false?

a A defendant’s belief that they are engaged in a criminal offence will not support liability for an attempt of an offence that is factually or legally impossible to commit.

b A defendant’s belief that they are engaged in a criminal offence will support liability for an attempt of an offence that is factually or legally impossible to commit.

c Attempting to commit an offence that is factually or legally impossible is recognised by s.1(2) and s.1(3) of the Criminal Attempts Act 1981.

d The case of R v Shivpuri (1986) illustrates the importance of belief for establishing an attempt to commit an offence that is factually or legally impossible under s.1(3) of the Criminal Attempts Act 1981.

3 In criminal law, which one of the following elements is not part of the actus reus of the offence of murder?

a The killing takes place under the king or queen’s peace.

b The victim is a ‘reasonable creature in being’.

c The killing is unlawful.

d The victim must die within a year and a day of the commission of the offence.

4 In criminal law, which of the following options is not an element of the partial defence to murder of loss of control?

a The qualifying triggers of fear of violence and/or things said and done.

b The defendant experiencing a total loss of self-control.

c The defendant experiencing a sudden and total loss of self-control.

d An objective test to see if ‘a person of the defendant’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of the defendant, might have reacted in the same or similar way to the defendant’.

5 In the criminal courts, which one of the following judges will not sit in the Crown Court to hear indictable cases?

a District judge

b Circuit judge

d High Court judge

Andrew Mitchell

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A Level Law: Law and Justice Essay // Law and Morality Essay

Subject: Law and legal studies

Age range: 16+

Resource type: Assessment and revision

Last updated

19 May 2019

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Law and Justice

• Created by: Teganwi
• Created on: 17-05-21 11:14

The meaning of Justice

Justice can be described as fairness and equality. The idea includes treating every case in a like manner, showing imaprtiality and acting in good faith. However, it has been mulled over over centries, this has lead to a range of theories to explain its meaning and application.

One of the earliest was Plato, a Greek philospher. He saw it as being harmony between the different sectors or classes in society. He regarded justice as an overarching vitrue of both individuals abd societies. This is reflected in Criminal and Civil law today

Plato's work was continued by Aristotle, who stressed the need fro proportionality and achieving the middle way. This can be seeen in the law's attempts to balance competing interests, such as individual's right to freedom of expression and protection of society from extreme views.

Thomas Aquinas continued to define justice in a similar way of Aristotle. Justice as governing our relationships with other people. The end result of justice is the common good, for both the individual and society.

After this theories of justice were rapidly developed, in this we will consider

• Distrubitive justice- fair allocation of the benefits and responsibilites
• Utilitarianism- maximising happiness is the objective of justice
• Social Justice- equal justice in all aspects of society

Theories of Justice

Distributive justice- there are several philosphers who have expanded this view

• Aristotle- he identified particular examples of justice, distributive being one of them. He argued that a just state will distribute its wealth on the basis of merit. Each is given due to their contribution to society. This is where the worthiest, rather than the neediest, recieve the greater share. To allocate resources based on people's needs would be unjust, as it would reward the lazy as much as the hard-working. 
• Thomas Aquinas- distributive justice concerns the fair allocation of goods and responsibilies. This is governed by the principle of due proportion. This means that people recieve in accordance to their merit, rank and need. Merit is based on that it would be wrong to pay workers an equal amount for unequal work. He based his doctrone on natural law.
• Karl Marx- founder of communism developed a different model of distributive justice. The slogan is 'ffrom each according to his ability, to each according to his need'. This encompasses two principles of communism;

1. each will maximise their contribution to the common wealth by making full use of their abilities,

2. and each will recieve according to their need, regardless of the personal contribution they have made.

Aristotle would have regarded this as unjust as it potentially gives the greatest rewards to the least contributive and thus least derserving.

• Chaim Perelman- he concluded that justice cannot be studied logically, as each attempt is based upon a person's subjective values. He discussed different understandings of justice

1. To each according to his merits- each person is treated how they deserve, the good are rewarded and the bad are deprived or punished. This…

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Your article on "Law and Justice" is a comprehensive and insightful exploration of the multifaceted concept of justice. You've done an excellent job of tracing the evolution of justice theories from Plato to modern thinkers like John Rawls and Robert Nozick. The article also delves into the practical aspects of justice, such as procedural, corrective, and substantive justice, providing a well-rounded view.

