Australia’s Access to Her Queen’s Correspondence

For over a century, immigrants have faced adverse immigration consequences if convicted of certain types of offenses in criminal court. Many types of criminal convictions carry severe immigration penalties, including deportation, detention, and the denial of status like asylum or U.S. citizenship. The Supreme Court recently recognized that these penalties are so intimately tied to criminal court adjudications that criminal defense attorneys have a duty to advise noncitizen defendants of the immigration consequences of their guilty pleas in criminal court. Yet there is little clarity as to how one determines whether a particular conviction triggers an immigration penalty. Historically, courts have applied a categorical analysis for assessing the immigration consequences of a criminal conviction. Under a categorical analysis, an immigration official determines the penalties based on an assessment of the statutory definition of the offense, not the factual circumstances of the crime. However, recent Supreme Court, federal court, and agency decisions have ignored this longstanding analysis and have instead examined these issues through the lens of Taylor v. United States, a criminal sentencing case that adopts a categorical analysis in a different context. Distinguishing Taylor and its criminal sentencing rationales, recent decisions have invented a new approach for how past criminal convictions are assessed in the immigration context that now permits a circumstance-specific inquiry into facts beyond the criminal court’s findings in some immigration cases. Under these recent decisions, the immigration consequences of a criminal conviction no longer turn on the criminal court adjudication alone, but may also account for facts that were not proven or pleaded in the criminal court proceeding. This article argues that this shift in analysis is based on a fundamental misunderstanding of the origins of categorical analysis in immigration law and its independent rationales, including its promotion of notice and an opportunity to be heard, uniformity, predictability, efficiency, and judicial review in the administrative agency context. The article further argues that, because of the flaw in the current debate, courts have failed to consider the negative impact that the erosion of categorical analysis has on the functioning of the current immigration and criminal justice systems. The rationales meriting categorical analysis apply with even greater force today than they did when categorical analysis was first articulated nearly a century ago.

This case note examines the High Court’s recent decision in Williams v Commonwealth as it relates to the religious tests clause of s 116 of the Constitution. It was alleged that school chaplains engaged under the National School Chaplaincy Program held offices under the Commonwealth and that the rules governing their appointment constituted a religious test. This case note considers in detail the submissions made by the parties and interveners — something the High Court did not do in its judgment — and critiques the reasoning in the judgments that dealt with the s 116 issues of whether a religious test was involved and whether school chaplains held an office under the Commonwealth. The note also offers a critique of the methodological approach taken to the interpretation of the clause by the Court. It is concluded that the High Court’s decision provides only limited and somewhat confusing guidance on the meaning of this important constitutional provision.

It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court's Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court's decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy. How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed. The question now is where this process of change will lead.

extract] Until the recent High Court decision in Breen v Williams, it has been difficult to determine the extent of the schism between the two Jurisdictions. That decision has, however, confirmed that the High Court is unwilling to follow the Canadian approach to the fiduciary principle, and that a clear divergence will continue between the two Jurisdictions. This article will consider the pro-active approach of the Supreme Court of Canada to the imposition of fiduciary duties, and to the remedies available for breach of fiduciary duty, and contrast this with the more traditional approach towards the fiduciary principle in Australia, as exemplified by the High Court's decision in Breen v Williams.

Each year, the Macdonald-Laurier Institute for Public Policy recognizes a “Policy-Maker of the Year”. Past recipients have included former Bank of Canada Governor Mark Carney and Foreign Minister John Baird, who have had a tremendous impact on our country’s economic stability and international stature, respectively.One could argue that, while people in such positions are undoubtedly influential, there is another entity that is rarely acknowledged for its influence on policy, but in the last year has changed Canadian public policy in wide-reaching and long-lasting ways – the Supreme Court of Canada (SCC). This paper examines the Court’s 10 most significant judgments of the last 12 months in terms of their importance and policy implications, on issues ranging from the Senate reform reference to the Bedford case challenging Canada’s prostitution laws to the Tsilhqot’in Aboriginal land claim in BC.This analysis comes at a time when media commentators have characterized recent high court decisions as a string of “losses” for the federal government. So what does the evidence show?• The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring;• The Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and• The federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.In the last year, the Court has effectively taken Senate reform off the federal agenda for the foreseeable future, torpedoing both the governing Conservatives’ reform program and the Opposition New Democrats’ policy to abolish the Senate. The Court has struck down much of Canada’s prostitution legislation, resulting in a dramatic rewriting of the law by the current government. It has changed the landscape in parts of Canada for Aboriginal rights, affected tools available for fighting crime and terrorism, and cast into question how future appointments to the Court from Quebec will be managed. One would be hard-pressed to find another actor in Canada who has had a greater impact on such a wide range of issues than the Court has in the last year, such that the moniker Policy-Maker of the Year is appropriate. The Court, no doubt, would resist such a label on the view that it simply applies the law as part of its constitutional mandate. But the policy impact of its recent decisions is clear.

