Court Of Appeal Research Articles

Statistical Properties of the Department of Commerce’s Antidumping Duty Calculation Method with Implications for Current Trade Cases

The Department of Commerce (DOC) uses differential pricing analysis in order to detect whether a foreign exporter dumps goods in the U.S. market at prices lower than the exporter sells the goods for in its domestic market. A dumping duty is then levied on the exporter, the amount of which depends on the dumping margin. Several recent cases at the Federal Circuit Court of Appeals have challenged the DOC’s methodology on statistical grounds. In this article, the DOC’s procedure for calculating the dumping margin is described in detail, including the rules for the controversial zeroing policy. Several statistical issues with the DOC’s approach are identified and some potential improvements are proposed.

Women's rights under the Small House Policy in Hong Kong

AbstractThis article investigates how the legislature and courts in Hong Kong have been struggling to tackle the sex discrimination created by the Small House Policy (SHP). Initially introduced in 1972, the SHP provides every male indigenous villager in the New Territories with a once‐in‐a‐lifetime housing grant, thereby excluding women from this benefit. Despite its discrimination against women, the SHP was still exempted from the New Territories Land (Exemption) Ordinance in 1994 and the Sex Discrimination Ordinance in 1995. In 2019, the judicial review of Kwok Cheuk Kin and Lui Chi Hang v The Director of Land declared that part of the SHP was unconstitutional. Still, this decision was overturned in the Court of Appeal and the Court of Final Appeal, which ruled that the SHP was constitutional in its entirety. This article examines the historical context of the SHP, discusses how the court has been interpreting and defining the SHP and, more importantly, investigates how British's indirect rule created a hostile legal environment for women and further relegated them to the groups of ‘double‐ colonised’ and ‘triple‐colonised’.

Процессуальные и организационные особенности взаимодействия эксперта и суда по медицинским спорам

The article discusses the issues of appointment and payment of forensic examination in medical disputes, taking into account the latest trends in changes in current legislation. The procedural nuances of preparing civil case materials and collecting evidence for conducting a full-fledged expert study with a high degree of stability as evidence in the court of appeal are analyzed.

Gendered Judicial Opinions

In this paper we investigate whether gender is associated with the content of judicial opinions in the U.S. courts of appeals. Using a topic model analysis, we find that gender is a significant predictor of the content of judicial opinions. Two causal pathways could explain this result: (1) men and women judges write differently about the same cases; (2) men and women judges write about different cases, either due to assignment or selection effects. To untangle these two pathways, we carry out three additional analyses. First, we examine whether the United States as a party is associated with judge gender. We next examine whether case codes are associated with judge gender. Finally, we examine the relationship between topic prevalence and gender, controlling for case codes. Our findings lend greater support to the second pathway than the first. This result raises the prospect that prior work on gender-based differences in judicial behavior may be confounded by assignment or selection effects. Our results also raise normative concerns about gender disparities in voice and influence in the U.S. courts.

Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard's treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what one would expect from a panel with homogeneous partisanship? Finally, does the size of these potential partisan effects change over time in a way that would be consistent with partisan polarization on the courts? We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time—particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law.

Overview, Concepts, Viewpoints to the Possibility of Legal Regulation of Artificial Intelligence Technology

The purpose of the study is to disclose the concept of "artificial intelligence", to outline the possibilities of legal regulation of AI. The article considers the studies of various authors, among which it is necessary to name P.M. Morhat, A. Romaglio, V.L. Entin. The scientific novelty of the work lies in the fact that the category of "artificial intelligence" is considered from the position of the legislation of the Russian Federation, as well as based on the opinion of domestic and foreign scientists. As a result, based on the comparative analysis of information contained in the works of various authors, regulatory legal acts of the Russian Federation, foreign judicial practice, it is concluded that representatives of the legal and scientific communities demonstrate the lack of consensus on the question of whether the units of artificial intelligence and neural networks can be subjects of copyright. A. Ramalho is convinced that AI units cannot be subjects of copyright, which is confirmed by the analysis of the following court decisions: Decision of the Court of Appeal of the Federal Court of Australia dated 13.04.2022, Decision of Shenzhen Nanshan District People's Court dated 24 December 2019. The opposing view is reflected in the Japanese "Intellectual Property Strategy Program 2016", which uses the following argument: it seems impossible to distinguish the product of AI units from human intellectual products. It is impossible to agree with this, as the images generated by neural networks often cause the "uncanny valley" effect in people; no neural network has been able to pass the Turing test so far.

Appeals Court Admonition of NLRB Highlights Risks to Employers

In the recent case of Stern Produce Co. v. NLRB, Case No. 23‐1100 (2024), the U.S. Court of Appeals for the District of Columbia has highlighted just how far the National Labor Relations Board (NLRB) will go to reach certain conclusions and has underscored the ongoing risks to employers that appear before the agency.

Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution

Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.

A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)

Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.

Correction to: Protest policing and policing protesters: litigation in the U.S. Circuit courts of appeals

Correction to: Protest policing and policing protesters: litigation in the U.S. Circuit courts of appeals

Criminal Appellate Proceedings through the Prism of a Social Project: Synergy of the Society’s Request and Legislative Regulation

Public relations, developing in the process of judicial decisions reviewing in criminal cases on appeal, arise on the basis of criminal procedure law rules with great socio-projective potential, which means activities aimed to create specific images of the future and certain details of programs and plans being developed that often result in a new or modernized social object with an original mechanism and unique means of regulation of public relations. The institution of criminal appellate proceedings has been formed in the process of a long evolution, during which many options for reviewing court decisions were tested and rejected. It also acts as an object of social design, which will help ensure the effectiveness of law enforcement and implementation of the objective of criminal proceedings, enshrined in Article 6 of the Code of Criminal Procedure of the Russian Federation. As the result of designing appeal proceedings in criminal cases, a set of scientifically grounded functional proposals can be developed. They can have a positive impact on the review in the court of appeal, since the latter should be able to satisfy the social interest (need) of interested parties, meaning not the satisfaction of the appeal, but the administration of justice in the full sense of the word.

Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32

The South African Constitutional Court was recently tasked with considering whether the "just and equitable" requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates' Court. The Magistrates' Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates' Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the in consistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates tension between the rights of private landowners and unlawful occupiers is not constructive. Ideally, evictions should be resolved by enforcing a potentially homeless person's right to access adequate housing by holding the state to account for its constitutional obligations.

Legal Interpretations of Trauma: The U.S. Circuit Court of Appeals and Gender-Based Asylum Claims

This article is based on exploratory research on how the U.S. Circuit Court of Appeals uses the language of trauma in gender-based asylum claims. Gender-based asylum claims include female genital mutilation (FGM), coercive population control (CPC) in the form of forced abortions and forced sterilizations, rape, forced marriage, and domestic violence. The Circuit Courts have reviewed appeals from petitioners with asylum claims since 1946, yet the language of trauma did not appear in the Court’s decisions until 1983. From 1983 to 2023, only 385, 3.85% or less, of the over 10,000 asylum cases before the Circuit Courts used the language of trauma in its legal interpretation of persecution. I have identified 101 gender-based asylum cases that were reviewed by one of the eleven U.S. Circuit Court of Appeals that apply the language of trauma in its legal interpretation of persecution for this analysis. The research question guiding this study is: how does the U.S. Circuit Court of Appeals use the language of trauma when reviewing gender-based asylum cases? This study found that U.S. Circuit Courts use the language of trauma in four ways: precedent cases, policies and reports, physical trauma, and psychological trauma when reviewing gender-based asylum claims. This study provides the first data set of gender-based asylum claims under review at the U.S. Circuit Court of Appeals that use the language of trauma.

Zedra Fiduciary Services (UK) Ltd v Attorney General: the contemporary Scope of the Statutory Cy‐près Doctrine

Historically, the cy‐près doctrine required that, upon the substantive alteration of a charitable trust, the new purposes should be ‘as near as possible’ to the old. This is no longer the case. Subject to section 67(3) of the Charities Act 2011, the redrafting court or Charity Commission must have regard to factors other than proximity of purpose. Zedra Fiduciary Services (UK) Ltd v Attorney General is the first high‐level authority to consider the meaning of the statute, and, with it, the scope of the contemporary statutory cy‐près doctrine. This note argues that the Court of Appeal read down the statutory factors conservatively, prioritising fidelity to the original objects of the trust. The note considers the method of the Court and suggests that a more creative approach might have been taken. Finally, the note considers the impact of the authority on the Charity Commission's routine, day‐to‐day cy‐près casework .

The system of administrative courts of the Federal Republic of Germany: organization and functioning

The article is devoted to the organization and functioning of administrative courts of general and special jurisdiction in the Federal Republic of Germany. Administrative justice in Germany is an independent branch of judicial power. It is represented by administrative courts of general and special jurisdiction and is separated from constitutional, general courts and courts of labor disputes.
 The system of administrative courts of general jurisdiction in Germany covers three levels: the administrative courts, the higher administrative courts of the states and the Federal Administrative Court in Leipzig. The administrative court is the court of first instance for most administrative proceedings. The higher administrative courts of the federal states are the appellate and cassation instance of the administrative courts. Each federal state has a Supreme Administrative Court, the states of Berlin and Brandenburg share a Supreme Administrative Court, which, with the exception of Bavaria, Saxony- Anhalt and the city-states, are not located in the capital of the state to emphasize their independence from the administration in terms of location. Higher administrative courts are courts of first instance in cases of judicial review of laws and regulations, prohibition of associations by state bodies, and approval of implementation of certain infrastructure projects. The Federal Administrative Court, located in Leipzig, is the court of appeal and cassation on matters of law. The legislature also gave the Federal Administrative Court first-instance jurisdiction in public law disputes between the federal government and non-constitutional Länder, bans on mergers by the Federal Minister of the Interior or approvals for certain infrastructure projects. In these cases, the Federal Administrative Court has jurisdiction of both first and last instance.
 A feature of administrative justice in Germany is the presence of special courts of administrative justice – financial and social courts with appropriate organization and functioning. The issue of the status of judges of administrative courts, non-professional judges, representatives of public interest, judicial administration, competence and jurisdiction was considered.