I particularly appreciate how you've highlighted the tension between different theories of justice—like distributive justice and utilitarianism—and their real-world applications. This adds a layer of complexity that is often missing in discussions about justice. Your examination of the limitations of legal aid and mandatory life sentences also adds nuance to the topic, illustrating that justice is not a one-size-fits-all concept but rather a dynamic interplay of various principles and practicalities.

One area that could be further explored is the role of technology in shaping modern justice systems. For instance, how do advancements in AI and data analytics impact procedural justice? Could they potentially make the system more impartial, or do they risk embedding existing biases? I do believe  Ai tools will play a key role in the future legal profession and also law in general.

Overall, your article is a thought-provoking read that encourages the reader to consider the complexities of justice in both theory and practice. Thank you for sharing such a well-researched and articulate piece. 

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Course information.

OCR  and AQA A Level Law are two-year courses designed to provide students with a comprehensive understanding of the English legal system and its application in society. 

Both curriculums aim to provide students with a solid understanding of the English legal system and its application in society. They cover similar areas of law, such as criminal law, tort law, and contract law. Both curriculums require students to develop their analytical, evaluative, and problem-solving skills through the study of case law, legislation, and legal commentary. Assessment is through exams at the end of the second year, which test students’ knowledge and understanding of the course content, as well as their ability to apply legal principles to hypothetical scenarios.

The Oxford, Cambridge and  A LEVEL qualification (OCR) 

The OCR A Level Law H418 specification covers a wide range of legal topics and aims to provide students with a deep understanding of the English legal system and its key areas of law. Here's a quick overview of the OCR A Level Law H418 specification which started to be taught in 2020 and was first assessed in the Summer of 2022:

Component 1A: The Legal System and Criminal Law

This component covers the following topics:

• Civil courts and other forms of dispute resolution
• Criminal courts and lay people
• Legal personnel
• Access to justice

Component 1B: Criminal Law

• Rules and theory
• General elements of criminal liability
• Fatal offences against the person
• Non-fatal offences against the person
• Offences against property
• Mental capacity defences
• General defences
• Preliminary offences
• Critical evaluation of:  non-fatal offences against the person defences: intoxication, self-defence and consent, ideas for reform

Component 2A: Law Making 

• Parliamentary law making
• Delegated legislation
• Statutory interpretation
• Judicial precedent

Component 2B:  Tort Law

• Liability in negligence
• Occupiers’ liability
• Torts connected to land
• Vicarious liability
• Critical evaluation of:  liability in negligence, occupiers’ liability, vicarious liability

Component 3A: The nature of law

• Introduction to the nature of law
• Law and morality
• Law and justice
• Law and society

Component 3B: Further Law

in this section students can choose between Contract Law and Human Rights law. However, schools and colleges  will often make this choice for students. 

Human Rights Law

• Protection of the individual’s human rights and freedoms in the UK
• Key provisions of the European Convention on Human Rights
• Human rights and English law
• Enforcement of human rights law
• Critical evaluation of human rights protection in the UK: Articles 5, 6, 8, 10 and 11 of the European Convention on Human Rights, the Human Rights Act 1998 , ideas for reform

Contract Law 

• Vitiating factors
• Critical evaluation of:  formation , contract terms , ideas for reform

The OCR A Level Law H418 specification is assessed through written exams each 2 hours long. 

All exams consist of a mixture of short answer questions and essay questions.

Overall, the OCR A Level Law H418 specification provides students with a thorough understanding of the English legal system and its key areas of law.

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Debunking 12 Myths About Trump’s Conviction

D epending on your perspective, the conviction of Donald Trump on 34 counts in a Manhattan courtroom was either a refreshing affirmation of the rule of law or a miscarriage of justice in a politically motivated prosecution. A jury returned a verdict finding that Trump had caused the falsification of checks, invoices, and ledgers to conceal the payment of $130,000 to adult film actress Stormy Daniels shortly before the 2016 presidential election, with intent to conceal the violation of campaign finance and tax laws.

We are all entitled to our own views of the case, of course, but opinion should also be based on facts. Certain myths are creeping into the conversation and distorting the truth about Trump’s conviction. And it’s worth examining some of these myths in order to dispel them.

Myth: No one knows what Trump was charged with.

