Appellate Decisions Research Articles

LEGAL PROTECTION FOR FOREIGN WORKERS IN THE CASE OF UNILATERAL TERMINATION OF EMPLOYMENT BEFORE THE END OF THE EMPLOYMENT PERIOD

The state holds constitutional responsibility in the field of labor by providing legal protection to ensure legal certainty for individuals involved, particularly in the context of employing foreign labor. However, such protection applies only to foreign workers who meet the legal standing requirements in Indonesia. This research addresses the case of unilateral termination of employment against Stephane Baudoin by PT Origin Resort Lombok. Utilizing a normative juridical method, the findings indicate Baudoin's entitlement to legal recourse due to fulfilling the criteria of legal standing in labor matters. The appellate decision of the Supreme Court confirms PT Origin Resort Lombok's violation of the Job Creation Law. This study aims to contribute to the literature on the protection of foreign workers, focusing on industrial relations disputes and legal safeguards. Keywords: Foreign Workers, Industrial Relations Disputes, Legal Protection

Recent developments in the regulation of cross-border technology and licensing agreements in Nigeria

This article analyses the National Office for Technology Acquisition and Promotion (NOTAP) Act that prescribes the registration of certain cross-border agreements largely concerning intellectual property and management services involving Nigerians and foreigners. It discusses the policy underpinning this obligation to register. It reviews the recent amendment of the NOTAP Act. It scrutinizes the debate that suggests that the non-registration of NOTAP registrable agreements makes those agreements illegal and unenforceable. It reviews the two appellate decisions on the issue and argues that, presently, it is erroneous to treat such registrable agreements as illegal. Today, the only effect of non-registration of registrable agreements is that foreign exchange fees, royalties and the like cannot be remitted through the Central Bank of Nigeria. The article highlights the possible commercial impact of such erroneous treatment of unregistered registrable agreements. The article examines whether the powers of NOTAP extend to making cross-border licensing and technology agreements between a Nigerian-based licensor and foreign-based entity registrable by NOTAP. It calls for an amendment of the NOTAP Act to make the registration of registrable agreements compulsory such that non-registration will make such agreements unenforceable.

Access to garden-plots with reference to the Model Law of the CIS Member States

The paper is dedicated to the analysis of the Appellate decision of the Leningrad Regional Court dated August 11, 2021, No. 33-3839/2021 in which the court concluded that the residents of the garden village have rights to access to individual land plots on the basis of an easement type encumbrance established in relation to the roads of the village as a result of the division of the original land plot. In support of its position the court refers, among other, to the Model Law “On Limited Property Rights”, approved on November 27, 2015, by the Inter-Parliamentary Assembly of the CIS Member States. At the same time the case is remarkable not only for its reference to the Model Law, but also for the fact that in its resolution a commendable attempt was made to find answers to questions about the allowability (non-allowability) of the alienation of general purpose land plots in garden villages and gated communities separately from individual land plots in these villages and communities; for the qualification of the restriction established by a cadastral engineer in the process of dividing a land plot and displayed as a special note in the Unified State Register of Real Estate. In addition the case allows to reflect on the allowability of using Model Laws to resolve cases in Russian courts; on the presence (absence) of provisions on so-called “legal easements” in the Federal Law of July 29, 2017, No. 217-FZ “On Gardening and Horticulture by Citizens for Their Own Needs and on Amendments to Certain Legislative Acts of the Russian Federation”; on the possibility to establish a “private” easement in relation to one’s property, including the process of dividing one’s land plot; on the most effective ways to protect owners of individual land plots in garden villages and gated communities in the events of conflicts with owners of general purpose land plots in these villages and communities.