Following the Supreme Court's groundbreaking decision in Padilla v. Kentucky, many noncitizens have successfully vacated prior convictions on the grounds that they had not been accurately advised of the immigration consequences of their criminal conviction. As accurate immigration advice is now considered within the ambit of the Sixth Amendment’s right to effective assistance of counsel, the main vehicle used to vacate these constitutionally infirm convictions has been through motions for post-conviction relief. Unfortunately for many noncitizens, relief under Padilla has been limited due to unreasonably strict readings of the second prong of the Strickland test. Under Strickland, the petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Many courts, emphasizing state interests in the finality of criminal convictions, have interpreted this language to mean that the petitioner must be able to show that, absent the defective plea bargain, she would have been able to achieve a better result at trial. Many of these courts relied upon the Supreme Court’s language in Hill v. Lockhart, where the Court held that a prisoner failed to meet the prejudice prong of Strickland because he could not show a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial. This note seeks to show how the Supreme Court’s recent decision in Missouri v. Frye necessitates a reevaluation of how courts currently interpret the prejudice prong of Strickland. Section II provides an introduction to both Strickland, which established the test used when evaluating claims of ineffective assistance of counsel, and Padilla, which extended Strickland into situations where a noncitizen was not accurately advised of the potential immigration consequences of her criminal conviction. Section III then turns the focus to how courts currently evaluate the second prong of the Strickland test, with a particular focus on how narrow readings of Strickland have limited relief for noncitizens. Section IV introduces Missouri v. Frye, a recent Supreme Court decision that discussed the right to effective assistance of counsel during plea bargaining. Section V, then, describes the potentially game-changing effects that Frye could usher in if advocates are able to extend its use to situations where a defense attorney did not engage in plea bargaining with the client’s interest in avoiding any potential immigration consequences in mind.

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as seeking a whistleblower reward under Dodd-Frank, perhaps because the program is young, but also because the SEC process for determining whistleblower eligibility is secret.This article is the first to conduct an in-depth analysis of several questions that are key to determining whether a lawyer may receive whistleblowing award under a federal program without violating state ethics law: 1) When may a lawyer disclose a client’s confidential information to others? 2) When does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another? 3) Are any of a lawyer’s obligations under state law preempted by the federal law that provides for financial incentives for whistleblowers? 4) Which state’s law applies to lawyers who move from state to state as they work for national and international companies?These questions are enormously complex. State confidentiality exceptions differ widely among states, and contrary to the suggestions of recent court opinions, disclosure may not be “reasonably necessary” either to prevent the continuation of continuing crimes or frauds or to rectify or mitigate past wrongdoing. State loyalty obligations include not only conflict of interest rules for current and former clients, but also a lawyer’s common law fiduciary duty not to profit from a client’s confidential information. Although not yet identified by any court or commentator as a basis for excluding lawyers from seeking whistleblower rewards, this well-settled fiduciary duty is so broad that it may prohibit a lawyer from seeking a financial reward for disclosing client information without the client’s consent, even when the targeted company is a third-party non-client about whom the lawyer acquired information while representing a client.In view of the potential breadth of a lawyer’s confidentiality and loyalty obligations, which has yet to be acknowledged, the federal preemption question is an important one. Given the complexity of the issues, we do not purport to suggest the final answer, but we do briefly address the central questions that should be raised with respect to the preemption of state law by the FCA, which poses more problems in this regard than does Dodd-Frank. Most significantly, we question the analysis of several recent federal court decisions, including a Second Circuit decision, that concluded without much discussion that the FCA does not preempt a lawyer’s state law obligations. None of these courts confronted the fact that federal courts in FCA cases involving nonlawyer-relators have apparently preempted the state law fiduciary or contractual duties of these individuals in situations where enforcing these obligations could effectively prevent most company insiders from serving as FCA relators. We suggest ways in which lawyer-relators might be distinguished from nonlawyer-relators, but it is unclear whether federal courts will accept this distinction. We also question the analysis of recent federal court decisions in determining the choice of law rule that federal courts should apply in deciding which state’s ethics law applies when there are several states with significant contacts with the matter.We conclude with a summary of our findings and a caveat concerning the wisdom of Dodd-Frank’s secret process for granting whistleblower awards.