Response: Trump was charged in a 15-page indictment, handed up by a grand jury, with 34 counts of violating New York Penal Law 175-10 in the first degree, which is a felony.  A violation in the first degree occurs when a person falsifies business records with an intent to defraud that includes an intent to commit, aid, or conceal another crime. In addition to the indictment, the Manhattan District Attorney filed a 13-page statement of facts detailing the allegations.

Myth: Prosecutors stretched the law to convert a misdemeanor into a felony.

Response: Under New York law , a simple falsification of business records without any intent to commit or conceal another crime is a violation of the statute in the second degree, punishable as a misdemeanor.

An intent to conceal another crime is an aggravating factor that brings enhanced penalties, such as a felony. This law containing degrees of severity was enacted by the New York legislature, and it is a common way of structuring laws with escalating penalties for more egregious violations. (For example, penalties for federal drug offenses range from misdemeanors for simple possession to lengthy terms of imprisonment for aggravating factors based on quantity or intent to distribute.) The grand jury found probable cause of 34 violations in the first degree, and the trial jury found proof of these crimes beyond a reasonable doubt.

Myth: The prosecution didn’t tell Trump what he was charged with until closing argument, a violation of due process.

Response: While the indictment specified each of the checks, invoices, and ledger entries alleged to have been falsified, it did not specify which crime Trump allegedly concealed.  A  defendant is entitled to fair notice of the crime with which he is charged so that he can effectively defend himself at trial, but New York law does not require this level of specificity in the charging document. New York case law requires that the indictment allege only a general intent to conceal a crime, not an intent to conceal a specific crime.

Nonetheless, prosecutors provided this specificity in a prosecution filing in November 2023 , five months before his trial began. In that filing, prosecutors disclosed that the crimes they alleged Trump intended to conceal were violating state and federal campaign finance laws and violating state tax laws. The court rejected an additional basis offered by the prosecution, falsifying business records outside the Trump organization.

Myth: It was improper for a state prosecutor to charge a federal offense.

Response: The parties litigated this issue months before the trial and the court found that statutes outside of the laws of New York were proper bases to be considered “other crimes.” For example, case law has held that an offense under the New York statute prohibiting possession of a concealed weapon by a person who has been “previously convicted of any crime” may be proved by showing that the person was convicted of a crime in another state.

New York courts have also upheld the use of federal offenses as the predicate crimes in other cases involving the falsification of business records in the first degree, the very crime charged in Trump’s case.

Myth: Trump would not have been charged for a mere bookkeeping error if his name were anything other than Donald J. Trump.

Response: The Manhattan DA’s office has filed charges for falsification of business records 9,794 times since 2015. When announcing the charges, Bragg emphasized the importance of the integrity of business records in Manhattan, the “home to the country’s most significant business market.” He explained: “We cannot allow New York businesses to manipulate their records to cover up criminal conduct.” At the time of Trump’ s indictment, Bragg, had already filed 120 cases alleging violations of 175-10, all of them in the first degree based on the concealment or commission of another crime.

Myth: There is nothing illegal about paying hush money, and famous people do it all the time.

Response: Paying hush money itself is not a crime, but it is a crime to falsify business records. And it is a more serious crime to falsify business records with, as in this case, intent to conceal other crimes. These include violations of campaign finance laws, by accepting donations over the legal limit, and violations of tax laws, by inaccurately characterizing the payments as income.

Myth: The charges were filed after lengthy delay to interfere with Trump’s campaign for president.

Response: While prosecutors have discretion as to whether and when charges should be filed, there is no evidence that this case was brought to interfere with an election. In fact, the trial court found that the reason for the delay in bringing charges was partly Trump’s own doing.

In 2018, the case was being investigated by the U.S. Attorney’s Office for the Southern District of New York, which convicted Trump’s lawyer, Michael Cohen, for the same conduct, and referred to Trump in the charging document as “ Individual-1 .” For reasons unknown, federal prosecutors during the Trump Administration did not bring charges against Trump. Once federal prosecutors closed their investigation, Bragg’s predecessor, Cyrus Vance, Jr., started this investigation, but was delayed by Trump’s prolonged challenges to grand jury subpoenas for his financial records, taking his objections all the way to the U.S. Supreme Court .

When Vance retired and Bragg was elected, Bragg insisted on reviewing the evidence before deciding whether to continue with the case. Ultimately, he decided to go forward. All of these factors contributed to the delay.