Jurisprudential fabrication and Its Applications to the Oath of Invocation According to the Practice in Jordanian Sharia Courts

This study highlights the legal jurisprudential issue that arises in Sharia courts, derived from the provisions of the Journal of Judicial Judgements, which is a question of the "Oath of Invocation." It also examines the jurisprudential concept of fabrication, identifying the scholars who permit it, its relation to the concept of facilitation in Islamic law, the conditions for its application, its historical emergence, types, categories, and criteria. The study further highlights the application of the jurisprudential fabrication in Article 1746 of the Judicial Decisions Journal as practiced by the Journal of Judicial Judgements, discussing the necessity and justification for its application. Additionally, it explores the scholars who oppose its permissibility and clarifies the religious obligations regarding its application. The jurisprudential oath is then applied in the context of the "judgment against the non-concealing opponent" and supported by a series of appellate decisions related to the legitimate forensics oath in cases involving inheritance debts. Finally, the study concludes with key findings and recommendations.

Who Shapes the Law? Gender and Racial Bias in Judicial Citations

In this letter, we assess whether the contributions of judges from underrepresented groups are undervalued or overlooked, thereby reducing these judges’ influence on legal policy. Drawing on an original dataset of discretionary citations to over 2,000 published federal appellate decisions, we find that the majority of opinions written by female judges receive less attention from other courts than those by similarly situated men and that this is largely attributable to disparities in citing Black women and Latinas. We also find that additional efforts by Black and Latinx judges to ground their opinions in precedent yield a much lower rate of return in subsequent citations by outside circuits than comparable work by white men and women judges. This suggests that, despite gains in diversification in the federal judiciary, stereotypes about social identities will play a powerful role in determining whose ideas receive recognition.

Forensic Mass Spectrometry: Scientific and Legal Precedents.

Mass spectrometry has made profound contributions to the criminal justice system by providing an instrumental method of analysis that delivers exquisite analytical figures of merit for a wide variety of samples and analytes. Applications include the characterization of trace metal impurities in hair and glass to the identification of drugs, explosives, polymers, and ignitable liquids. This review describes major historical developments and, where possible, relates the developed capabilities to casework and legal precedents. This review also provides insight into how historical applications have evolved into, and out of, modern consensus standards. Unlike many pattern-based techniques and physical-matching methods, mass spectrometry has strong scientific foundations and a long history of successful applications that have made it one of the most reliable and respected sources of scientific evidence in criminal and civil cases. That said, in several appellate decisions in which mass spectrometric evidence was challenged but admitted, decisions sometimes still went against the mass spectrometric data anyway, which goes to show that mass spectrometric evidence is always just one piece of the larger legal puzzle.

Art, Music, & Mashups: A View from the Bench on Creativity and Copyright

Creativity has captured human fascination for centuries. It has been said that “[t]here is little that shapes the human experience as profoundly and pervasively as creativity.” But what is creativity? Is it pure originality? Divine inspiration? Clever assimilation of existing ideas? Despite creativity’s central role in human progress, the term eludes finite definition.
 To Plato, creative inspiration was divine. In contrast, Kant thought that creative geniuses were not divinely inspired but born with a particular quickness of mind that fostered brilliance and innovation. T.S. Eliot recognized the critical role of borrowing in creative work, quipping, “[i]mmature poets imitate; mature poets steal; bad poets deface what they take; and good poets make it into something better, or at least something different.”
 In psychology, a leading theory of creativity requires inspiration from existing concepts. In his “associative theory” of creativity, Sarnoff Mednick posits that most of us have predictable, stereotypical associations with a given stimulus, while the creative among us are able to retrieve remote associations. For instance, although most associate “table” with “chair,” the creative might proffer “leg” or “food.” Defining creativity as a framework of novel associations between existing concepts, Mednick distinguishes originality from creativity, finding the former of little import.
 However different theorists and disciplines might define creativity, its outcomes are varied, enduring, and ever evolving. Creativity has brought us everything from Rodin’s sculptures and Van Gogh’s paintings to Newton’s scientific discoveries, from musical scores and movies to computer code.
 Where, then, does the law intersect with creativity? The United States Constitution directs Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Born from that critical clause is the American approach to copyright. Recognized by the U.S. Supreme Court as “the engine of free expression,” copyright law enriches “the general public through access to creative works.”
 To illustrate how copyright law fulfills its aims through the lens of art, music, and “mashups,” I invite you to accompany me on a short tour of copyright law’s dance with creativity by offering select examples from federal appellate decisions and a view from the bench.

