Court Grants Research Articles

Parental kidnapping as a form of abuse of parental rights

The article explores the legal phenomenon of “parental kidnapping”. It is noted that Ukrainian legislation lacks a definition of this legal phenomenon. The author suggests understanding parental kidnapping as the action of one of the parents regarding the unauthorized change of the child’s place of residence without the consent of the other parent with whom, according to the law or a court decision, the child resides. This includes abduction, leading to a violation of the child’s rights and causing material or non-material harm. Statistical data from the Secretariat of the Commissioner for Human Rights of the Verkhovna Rada of Ukraine for 2022–2023 regarding the number of parental requests for the unauthorized change of the child’s place of residence by one of the parents is provided. The legislative regulation of this legal phenomenon and the peculiarities of holding parents accountable for such abuse of parental rights in Ukraine are analyzed. Ukrainian legal practitioners categorize the actions falling under the concept of “parental kidnapping” as domestic violence against the child in the form of psychological violence, especially towards the other parent with whom the child lived before the abduction. In cases where there are signs of physical injuries on the child, physical violence against the abducted child is also considered. The legal positions of Ukrainian courts in cases of parental kidnapping are discussed. Generally, since there is no legal provision specifying responsibility for such actions, in cases where the evidence presented by the plaintiff parent proves that the other parent changed the child’s place of residence without authorization, the court grants the plaintiff parent’s claim for the return of the child. Proposals are formulated for measures that need to be implemented to prevent, counteract, and legally hold accountable for parental kidnapping.

Courts-First Federalism: How Model Legislation Becomes Impact Litigation

States and interest groups are facilitating a redistribution of government powers under a new courts-first federalism. States are working to claw back powers while interest groups drafting model laws strategically tailor them to skirt the limits of federal law and, once adopted by states, prompt federal courts to review them as parties litigate to clarify their rights. States do not need to be completely successful in litigation to shift the balance of state–national power. Testing this argument, we find that the US Supreme Court grants review to 17% of model laws in our sample produced by the American Legislative Exchange Council (ALEC), whereas merely 1% of other cases are granted certiorari. Ultimately, the states and ALEC were partly successful in constraining federal power. Thus, the combination of model legislation, impact litigation, and courts-first federalism becomes a tool for states to draw power to themselves and from the federal government.

The Road Not Taken

Many asylum cases present an opportunity for the European Court of Justice to promote and protect EU values such as human rights and the rule of law. Yet, in central issues on the EU asylum system, the Court has opted for careful and formal readings of law rather than exploring such perspectives. The Court’s legal reasoning in asylum is examined by case analyses in NF v Council on the EU-Turkey Statement, X and X on humanitarian visas, and A.S. and Jafari on the EU asylum system. In free movement, the Court is considered a key driver of integration, whereas, in asylum law, it is seen as more restrictive. Rather than promoting EU integration and ensuring human rights protections, the Court grants discretion to the legislator or the executive. There are legitimate reasons why a different path has been taken in asylum. However, as a more extensive and dynamic method of interpretation could increase human rights protections, it is relevant to reassess the position of the Court in asylum law.

An Analysis of Harta Sepencarian Cases in the Syariah High Court of Ipoh

Disputes over matrimonial assets, or harta sepencarian, as it is commonly known in Malaysia, are among the financial cases filed in the Syariah High Court of Ipoh. Although there are specific provisions in the Islamic Family Law Enactment (Perak) 2004 on the division of harta sepencarian, there are some questions, particularly regarding the judicial approach used by judges in determining which parties are entitled to make claims, categories of assets that are considered to be part of harta sepencarian, the interpretation of matters related to the direct and indirect contribution, as well as the proportion of distribution of the assets. This study applies document analysis techniques by referring to the files of the related cases recorded from 2011 - 2016 at the Syariah High Court of Ipoh, and also cases that were reported in law journals as a basis for comparison to clarify the issues discussed. The findings show that although the decisions of the Syariah High Court of Ipoh on issues raised in such cases are not much different from what is decided in the cases reported in the law journals or other Syariah Courts in Malaysia, there are several other aspects, namely on the matter of EPF savings, gratuity, and insurance compensation, where the decisions held by the Syariah High Court of Ipoh are different from existing fatwas (legal opinions on Islamic law) and approaches taken by other Syariah Courts in Malaysia. The different approaches are also noted in cases where the disputing parties have children. Although the rights of disputing parties are properly considered in deciding the cases, in certain cases priority is given to the welfare of the children, and the Court grants property rights to the children.