Myth: Justice Juan Merchan was biased because of his $35 financial contribution to Joe Biden and because of his daughter’s work as a democratic political consultant.

Response: Justice Merchan sought an opinion from the New York Advisory Committee on Judicial Ethics , regarding both of these issues, and received an opinion that he need not recuse himself from the case. The finding of Trump’s guilt was made by a jury that Trump’s lawyers helped select.

Myth: Juan Merchan is a judge on the New York County Supreme Court.

Response: Merchan’s correct title is “justice,” even though he presides in one of New York’s trial courts, which are called the Supreme Court of each county. The state’s highest court is called, oddly enough, the New York Court of Appeals.

Myth: Justice Juan Merchan violated Trump’s rights to defend himself by refusing to permit him to call an expert witness.

Response: In Trump’s defense, he wanted to call Brad Smith, a former member of the Federal Election Commission, as an expert witness on federal election law. Expert witnesses are permitted to testify in trials to assist the jury in understanding facts about matters beyond ordinary understanding. Matters of law, in contrast, are for the judge to provide.

Justice Merchan did not prohibit Smith from testifying, but when he ruled that he could testify only about facts, and not law , Trump’s team decided not to call him as a witness. Contrary to this myth, Justice Merchan would have erred if he had permitted Trump to call an expert witness to testify about the law.

Myth: Justice Merchan violated Trump’s First Amendment rights to free speech and to testify in his own defense by imposing a gag order in the case.

Response: The gag order entered by Justice Merchan and upheld by the five-judge appeals division did not prevent Trump from testifying in his own defense, a right Merchan expressly explained to Trump in open court during the trial. Trump had every right to do so, and chose to instead exercise his right to remain silent at trial.

The gag order restricted the defense from making statements outside of court that targeted witnesses, jurors, staff and family members of the court and prosecution team, though not Justice Merchan or Bragg himself. The court of appeals found that the order properly protected witnesses and the fair administration of justice.  

Myth: The U.S. Supreme Court may intervene and overturn Trump’s conviction before the his sentencing on July 11, which is four days before the GOP convention.

Response: Trump may appeal his conviction after he is sentenced on July 11. The case could not go before the U.S. Supreme Court until he exhausts all of his appeals in the New York state court system, which likely will take more than a year. Then, Trump could ask the U.S. Supreme Court to review his case, but only for alleged errors applied to federal statutes or the U.S. Constitution, such as the due process clauses of the 5 th and 14 th Amendments.

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The WJP is an independent, multidisciplinary organization working to advance the rule of law worldwide.

We engage advocates from across the globe and from multiple work disciplines to advance the rule of law.

European Union Subnational Justice, Governance, and Rule of Law Indicators

The world justice project is starting a new and multi-year project to produce people-centered indicators to assess justice, governance, and the rule of law in the european union at the subnational level..

Good governance and effective rule of law build trust among citizens and between citizens and government. They provide the rules-based framework that countries utilize to realize their social and economic potential. The rule of law is one of the common values upon which the European Union (EU) is founded and represents a constitutional priority shared by all Member States (Article 2 of the Treaty on EU). The construction and maintenance of the rule of law requires specific and evidence-informed solutions at the national and subnational levels, taking into account people’s perspectives and experiences.

With this in mind, the  World Justice Project (WJP)  is starting a new project to generate and disseminate people-centered indicators to assess justice, governance, and the rule of law in the EU at the subnational level. Data will be collected in and analyzed for 110 territorial regions across the 27 EU countries.   WJP will produce this data and analysis building upon the tested and proven methodologies of the  WJP   Rule of Law Index  and the  WJP Mexico States Rule of Law Index,  with adaptations to reflect the institutional architecture in the EU.

The EU Subnational Indicators will be calculated using responses from a general population poll and qualified respondents’ questionnaire administered at the NUTS1/NUTS2 levels, and will be complemented by third-party data, when available. These indicators will provide an overview of how government institutions perform based on the experiences and perceptions of people living in different regions of the EU when they interact with authorities from different levels. This information will facilitate region-to-region comparisons, identifying strengths and weaknesses in each of them as well as best practices and policies that can become reference points. The WJP plans to conduct data collection during 2023 and will launch a graphical report and communication materials in 2024, and an online platform soon after.