The article provides a general political review of recent High Court decisions and explores the extent to which the judiciary can be said to be the 'least dangerous branch'. By examining recent events such as the 'Kirby incident', as well as the important judgments handed down by the High Court concerning Native Title, IVF and the Web, it seeks to delineate the influence and changing role of the High Court in Australian politics and constitutionalism. This is the Australian Journal of Political Science 's second annual review of the Australian High Court from a political-science perspective.

This Comment will review the history pertaining to the role real property plays in Indian law policy and address the impact of recent Supreme Court decisions on the ability of tribes to put land into trust. Part II describes the history of the law governing Indian land up to, and including, the Marshall Trilogy, and explains the relative concept of tribal sovereignty. Part III reviews statutes governing Indian land after the Marshall Trilogy, and details the legal history around the Indian Reorganization Act. Part IV of this Comment explores how the Supreme Court’s recent decisions have impacted the Indian land-into-trust process and explains the specific problems created by Carcieri and Patchak. Part V considers the proposed solutions to this impact, including legislative bills introduced since Carcieri, and suggests that the best solution to the uncertainty caused by Carcieri and Patchak, is for Congress to pass new legislation that reaffirms the Secretary’s authority and expressly secures the land, once placed in trust, from future litigation.

A recent Supreme Court decision has taken a more progressive stance on the so-called “repeatitive bankruptcy filing”, which refers to a debtor’s new bankruptcy filing after failing to obtain discharge in a previous bankruptcy proceeding. While prior Supreme Court precedents have generally prohibited repeat bankruptcy filings, the latest decision ruled that a new bankruptcy filing should not be denied merely based on the external appearance of procedural repetition, particularly in cases where the debtor had withdrawn a previous discharge application. Furthermore, the decision suggested key factors for determining whether a filing constitutes a repeat bankruptcy, including the reasons for the debtor's failure to obtain discharge in the previous proceeding and the time interval between bankruptcy cases. This approach allows for a more flexible interpretation of repeat bankruptcy filings. Meanwhile, Germany’s 2014 insolvency law reform established statutory limitations on new discharge applications by debtors who were previously denied discharge. In light of this situation, this article examines the Supreme Court’s recent decision and, referencing the German legal framework, proposes criteria for assessing repeat bankruptcy filings in Korea.

Recently, federal courts have used the dormant Commerce Clause doctrine to strike down state regulations of alcohol sales, as applied to out-of-state alcohol producers and purchasers, despite the text of the Twenty-first Amendment, which appears to authorize such state regulation. This article argues that in striking down state regulations, these courts have ignored constitutional text, evinced indifference to the history of the Twenty-first Amendment, and misapplied Supreme Court precedent. In sum, they have come close to effecting a virtual repeal of the Amendment. But, I argue, there is opportunity in this new wave of litigation - opportunity to repair the erosion of state power under the Amendment caused by years of parsimonious interpretation by the U.S. Supreme Court and carried further by the recent decisions. In this essay, I do three things. First, I summarize the history of the framing and ratification of the Twenty-first Amendment, and demonstrate that its purposes were understood to go well beyond merely allowing states to pursue temperance policies. Second, I chart the evolution of the Supreme Court's Twenty-first Amendment jurisprudence, and describe the Court's move from rules to standards in applying the Amendment, which has resulted in a dramatic reduction of state power over alcohol. Finally, I critique the recent district court decisions that limit states in the one area in which their power remained largely unquestioned by the Supreme Court - the regulation of liquor imports from out-of-state. By way of conclusion, I offer suggestions to lower courts and to the Supreme Court for properly applying the Amendment in future cases.