Social Imagery and Judicial Legitimacy: Evidence From Evangelical Christians

Extant research reveals that Americans hold politically consequential beliefs about the demographic composition of political groups and organizations—even when these beliefs are at odds with objective reality. In this article, we investigate the social imagery of the U.S. Supreme Court, with particular attention to beliefs about the Supreme Court Justices’ religious identities. In survey analysis, we find that evangelicals who believe there are more evangelical Christians on the Court grant the Court more legitimacy compared to non-evangelicals. Further, when evangelical Christians believe there are more atheists on the Court, they view the Court less legitimately than non-evangelicals. To rule out the potential of endogeneity, we conduct a conjoint experiment which demonstrates that evangelicals believe evangelical judges will increase the fairness of the Court and are more likely to support evangelical nominees compared to the average nominee. Likewise, they tend to believe out-group judges will harm the fairness of the Court and are less likely to support out-group judges. Our results have implications for diversity on the Court and how non-ideological factors can affect the Court’s legitimacy.

Whose Margin of Appreciation? Analyzing Its Significance in European Human Rights Jurisprudence

In legal theory but also in the case law of the European Court of Human Rights, there is an undisputed consensus that the margin of appreciation represents a certain “room for manoeuvre” that the Court grants to national authorities when assessing their behaviour before it is prepared to find that a violation of rights has indeed occurred. Moreover, it is often argued in legal theory that the margin of appreciation is a method of interpreting the Convention. Although these claims are widely accepted and well-founded, in recent years, various authors in legal theory have increasingly put forward assertions that the margin of appreciation has another “hidden” role in the Court's case law, namely, that it is a judicial tool through which the Court increasingly tries to create room for manoeuvre in decision-making. In this paper, the author will build on this theory of the margin of appreciation as a judicial tool aimed at giving the Court room for manoeuvre. The goal of the paper is to test the thesis on the margin of appreciation as a judicial tool aimed at leaving a certain manoeuvring space for the Court itself in decision-making, using the method of conceptual analysis and the case study method. Following that, the author will approach the analysis of factors that provide an explanation for why the idea of leaving manoeuvring space for the Court itself in decision-making and argumentation may be appealing to the Court.

Business Valuation Cases in Brief

Business Valuation Cases in Brief

Pencatatan Perkawinan Beda Agama di Indonesia

Law of Marriage which constitutes a product of Indonesian people regulating any aspects of marriage into a regulation for any Indonesian people, this is not to say that this regulation is perfect and away from any legal issues, one of which is interfaith marriage, with the uncertainty of interfaith marriage law in Marriage Law results in different verdict particularly in interfaith marriage registry in Indonesia. This study used a legal research method and this study used approach methods namely historical, conceptual and legislative approach. Legal entities used in this study include normative-primary, secondary, and tertiary legal entity which was applied in the manner of observation, collection and literary study of document either conventionally or through internet. Study results on interfaith marriage held in Indonesia suggested that neither the Religious Affairs Office (KUA) nor the Population and Civil Registry Office (Disdukcapil) shall accept it. Despite interfaith marriage in Indonesia has been set out in Law of Population Administration (Adminduk) and registered in Indonesia, as it is tied to stipulation outcome of District Court. Should the district court grant the request of interfaith marriage, then the Population and Civil Registry Office shall report interfaith marriage and otherwise.
 
 Keywords: Marriage Registry, Interfaith Marriage

Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy

The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.

The mechanism for applying the principle of interdependence between judicial and legislative jurisdictions

The study deals with the correlation between the judicial and legislative jurisdictions that are recognized in some private international law disputes. This requires considering the mechanism that competent court grants the scope to apply its original national law in a way that does not run counter to any foreign law. Through the survey of the national legislature's policy regarding the regulation of international private legal relations, it appears that the policy seeks to enhance the status of national law at the expense of foreign law, and this depends on the rule of conflict. The legislature's policy aims at replacing the rule of conflict with a specific mechanism aspired to unifying the legislative and judicial competencies. This mechanism is characterized as being biased, i.e, it is founded on the lack of parallelism between the interest of the foreign state and that of the national legislature. In this respect, the principle of independence methodology would be presented, which is deduced from the notion of trade-off among more than one law. In fact, this raises the problems of balancing between nationalism or privacy and internationalism or globalization.When examining such problems, several questions may arise: Does the systematic application of this mechanism mean stripping private international relations of the international status and giving them the national attribute to be regarded as any internal relation? Furthermore, is there in this application what achieves justice and respect for the rights of individuals and the realization of legal security? In conclusion, the study shows the importance of this correlation and its role in achieving a set of goals, such as the respect for sovereignty, public order, the pursuit of justice, and effectiveness in resolving conflicts, provided that it remains a mere exception that is subject to the achievement of these objectives, and that the prevailing principle is the independence of the two jurisdictions from each other.

