Court's Rejection Research Articles

US Supreme Court Rejects Form over Substance in Determining Creditability of Foreign Taxes

In this article, the author discusses the US Supreme Court decision in PPL Corp. et al. v. Commissioner of Internal Revenue (2013), where the Court found that the one-off tax levied on 32 public utilities privatized by the United Kingdom between 1984 and 1996 qualified for the foreign tax credit.

Zurcher v. Stanford Daily and the Court's Rejection of Special Press Rights

This brief Article discusses the U.S. Supreme Court’s decision in Zurcher v. Stanford Daily in particular, and the press’ First and Fourth Amendment rights vis a vis government searches of newsrooms in general.

State Immunity and Human Rights: Is There a Future after Germany v. Italy?

This article considers whether the recent decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) definitively draws the line under the question whether states enjoy jurisdictional immunity in cases involving allegations of human rights violations. The article first submits that the judgment is likely to foreclose the development of an exception to state immunity on the basis of the nature of the allegations alone. However, it argues that the Court's rejection of the so-called 'forum of last resort' exception to immunity may not be determinative. Rather, such an exception may still emerge in national and international courts mandated to assess the impact of the lack of alternative means available to address a claim on the right of access to a court. The article concludes with an assessment of the impact of the judgment on the availability of immunity ratione materiae to individuals in such cases. It offers analysis as to why immunity ratione materiae can be considered separately from that of the state in civil proceedings and explores whether the recognition of individual civil responsibility in international law could form a basis for an exception to immunity ratione materiae. © The Author (2012). Published by Oxford University Press. All rights reserved.

Class-Action Waivers, Binding Arbitration, and Access to Justice: The Vindication of Rights Doctrine after AT&T v. Concepcion

This paper argues that the vindication of rights doctrine, articulated most recently by the Court in Green Tree Financial Corp.- Alabama v. Randolph, has a historic basis in Anglo-American jurisprudence and is a key part of the Supreme Court's arbitration jurisprudence, making possible the Court's shift from distrust of arbitration of constitutional and statutory rights to trust. On this view, the vindication of rights doctrine survives Concepcion and remains capable of invalidating preclusive arbitration clause class-action waivers. Rather than, as some courts and commentators now suggest, abrogating or eviscerating the vindication of rights doctrine, Concepcion makes clear the Court's rejection of solutions like Discover Bank that would exempt broad categories of claims from arbitration's reach, and places an even greater impetus on the courts to police the development of arbitration as an adequate alternative to class actions through the vigorous enforcement of the vindication of rights doctrine.

The Sweet Taste of Defeat: American Electric Power Co v. Connecticut and Federal Greenhouse Gas Regulation

I. INTRODUCTION II. MASSACHUSETTS v. EPA AND ITS AFTERMATH A. The 2007 Opinion B. Regulatory Aftermath III. AMERICAN ELECTRIC POWER V. CONNECTICUT A. Impact on EPA's Clean Air Act Authority B. Potential Impact on Proposals to Amend Away EPA Authority IV. WHAT NEXT? REDUCING GREENHOUSE GASES THROUGH STATE PUBLIC NUISANCE ACTIONS V. CONCLUSION I. INTRODUCTION Despite increasingly dire warnings from scientists, the United States Congress has been unable to pass comprehensive legislation to reduce climate altering greenhouse gases. In the absence of new federal legislation, states, cities, and nonprofits have petitioned and sued administrative agencies to regulate pursuant to existing environmental laws. Under former President Bush, executive agencies largely rebuffed these efforts, prompting litigation by environmental plaintiffs. In response to judicial determinations and citizen petitions, as well as by virtue of its own policies, the Environmental Protection Agency under President Obama began regulating greenhouse gases pursuant to the Clean Air Act. Political and legal attacks followed swiftly, with opponents charging that the Agency had exceeded its mandate and politicians proposing legislation to incapacitate the Agency. Meanwhile, plaintiffs have also sued power producers in state and federal common law tort actions characterizing greenhouse gas emissions as a nuisance. This cause of action--which creates liability for an unreasonable interference with a right common to the general public (1)--was used to abate pollution long before the advent of the administrative state. (2) Although nuisance lawsuits are often viewed as a distinct predecessor to regulation under modern federal environmental statutes, this article argues that these common law actions can significantly influence development of a federal regulatory regime for greenhouse gases. In the midst of the battle over climate change regulation, the Supreme Court issued its 2011 decision in American Electric Power v. Connecticut (AEP) (3) holding that the federal common law nuisance cause of action relied upon by the plaintiffs had been displaced by the Clean Air Act. Many headlines touted the decision as a win for utilities, highlighting the Court's rejection of states' and environmentalists' claims against the five largest electricity generators in the United States. (4) Yet, such attention to the formal outcome missed the real import of the case. By strongly reaffirming the Court's 2007 decision in Massachusetts v. EPA, Justice Ginsburg's brief opinion strengthened the Environmental Protection Agency's (EPA's) authority to regulate greenhouse gases under the Clean Air Act. Moreover, because the Court held that displacement of nuisance claims under federal common law hinges on EPA's authority to regulate greenhouse gases, the decision impedes congressional Republicans' efforts to obstruct EPA's climate change efforts by amending the Act. Meanwhile, the Court did not decide whether or not the Clean Air Act preempts nuisance actions brought under state law, leaving intact another possible tort avenue for plaintiffs. By bolstering EPA's nascent efforts to regulate greenhouse gases, the decision appreciably advances the development of a federal regulatory regime to address climate change. Other aspects of the case--less a focus of this discussion--support environmental plaintiffs more broadly. By affirming the Second Circuit on jurisdictional questions, the American Electric Power opinion solidified the Court's 2007 holding in Massachusetts v. EPA that the injuries caused by climate change and their incremental redress provide an appropriate basis for standing to sue. In addition, the affirmance undermined claims (beginning to gain traction in some courts) that the political question doctrine prevents courts from reaching the merits of climate change suits. …