2012 is a year of unprecedented amounts of political advertising, much of it paid for by billionaires and millionaires or by corporations, often with the identity of the funders hidden. These mega-funders act through “independent” groups, groups supposedly independent of the candidates. This is a good year to reflect on the health of our political system. Does it work well as a device to promote informed democratic decision-making and speech from multiple perspectives? The problems are deep and systemic. They go farther and deeper than recent Supreme Court decisions that increase the previously very substantial influence of huge corporations and the very wealthy on the American political system. Still, recent decisions can lead us to think about the larger environment of our free speech system and about democratic system. Citizens United conferred a free speech right on corporate officers to spend unlimited amounts of corporate treasury funds for “independent” broadcast ads that support or oppose candidates for political office. Davis v. FEC protected self-funded millionaires and billionaires from the millionaire amendment to the McCain Feingold Act. That amendment allowed somewhat higher contribution limits (in a total not to exceed the millionaire’s or billionaire’s spending) for candidates facing and outspent by millionaires or billionaires. The Court found this limited effort to protect the opportunity of the underfunded candidate to respond impermissibly chilled the speech of millionaires and billionaires. Arizona Free Enterprise struck down an important system for public finance of state elections, again on the idea that a limited amount of publicly facilitated matching equals chilling. These decisions are in considerable tension with the constitutional text and with the historical context and purposes of free speech guarantees. In the case of the 14th Amendment, the transformation of the text, from one protecting natural persons born or naturalized to one protecting corporations, has its origin in Lochner era jurisprudence. The Davis and Citizens United decisions can best be understood in light of their impact on the already troubled larger environment necessary to sustain robust free speech and meaningful democracy. Citizens United threatens to undermine further the fiduciary duty of elected officials to the people. It is inconsistent with historic understanding of the then radical idea that helped to create the system. By that approach, free speech was a right for people, was anti-hierarchical, and was designed to produce adequate information from multiple perspectives. It is in tension with the recognition that government has a positive role in furthering free speech and democracy. Government action may support free speech. It is not always a threat. Nor is unrestrained private power merely a benefit for robust free speech. The Citizens United, Arizona Free Enterprise Freedom Club’s PAC, and Davis v. FEC decisions can best be understood in light of the ecology of freedom of expression and a host of threats it faces. As de Tocqueville, Daniel Webster, and James Madison were aware, extreme concentration of wealth in few hands tends to undermine democracy as well as effective speech from multiple perspectives. In addition, undermining the anti-trust laws to permit extensive corporate consolidation threatens democracy. That candidates need huge advertising budgets for television and often must rely on those with great wealth for contributions undermines their fiduciary duty to “the people.” That they are funded by “independent” groups raises similar problems. Both facilitate an insidious form corruption of the political process. Concentration of media power in a few corporate hands exacerbates the problem. The demise of the Fairness Doctrine further facilitates one sided political communication. It is no surprise that candidates supported by corporate groups act to diminish sources of funding for other perspectives, by undermining unions and public employee unions and restricting the rights of victims of torts and so income of trial lawyers. The decisions of the Lochner era struck down progressive legislation, but left the political process relatively open. Decisions which undermine the democratic nature of the political process are worse. They strangle reform in the crib. The Court’s rejection of any consideration of equality of access to speech in the political process and its refusal to see any threat to the fiduciary role of public officials beyond outright bribery block almost all meaningful reform. A revived and more pervasive fairness doctrine for television and cable (where most of the political money is spent) would be one reform to limit monopolization of speech by wealthy interests, though implementation would raise its own problems. Another would be a required amount of free time for candidates on television and radio.

This blog posting addresses two primary concerns: (1) that the U.S. Supreme Court has taken an anti-patent turn in its recent decisions; and (2) emerging tensions between two key industry sectors with large stakes in the patent system, pharmaceutical/biotechnology and electronics/software. On the first point, I argue that the target of recent Supreme Court decisions is the Federal Circuit, and not patents or patent law. In particular I defend the eBay decision, and discuss the first wave of post-eBay cases, which I believe demonstrate a moderate and reasonable application of equitable principles to contemporary patent cases. As to the second point, I concur that there is a divergence of interests between pharma/biotech and electronics/software, but argue that it is essential to accommodate both sets of industries in one big patent tent. This will require skillful compromise, legislatively and through the common law process, but it can and should be done.]

The assessment of patent inventiveness in Taiwan is a multi-faceted endeavor, influenced by a confluence of legal standards and court practices. This opinion aims to elucidate the principles governing inventiveness assessment, dissect relevant court decisions and unravel the practical implications for applicants and patentees. This opinion includes the following. 1. An overview of inventiveness assessment: a foundational overview of the criteria and standards underpinning inventiveness assessment in Taiwan is provided. 2. Analyses of recent cases in different technical fields: delving deeper, we navigate through a series of recent case analyses spanning diverse technical fields, including the chemical, mechanical and pharmaceutical sectors. Through meticulous examination of court judgments, we discern the nuanced approaches employed in evaluating inventiveness across various fields. 3. Suggestions according to the cases: finally, based on the court judgments we provide our suggestions and strategies in various aspects for applicants and patentees. In synthesis, although the framework on inventive step in the current Taiwan Patent Examination Guidelines is clear, its implementation in court rulings varies depending on the specific technical field in Taiwan. Patents in different technical fields often have distinct logical considerations and focal points in the assessment of inventive step. Therefore recent landmark court decisions in Taiwan on inventiveness in various technical fields are introduced, and our specific recommendations are presented, in order to offer readers clearer guidance.

The affirmative action controversy over quotas is examined in light of recent Supreme Court decisions in the Bakke and Fullilove cases. Through important affirmative action courts decisions, the author summarizes the statutory and constitutional background of quotas, and the various legal tests used by individual Justices in interpreting cases in the area of affirmative action. The major finding is that the Supreme Court has not broken new ground in recent court decisions. Many important quota issues remain to be resolved.