A Juridical Analysis of Abroad Interfaith Marriage’s Position in Indonesia’s Law

The implementation of the registration of interfaith marriages abroad and the Population and Civil Registry Service in Indonesia currently does not exist. However, the Population and Civil Registry Office in Indonesia continues to carry out the registration of interfaith marriages held abroad by carrying out the registration of marriages of different religions through an application to the local District Court for marriage permits for prospective husbands and future wives. The purpose of this study is to determine the position of marriages of interfaith couples held abroad in the legal system in Indonesia and the implementation of registration of interfaith marriages held abroad and at the Population and Civil Registry Office in Indonesia. The study used Normative Juridical research methods. This method was used for research on issues related to the abroad interfaith marriage’s posistion in Indonesia’s law. The materials used as research objects of this approach method use primary, secondary, and tertiary legal materials. The Population and Civil Registry Service in Indonesia continues to carry out the registration of interfaith marriages held abroad by carrying out the registration of marriages of different religions through an application to the local District Court for marriage permits for prospective husbands and future wives with the consequences of various administrative requirements that must be submitted before the District Court grants in accordance with Law Number 23 of 2006 concerning Administration Residency must be registered with the competent authority in the local country and reported to the republic of Indonesia.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Concept of Specific Performance and the Rights of Plaintiff Claiming it under the Specific Relief Act, 1877

Specific performance of the contract is one of the equitable remedies developed in the Courts of Equity in England. The Court grants it by exercising its discretionary power. The Specific Relief Act, 1877 contains the cases where, and how specific performance will be granted and who will be entitled to claim the same. Since it has arose from the Law of Equity, the Court remains cautioned in applying discretion during scrutiny of the fact and circumstance so that neither the plaintiff nor the defendant has to face injustice. The aim of this paper is to understand the concept of specific performance and to address the plaintiff’s rights provided under this Act for seeking specific performance of contract in the appropriate Court of law. This paper shall also make an attempt to describe the discretionary power of the Court along with the relevant provisions regarding related to the specific performance of contract. Some judicial decisions will be cited to reflect the practical applications of these provisions in the Courts.

Mental capacity including testamentary capacity.

Mental capacity including testamentary capacity.

Pac. Biosciences of California, Inc. v. Oxford Nanopore Techs., Inc. United States Court of Appeals of the Federal Circuit, 2021 996 F.3d 134

Pacific Biosciences of California, Inc. (PacBio) sued Oxford Nanopore Technologies, Inc. and Oxford Nanopore Technologies, Ltd. (collectively, Oxford), accusing Oxford of infringing several of its patents, including U.S. Patent Nos. 9,546,400 and 9,772,323. The patents describe and claim methods for using technology to sequence DNA and other nucleic acids. A jury found all asserted claims infringed but also determined that they are invalid under 35 U.S.C. 112 for lack of enablement. The district court denied PacBio's motion for judgment as a matter of law (and for a new trial) on enablement. The district court also denied PacBio's request that the court grant a new trial because of Oxford's improper remarks during opening, remarks that included references to the potential applications of its accused products to the then-emerging global COVID-19 crisis. PacBio argued that the remarks caused prejudice that could not be remedied by the curative instruction the district court gave at PacBio's request. On appeal, the Federal Circuit affirmed. Regarding enablement, the court noted that it is not enough that relevant artisans knew how to perform some nanopore sequencing'' before the priority date of the patents, and that the jury had substantial evidence of non-enablement of the full claim scope. Notably, PacBio had no evidence of actual reduction to practice of its own that would undermine Oxford's evidence of non-enablement. As PacBio acknowledged, its reduction to practice was constructive only, i.e., took the form of its description in patent applications, without any accompanying real-world reduction to practice. The Federal Circuit did not see a basis for disturbing the district court's assessment that there was an insufficient likelihood that the improper opening remarks had an adverse impact on the ultimate verdict to justify a new trial in this case.