The Indian Child Welfare Act during the Brackeen years

AbstractFrom 2017 through 2022, while the Indian Child Welfare Act (“ICWA”) was under direct constitutional attack from Texas, state courts around the country continued hearing appeals on ICWA with virtually no regard for the decision‐making happening in Haaland v. Brackeen in the federal courts. For practitioners following or working on both sets of cases, this duality felt surreal, as they practiced their daily work under an existential threat. The data in this article draw from the authors' previous publications providing annual updates on ICWA appeals, and now include cases through 2021. It provides a description of appellate data trends across this time period, as well as for each year, while also highlighting key appellate decisions from jurisdictions across the country. Perhaps what this article demonstrates more than any single thing is the amount that ICWA is a part of child welfare practitioners' daily lives now, in a way that will be difficult to upend, regardless of the Supreme Court's ultimate decision.

Asymmetric review of qualified immunity appeals

AbstractThis article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. They show that qualified immunity, when deployed, often bars relief for plaintiffs. Moreover, they show that courts of appeals reverse decisions to deny qualified immunity far more often than they reverse decisions to grant qualified immunity, and that this asymmetric review is correlated with traditional indicators of judicial ideology, among other variables. Significantly, the data also suggest that the asymmetric review that characterizes appellate decisions is also present in the Supreme Court's certiorari practice.

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Posttraumatic stress disorder (PTSD) has been offered as a basis for criminal defenses, including insanity, unconsciousness, self-defense, diminished capacity, and sentencing mitigation. Examination of case law (e.g., appellate decisions) involving PTSD reveals that when offered as a criminal defense, PTSD has received mixed treatment in the judicial system. Courts have often recognized testimony about PTSD as scientifically reliable. In addition, PTSD has been recognized by appellate courts in U.S. jurisdictions as a valid basis for insanity, unconsciousness, and self-defense. However, the courts have not always found the presentation of PTSD testimony to be relevant, admissible, or compelling in such cases, particularly when expert testimony failed to show how PTSD met the standard for the given defense. In cases that did not meet the standard for one of the complete defenses, PTSD has been presented as a partial defense or mitigating circumstance, again with mixed success.

A framework for critical discourse studies on mental health

In this article I present a framework for critical discourse studies on mental health. By relying on principles belonging to Critical Discourse Studies (Flowerdew & Richardson, 2018; van Leeuwen, 2008; 2007), and the Sociology of Health (Caponi, 2014; Martinez-Hernaez, 2014; Mitjavila, 2015; Rose & Abi-Rached, 2014), at first I introduce a brief contextualization of Critical Discourse Studies as a field of research and establish connections between this field and mental health studies. In the sequence, I present a framework divided in 8 steps focused on the investigation of social practices involving mental health. These steps are then applied to the analysis of one appellate decision produced by the Superior Court of Justice in Brazil involving the diagnosis of Attention Deficit and Hyperactivity Disorder. The analysis reveals ADHD has a neuropolitical function and that authority related to the diagnosis is vested in medical expertise only, despite the lack of biological markers for it.

The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena

The topic of whether an accused charged as a party to murder can access the common law defence of duress has been a controversial subject in Canada. Unlike in Britain where the House of Lords in R v Howe categorically decided to deny the common law defence to all parties to the offence of murder, the law in Canada has been more hospitable to offenders charged with murder. Aiders and abettors and those charged under the common intention provisions of the Criminal Code of Canada are given access to the defence. The question of whether a principal to murder has access to the common law defence of duress has not yet been decided by the Supreme Court of Canada. In R v Aravena, the Court of Appeal for Ontario was inclined to the view that the defence be extended to principals to murder to give effect to the Charter principle of moral involuntariness. However, in a subsequent decision, R v Willis (TAW), the Court of Appeal for Manitoba refused to follow Aravena, finding that the denial of the common law defence of duress to principals to murder, as provided for in s. 17 of the Criminal Code, was constitutional, based on a proper understanding and application of the principle of moral involuntariness. The Supreme Court of Canada refused leave from the decisions in both Aravena and Willis, leaving the law of duress confused and unsettled as between these two appellate decisions. In this article, it will be argued that there are five reasons to prefer the holding in Aravena to the holding in Willis.

Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK's Protection of Physical Privacy

The inadequacies of English common and statutory law have left a noticeable gap in the UK's protection of physical privacy. Mann J's 2019 decision in Fearn v Board of Trustees of the Tate Gallery helped fill this gap as it acknowledged that overlooking between neighbours could constitute an actionable nuisance. A year later, the Court of Appeal reversed this development and reaffirmed that private nuisance cannot be used to combat breaches of privacy. This article evaluates the extent to which the High Court decision in Fearn was a useful and desirable tool for defending physical privacy in order to assess the correctness of the appellate decision. The article contends that Mann J's extension was a justified development as it conformed with precedent, the scheme and principles of private nuisance, the text and horizontal effect of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, cases decided in the European Court of Human Rights, and broader policy. However, the article acknowledges that Fearn was also a problematic development with limited potential as a protection mechanism. Its limitations arose from the conflict between traditional understandings of the right to privacy and nuisance's association with property, the land-based rationale for compensation in nuisance, the standing restrictions retained from Hunter v Canary Wharf Ltd, irregularities with the common law's favourable attitude towards children's privacy, and Fearn's similarities to anti-harassment legislation. Overall, the article concludes that although Fearn was imperfect in its treatment of physical privacy, it was a step in the right direction and contributed at least partially to filling the persistent lacuna in English privacy law.

Affirming the District Judge: An Empirical Analysis of the Effect of District Judges Sitting by Designation on Circuit Court Panels

Ten of the 12 U.S. courts of appeals regularly invite district court judges to take part in appellate decisions. This practice, known as “sitting by designation,” has received mixed reviews from judges and scholars. Some argue that the practice undermines democratic legitimacy and collegiality on the courts of appeals. Others contend that district court judges sitting by designation have little effect on the process because they are deferential—perhaps far too deferential—toward their circuit court brethren. Despite this ongoing debate, few studies have empirically analyzed the effects of judges sitting by designation on appellate court decision making. Here, we empirically assess whether panels that include a judge sitting by designation are more likely to affirm the district court decision. We hypothesize that judges sitting by designation are more likely to affirm district court decisions, and the panel effects associated with a judge sitting on a circuit panel will result in more “affirm” votes by circuit court judges sitting with those district court judges. Our analysis of 9,154 court of appeals decisions confirms that the presence of a judge sitting by designation does have a positive and statistically significant effect on the rate at which court of appeals judges vote to affirm district court decisions.

Japanese CRISPR Patent and Biotech Developments in the Early Reiwa Era

On February 25, 2020, in the second year of the Reiwa era, the Intellectual Property High Court of Japan (IPHCJ) issued two appellate decisions relating to the groundbreaking, Nobel Prize–winning, genome-editing technology, CRISPR. This article will outline the IPHCJ decisions' interpretative scope of the Japanese patent law novelty bar (secret prior art) where an earlier-filed, but subsequently published, patent application is regarded as prior art against a later-filed patent application. This analysis is topical in view of the vigorous first-to-file patent filing race amongst various CRISPR research and commercial interests, since Japan is one of the world's most important biotech and health care markets. The article will also provide a snapshot review of CRISPR, university-related biotech start-ups, and biotechnology in Japan during the global COVID-19 pandemic.

Alabama

Between October 2019 and September 2020, there were no noteworthy appellate decisions interpreting Alabama law directly relevant to oil and gas companies or operations. Similarly, there are no statutory amendments or administrative decisions impacting oil and gas companies operating in the state. However, the Alabama Supreme Court and the Eleventh Circuit Court of Appeals each issued an opinion addressing jurisdiction and procedural issues that are relevant to operators in Alabama. We discuss those opinions below.