Common Cause in the Culture Wars?

A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

Federal Court Rejects Challenge to Insurance Mandate

Two recent challenges to the Affordable Care Act lack merit for consideration, finds a federal appeals court, while a district court deems the law unconstitutional.

Appeals Court Rejects Health Reform Law's Insurance Mandate

Back to table of contents Previous article Next article Government NewsFull AccessAppeals Court Rejects Health Reform Law's Insurance MandateJonathan WolfeJonathan WolfeSearch for more papers by this authorPublished Online:2 Sep 2011https://doi.org/10.1176/pn.46.17.psychnews_46_17_5AbstractA federal appeals court has ruled unconstitutional the provision of President Obama's health care reform law that would require all U.S. citizens to purchase health insurance coverage beginning in 2014. This decision by the U.S. Court of Appeals for the 11th Circuit follows a previous ruling by the 6th Circuit Court of Appeals, which voted in favor of the "minimum coverage" mandate in June (Psychiatric News, August 5). The appellate courts' contradictory findings suggest that the Supreme Court will be forced to weigh in with a final determination on the constitutionality of the Patient Protection and Affordable Care Act. "The ruling by the 11th Circuit is a significant blow but by no means the death of health care reform," said Robert Cabaj, M.D., chair of APA's Council on Advocacy and Government Relations. "The action is likely to lead to a full Supreme Court review sooner than originally thought, and that is likely a good step." In a 2-1 decision rejecting the individual coverage provision, Chief Judge Joel Dubina and Circuit Judge Frank Hull ruled that a health insurance mandate is a violation of congressional authority under the Constitution's Commerce Clause. "This economic mandate represents... the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," wrote Dubina. Despite the court's rejection of the Affordable Care Act's minimum coverage provision, Dubina and Hull ruled that the rest of the law is acceptable as written. This overturns the U.S. District Court for the Southern District of Florida's earlier ruling in the case, which deemed the individual mandate as not being severable from the rest of the law. The 11th Circuit's ruling is also notable in that Hull is a Democratic appointee of President Bill Clinton. Prior to the 6th Circuit's ruling in June, in which a Republican-appointed judge voted in favor of the mandatory insurance provision, federal court hearings on the Affordable Care Act resulted in decisions being made along the party lines of their respective judges. The suit was brought against the departments of Health and Human Services, Labor, and Treasury by the attorneys general of 26 states, as well as two private individuals and the National Federation of Independent Business. ISSUES NewArchived

Court Rejects Law Restricting Access to Prescribing Data

Court Rejects Law Restricting Access to Prescribing Data

Legal commentary

PurposeThe purpose of this paper is to discuss the High Court's rejection of claims made against a UK bank by a US‐based customer in relation to foreign exchange dealing it carried out as agent for its US affiliate based on common law and breaches of COBS Rules (BankLeumi (UK) plc v. Wachner, Queens Bench Division, Commercial Court; Mr Justice Faux).Design/methodology/approachThe paper discusses this action and counterclaim by the defendant.FindingsThe Judge did not find any of the three causes of action underlying the counterclaim to have any foundation, and he found the defendant liable for the full amount of the claim.Originality/valueThis paper draws attention to investors' attempts to shift trading losses onto the counterparties with or through whom they dealt through the use of common law, fiduciary principles or statutory tort claims. Such claims have no chance of succeeding unless the claimants can establish that they were incorrectly classified as an expert customer. Another point of interest to draw from this decision is to recall that product design and pre‐emptive restrictions on product innovation are once again a prominent feature of current debates on regulatory reform.