Family Drug Court grants available

In a re‐release of a December 2020 grant announcement, which includes some changes, the Department of Justice last week called for applications for funding under the Office of Juvenile Justice and Delinquency Prevention Family Drug Court Program. The program supports states and communities in the development and coordination of substance use intervention programs. There is now a two‐step process to apply. The Grants.gov deadline is June 22, which must be met in order to submit an application. This does not commit one to submitting an application. The JustGrants deadline is July 6. For more information, go to https://ojjdp.ojp.gov/funding/fy2021/O‐OJJDP‐2021‐92009.

High Court grants website blocking injunction in relation to sports streaming and reconsiders confidentiality of such orders

Case No: IL-2018–000155 Matchroom Boxing Ltd and another v British Telecommunications plc and others [2020] EWHC 2868 (Ch), 23 October 2020 The High Court of England and Wales granted Matchroom Boxing an additional website blocking injunction in relation to the unauthorized streaming of its upcoming boxing matches. Whilst this follows a series of other recent website blocking injunctions in relation to sports, the judge provided further input on whether such an order could be made wholly confidential. Matchroom Boxing Ltd (‘Matchroom Boxing’) is a promoter of boxing matches. As a result of a surge in unauthorized copyright streaming activities, Matchroom Boxing had previously sought a website blocking injunction against the six main retail internet service providers (ISPs) in the UK, pursuant to section 97A of the Copyright, Designs and Patents Act 1988. The purpose was to require the ISPs to take measures to block access to streaming...

Brief of Professors of Criminal Law and Criminal Procedure as Amici Curiae in Support of Petitioner in Carlisle V. Kentucky

Abstract Mr. Carlisle was a passenger in a vehicle stopped by a police officer for suspected vehicle equipment violations. The officer lacked reasonable suspicion, let alone probable cause, to suspect Mr. Carlisle was armed and dangerous, or that he was guilty of engaging in any criminal conduct. All that the officer knew was that Mr. Carlisle, a black man, was a passenger in a vehicle stopped for a minor traffic violation. Despite the absence of any fact-based justification for doing so, the officer demanded that Mr. Carlisle provide identification and ran a criminal background check. The Supreme Court of Kentucky held that police officers are automatically entitled to demand that a passenger like Mr. Carlisle provide identification and then to conduct background investigations of them merely because the passengers were riding in a motor vehicle stopped for a minor traffic violation. This approach—allowing police unregulated discretion to conduct criminal history checks of every vehicle occupant at every traffic stop, permits precisely the sort of arbitrary and unjustified government intrusions prohibited by the Fourth Amendment. By failing to impose even minimal Fourth Amendment standards, the Kentucky Supreme Court grants officers arbitrary authority to subject people to a seizure and search based solely on a hunch. In the absence of facts creating at least reasonable suspicion that passengers are engaged in criminal conduct, or reason to believe that they pose a threat to officer safety, requiring mere passengers to identify themselves and running criminal background checks on them unnecessarily extends the length of detention (a seizure for Fourth Amendment purposes) and exceeds the mission of a valid traffic stop. If allowed to stand, the Kentucky Supreme Court’s decision would permit officers to exercise arbitrary and unjustified authority in more than 1.5 million traffic stops conducted every month.

Employment Action Under the Americans With Disabilities Act

In Pena v. Honeywell Int'l Inc., 923 F.3d 18 (1st Cir. 2019), the First Circuit Court of Appeals affirmed a district court's grant of summary judgment in favor of an employer in an action brought under the Americans with Disabilities Act (ADA), 42 U.S.C. § 1210 (1990), where the employee had

Remedies, Analysed †

Abstract While an extensive literature exists on the nature and justification of particular remedies, such as compensation or restitution, the nature and justification of remedies in general is less well explored. This article reviews Stephen Smith’s Rights, Wrongs, and Injustices: The Structure of Remedial Law, which offers an account of the nature of remedies, why courts award them, and a taxonomy of the grounds of private law remedies. The article considers the following questions addressed or raised by the book: (i) What is a remedy? (ii) Why do courts grant remedies? (iii) What are the grounds of remedies? and (iv) Should remedial law be considered an area of law? Each section sets out and analyses Smith’s answers and some alternative views are outlined. For example, I sketch a different account of the concept of a remedy which is not restricted to rulings, refine the book’s account of the distinction between substantive and remedial law, and offer reasons to doubt that the grounds of remedies are fully reducible to wrongs, injustices and Right threats.