Amenability of the Executive Power to Pardon to Judicial Review

The amenability of non-statutory executive powers derived from the royal to judicial review remains controversial; not only due to their source, but also because of the nature and subject matter of the powers themselves. One such power is the power of the executive to pardon a convicted criminal, traditionally called the prerogative of mercy. Two recent appellate decisions originating in Queensland have now considered the extent to which the pardoning power is amenable to judicial review. While United Kingdom authorities suggest such decisions are reviewable, in each of these decisions, the Queensland Court of Appeal and the Full Federal Court, respectively, found that decisions resulting in the refusal of pardons were not amenable to judicial review. Nonetheless, important questions remain. Both decisions have significant implications, and the judgments reflect different visions about whether, and to what extent, courts ought to review exercises of non-statutory executive power.

Supermajorities: A Proposal for the Judiciary Evaluated

In a 1984 article in the Journal of Legal Studies, Gordon Tullock and I.J. Good proposed a reform to the American judiciary that would have raised the threshold number of appellate jurists needed for a decision to become binding on lower courts, increased the number of cases that the Supreme Court hears, and prolonged the wait time for “good,” highly durable precedent. Recognizing the trade-off between timeliness and best results, Tullock and Good proposed still longer delays in exchange for even better results. This paper looks to the record of appellate decision making since that time to determine the proposal’s projected impact on precedent creation and costs to the legal system. Further arguments for and against the proposal are weighed in light of these findings.

Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK's Protection of Physical Privacy?

The inadequacies of English common and statutory law have left a noticeable gap in the UK's protection of physical privacy. Mann J's decision in Fearn v Board of Trustees of the Tate Gallery helped fill this gap as it acknowledged that overlooking between neighbours could constitute an actionable nuisance. However, the Court of Appeal reversed this development, reaffirming that private nuisance cannot be used to combat breaches of privacy. This paper evaluates the extent to which the High Court decision in Fearn was a useful and desirable tool for defending physical privacy, so as to assess the correctness of the appellate decision. It contends that Mann J's extension was a justified development as it conformed with precedent, the scheme and principles of private nuisance, the text and horizontal effect of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, case law in the European Court of Human Rights and broader policy. However, the paper acknowledges that Fearn was also a problematic development with limited potential as a protection mechanism. This is due to the conflict between traditional understandings of the right to privacy and nuisance's association with property, the land-based rationale for compensation in nuisance, the standing restrictions retained from Hunter v Canary Wharf Ltd, irregularities with the common law's favourable attitude towards children's privacy, and Fearn's similarities to anti-harassment legislation. Overall, the paper concludes that although Fearn was not perfect in its treatment of physical privacy, it was a step in the right direction and contributed at least partially to filling the persistent lacuna in English privacy law.

Snap Removal: Concept; Cause; Cacophony; and Cure

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility. Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending claims in an inconvenient or hostile forum – such removals are barred so long as resident defendants are properly joined “and served.” Defendants preferring the federal forum have invested significant resources monitoring state trial dockets in order to race to remove before service on forum defendants can be effectuated. Where such snap removal is permitted, defendants, both in-state and outsider are allowed to select their preferred forum – an outcome in derogation of the history, purpose, and logic of permitting removal. This clever strategy of defense counsel is facilitated and accelerated by electronic docket monitoring and sometimes (as in the Third Circuit case) attorney trickery amounting to deceit. The recent federal appellate decisions are regrettable both in taking the wrong fork of the metaphorical road regarding snap removal and in shifting the trial court landscape from one of resistance to snap removal to one of toleration. Disturbingly, the appellate decisions (without recorded dissent) analyzed the issue through the simplistic lens of textual literalism with narry a nod to the history, purpose, and public policy of federal removal law. In doing so, the Circuit panels not only reached a problematic result but also displayed an impoverished interpretative methodology. Corrective action by Congress can put a stop to these mistaken results in a manner that vindicates the intent and purpose of the 1948 Congress that added the service requirement and that adequately protects the interests of both plaintiffs and defendants. We outline and assess the most prominent suggestions for fixing the snap removal problem, including our own preferred solution.