This project is funded by the EU and will complement other research activities being conducted by the WJP with the mission of advancing the rule of law worldwide.

Our first data will publish later in 2024. 

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If you have any questions or comments, please email our team at  [email protected] .

I was a law clerk for Justice Alito. He must recuse himself from hearing cases involving Donald Trump.

Flying the U.S. flag upside down, once a signal of distress, has become a symbol of those who reject the results of the 2020 presidential election. When Alito did so, it was indeed a distress call.

As a former law clerk to Justice Samuel A. Alito Jr., I often admired him as a person for his integrity and honesty. As a progressive liberal, however, I vehemently disagreed with the approach he takes to reading the Constitution, the narrow interpretation he adopts, and his reverence for the framers’ restrictive intent.

Over the years, I became increasingly distressed with the results of his decisions. And then came Dobbs .

By striking down the rights of women to choose whether to terminate a pregnancy, the decision last year in Dobbs v. Jackson Women’s Health Organization , which he wrote , eviscerated women’s fundamental right to self-determination. Dobbs is not just about abortion; it is about setting the clock back and undermining the core protections enshrined within the Constitution of liberty, equality, and access to justice.

And then came the flag.

Flying the American flag upside down, formerly a signal of distress, is now understood to unequivocally telegraph support for those who have co-opted and corrupted its original intent . It has become the symbol of those who attacked the U.S. Capitol in a violent insurrection on Jan. 6, 2021, who challenged — and continue to deny — the legitimate results of the 2020 presidential election. It is the emblem for the “Stop the Steal” Trump factions , the symbol now held hostage by those who attacked our democracy at its very core.

The New York Times reported earlier this month that Justice Alito flew an upside-down flag at his home in Fairfax, Va. , and another controversial flag at his beach house on Long Beach Island — acts that are widely accepted as an abhorrent affront to anyone who respects our constitutional democracy. So, when that flag is flown upside down by a member of the nation’s highest court, it is indeed a distress call.

The U.S. Supreme Court is currently deciding whether a president’s actions while in office are absolutely immune from criminal prosecution , irrespective of whether they concern the legitimate business of the office. Donald Trump has been indicted in state and federal courts in Washington, D.C., Florida, Georgia, and New York, alleging fraud as well as crimes in connection with the Jan. 6 insurrection, the mishandling of classified documents , election interference , and more.

If the Supreme Court decides that he has blanket immunity — a decision expected any day now — these criminal charges, and any others, disappear. This means a president could commit serious crimes while in office, having nothing to do with the legitimate function of government, without facing any consequences. A president could theoretically hire an assassin to kill a competitor with impunity.

Justice Alito must recuse himself from having any role in the decision of these cases.

Federal law requires a justice, judge, or magistrate to disqualify themself in proceedings in which their “ impartiality may reasonably be questioned .” Judges routinely recuse themselves from cases where the mere hinted appearance of impropriety is enough to warrant stepping away from a case.

Flying the flag, upside down, at your home is more than a hint of political impropriety — it irrefutably calls into question impartiality and bias toward the former president. It is a tangible demonstration of support for those who continue to assert that the election was stolen from him. It is the chosen insignia of those who tried to hijack the election by attacking the Capitol on Jan. 6 and gut the very constitutional democracy that established the Supreme Court.

The flag flying over Justice Alito’s home casts a shadow over his ability to be impartial.

This is not the first time the “Stop the Steal” specter has arisen at the court. Revelations and allegations about Justice Clarence Thomas’ wife’s communications with White House Chief of Staff Mark Meadows , allegedly supporting the disruption of the results of the November 2020 election, raised the appearance of political impropriety. So, too, does the flag flying over Justice Alito’s home cast a shadow over his ability to be impartial.

It is precisely to guarantee independence from political pressure that Supreme Court justices (and all federal judges) serve for life. They do not need to run for reelection, nor curry favor with politicians to ensure their reappointment. But this same guarantee of political independence engenders a lack of meaningful oversight, creating an opportunity to make decisions based on personal, political persuasions.

Moreover, with a majority of Supreme Court justices largely understood to have a conservative agenda, much of which aligns with a Republican platform, the fear that civil rights are in jeopardy is tangible. Now more than ever, there is no place for politics on the court.