Blessings: when worlds collide

Abstract For over 100 years, the English Courts have entertained applications by trustees for directions, including to bless proposed “momentous” exercises of powers. Recently, this jurisdiction has extended through judicial decisions to corporate office-holders. The jurisdiction has received increasing scrutiny, not least in relation to the vexed question of immunity, resulting in the Court of Appeal’s recent decision in Denaxe Ltd v Cooper [2023] EWCA Civ 752, a case concerning Blackpool Football Club. This article considers the jurisdiction’s origins and expansion, before concluding that there are cogent reasons for its continued existence in relation to both trusts and the corporate sphere.

UK Court of Appeal Confirms CMA Powers to Require Production of Documents from Non-UK Companies

UK Court of Appeal Confirms CMA Powers to Require Production of Documents from Non-UK Companies

Interpreting Statutes in a Manner Consistent with Seychelles’ International Obligations: Analysing the Court of Appeal’s Decision in The Anti-Corruption Commission of Seychelles v Laura Valabhji (2023)

Abstract The Constitution of Seychelles requires courts, when interpreting the Charter of Human Rights, to take judicial notice of human rights treaties. However, a similar obligation is not imposed on courts when interpreting legislation. Before the case of The Anti-Corruption Commission of Seychelles v Laura Valabhji (18 December 2023), the Court of Appeal had never held that courts are obliged to interpret statutes to conform to Seychelles’ international obligations. The Court rejected a literal approach to statutory interpretation and favoured a purposive approach to justify its reliance on an international treaty when interpreting the Anti-Corruption Act. In this article, the author argues that the Court’s decision in Anti-Corruption Commission of Seychelles v Laura Valabhji has three challenges: it did not explain the meaning of international obligations; its reliance on Indian and Sri-Lankan cases as a source of common law for Seychelles ignores, not only the Interpretation and General Provisions Act, but also the distinction between foreign cases as a source of common law and foreign cases from common law countries as persuasive authorities; and finally, its failure to define ‘control’ has the effect of expanding the powers of the Anti-Corruption Commission beyond what was envisaged by the legislature.

False Statement or Omission Penalties in Canadian Tax Law

This article examines the judicial interpretation of subsection 163(2) of the Income Tax Act, which penalizes taxpayers for false statements or omissions arising from "knowledge" or "gross negligence." The article specifically focuses on the Federal Court of Appeal's decision in <i>Canada v. Paletta</i>, arguing that courts have inappropriately broadened the scope of the wilful blindness doctrine while insufficiently addressing the aspect of gross negligence. The author advocates for a narrower application of wilful blindness, consistent with other areas of law, and an expanded interpretation of gross negligence. This approach, through the incorporation of a "cluster of ideas" framework, would provide greater certainty and fairness for taxpayers, tax practitioners, and the Canada Revenue Agency in determining culpability for false statements and omissions. The author proposes a novel analytical framework for the interpretation of subsection 163(2), considering factors such as risk and consequences, wilful intent, culpable inadvertence, and departure from a standard of care. This framework is designed to guide courts in assessing taxpayers' conduct with a more balanced approach that more closely aligns with Parliament's legislative intent. Finally, the author underscores the importance of maintaining a clear distinction between wilful blindness and gross negligence in tax law, suggesting that this clarity will enhance the competitiveness and predictability of Canada's tax system, and better guide taxpayers in managing tax-related risks.

Briefly Noted

The European Court of Human Rights (ECtHR) handed down a unanimous decision on November 23, 2023, in a case brought by former Polish President Lech Walesa against the Polish Government. The Court concluded that a Polish Appeals Court, the Chamber of Extraordinary Review and Public Affairs (CERPA), had violated Walesa's right to an independent and impartial trial, breached “the principle of legal certainty,” and violated his right to respect for private and family life. The Court found that the CERPA “was not an ‘independent and impartial tribunal established by law’” and was often used by the state to “further its own political opinions and motives,” as the Prosecutor General of Poland and the Executive branch of government held considerable influence and authority over the judicial system. Additionally, the 2017 law that created the CERPA gave to the General Prosecutor “the unlimited power to contest virtually any final judicial decision” and extended the time limits for filing appeals, which enabled the Prosecutor to act retroactively and undermine the “requirement of foreseeability.”