Justice Alito may or may not be biased in favor of the former president, but the flag flying upside down at his home in the past unequivocally telegraphs reasonable questions about his impartiality in cases involving Trump. These questions, separate and apart from the crisis in confidence that such conduct may raise for the court, mandate Justice Alito’s recusal from these cases.

The gravity of the implications of Justice Alito’s refusal to recuse himself from these decisions cannot be understated. At stake is not only the independence of the court itself, but also its credibility, and its role as a protector of our constitutional democracy.

Susan Sullivan is a professor in the political science department at Temple University and served as a law clerk to Justice Samuel A. Alito Jr. on the Third Circuit Court of Appeals.

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Banks to Bear Heavy Burden in Sizing Up State Law Compliance

The US Supreme Court’s May 30 decision in Cantero v. Bank of America requires national banks reconsider the state laws they comply with and, more importantly, those they choose—at their peril—not to follow.

This decision will significantly erode the ability of national banks to assert that a state law is preempted, making compliance with the law unnecessary. Therefore, national banks will be following existing state laws more than they do today. This decision gives states the ability to promulgate new laws that govern national banks.

The decision provides a framework for how national banks must evaluate whether they are required to comply with a state law.

The question before the court was whether the National Bank Act preempted a New York law that requires banks pay interest on mortgage escrow accounts. Before the appeal to the Supreme Court, the US Court of Appeals for the Second Circuit held the New York law was preempted by the NBA because the New York law exerted control over a national bank’s powers to offer escrow accounts.

The court in this decision interpreted the Dodd-Frank Act of 2010, which specifies a standard for assessing whether a state law is preempted. Specifically, a state law that doesn’t discriminate against a national bank is only preempted if the law “prevents or significantly interferes” with a national bank’s powers. The standard that is required to be used when assessing whether the state law “prevents or significantly interferes” is the standard set in a different US Supreme Court case— Barnett Bank .

The Supreme Court, in a unanimous decision, found the Second Circuit failed to conduct the analysis required by Dodd-Frank and Barnett Bank, and sent the case back to them to apply the correct standard. The Supreme Court rejected the method the Second Circuit used “to distill a categorical test that would preempt virtually all state laws that regulate national banks.”

Barnett Bank requires a facts and circumstances analysis that assess the degree and type of the interference caused by a state law. The analysis must then review the significance of the interference against previous precedents. The Supreme Court referenced a number of cases that could be used in this analysis—some in which a state law was held to be preempted and some in which the state law wasn’t preempted.

While national banks have been following guidance of the Office of the Comptroller of the Currency, which has issued rules asserting that state laws that relate to certain topics are pre-empted, consumer advocates and Democratic lawmakers asserted that the OCC’s guidance has been inconsistent with Dodd-Frank. In December, several Democratic senators sent a letter to the acting comptroller of the currency criticizing the OCC’s approach to preemption, declaring the approach is inconsistent with Dodd-Frank.

The Supreme Court’s decision in Cantero appears to justify views of individuals and groups who have criticized the OCC’s approach to preemption and appears to assert that the type of categorical preemption the OCC favors isn’t permissible.

This decision will result in a large burden for national banks, as they will be required to determine state laws purport to govern their businesses, and whether they believe each state law is preempted based on the fact-intensive process outlined in this case. Without conducting this review, banks potentially expose themselves to lawsuits similar to this one alleging non-compliance with state law.

The case is Cantero v. Bank of America , US, No. 22-529, decided 5/30/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Joseph Schuster is partner in the consumer financial services practice group at Ballard Spahr and was previously a managing director and senior counsel at Goldman Sachs.

Write for Us: Author Guidelines

To contact the editors responsible for this story: Jessie Kokrda Kamens at [email protected] ; Jada Chin at [email protected]

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Trump and Allies Forge Plans to Increase Presidential Power in 2025

The former president and his backers aim to strengthen the power of the White House and limit the independence of federal agencies.

Donald J. Trump intends to bring independent regulatory agencies under direct presidential control. Credit... Doug Mills/The New York Times

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By Jonathan Swan ,  Charlie Savage and Maggie Haberman

• Published July 17, 2023 Updated July 18, 2023

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

He wants to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs a president doesn’t like — a tactic that lawmakers banned under President Richard Nixon.

He intends to strip employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as “the sick political class that hates our country.”

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