Far from the Final Stitch? American Needle and the Perpetuating Saga of the Single Entity Defense

For decades professional sports leagues have claimed the single entity defense as a means to avoid antitrust scrutiny under the Sherman Act. While Judge Easterbrook opened the door slightly in Chi. Prof'l Sports Ltd. v. NBA, this Comment analyzes the Supreme Court's outright rejection of the single entity defense in American Needle v. National Football League. It traces the relevant litigation through the federal district court, U.S. Court of Appeals for the Seventh Circuit, and Supreme Court levels. This Comment concludes by positing the implications of the Supreme Court's decision upon a number of interested groups: the NFL itself, professional sports leagues, and other industries and joint ventures.

U.S. Supreme Court Rejects Price Squeeze Claim: A High Point for Divergence between US and European Law?

The US Supreme Court’s decision in Pacific Bell Telephone Co. v. LinkLine Communications rejected price squeeze claims brought under Section 2 of the Sherman Act. In support of this holding, the majority cited concerns with maintaining a monopolist’s freedom of action necessary to promote competition and innovation. The Court majority also stressed the difficulties of administering a price squeeze test. The author challenges the Court’s reasoning on each of these points. The monopolist’s duty to deal in this case was unchallenged, as was the exclusionary effects of it’s behavior. The Court’s rejection of the price squeeze claim came at the expense of the underlying consumer welfare goals of the Sherman Act. The Court also turned aside an opportunity to adopt a workable price transfer test for assessing price squeezes by a dominant, vertically integrated firm, the same test that the European Commission applied in the Deutsche Telecom case. The LinkLine Court’s decision is consistent with a line of ideological decisions that are often poorly anchored to the facts of the case being decided.

Obama Administration Positions in the Aftermath of the Supreme Court's Rejection of the Bush Administration's Detention Policies at Guantamo

Obama Administration Positions in the Aftermath of the Supreme Court's Rejection of the Bush Administration's Detention Policies at Guantamo

New Jersey Court Rejects Application of Pollution Exclusion to Securities Claim under D&O Policy

New Jersey Court Rejects Application of Pollution Exclusion to Securities Claim under D&O Policy

US Supreme Court Rejects Price Squeeze Claim: A High Point for Divergence Between US and European Law?

Article US Supreme Court Rejects Price Squeeze Claim: A High Point for Divergence Between US and European Law? was published on August 1, 2009 in the journal Zeitschrift für Wettbewerbsrecht (volume 7, issue 3).

U.S. Supreme Court Rejects Bush Administration Position on Guantanamo Detainees: The Watershed of the Boumediene v. Bush Line of Cases

The line of four Supreme Court cases culminating in the 2008 decision in Boumediene v. Bush are a watershed in American jurisprudence as to the separation of powers and vitality of the writ of habeas corpus. The context was the status and treatment of persons captured primarily in the U.S. invasions of Afghanistan and Iraq and held at Guantanamo Bay, Cuba. Guantanamo was chosen by the Bush administration in the belief that the writ of habeas corpus could not reach outside the United States. The administration further maintained that the Executive had plenary power over the conduct of war, including capture and treatment of those whom it considered to be combatants. The Supreme Court decisions reflected caution in the exercise of judicial review as to sensitive matters of national security, but proceeded, in decision after decision, to limit or reject the administration's positions. The government's sovereignty-based test for habeas corpus was replaced by a pragmatic case-by-case approach. Further, the Court looked to a full range of sources applicable to the standards to be applied by a court on habeas corpus, recognizing the references to the Geneva conventions and international law principles in both the UCMJ and American law. Thus the Boumediene line of cases has strengthened the legal basis for limits on the power of the American government to detain alleged enemy combatants, expanded the availability of the writ of habeas corpus to challenge status and conditions of detention, and affirmed the applicability of the international law of armed conflict. The article ends with an evaluation of the legal standards after Boumediene as to such unresolved issues as the process now due to detainees in habeas proceedings; whether a writ of habeas corpus can be used to challenge not only designation and detention as an enemy but also other treatment; whether Boumediene applies to detainees held outside the U.S. other than at Guantanamo; the power of the government to hold persons in the U.S. without charges on the grounds that they are enemy combatants; whom the U.S. may hold as an combatant indefinitely until the end of hostilities without filing charges; and whether the new procedures for military commission trials adopted by the Military Commissions Act of 2006 (and as altered by further procedural safeguards by the Obama administration) meet the requirements of the U.S. Constitution and the Geneva Conventions.

Facial and As-Applied Challenges Under the Roberts Court

One recurring theme of the early Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to describe the contours of as-applied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of as-applied claims litigants can bring. This essay for a symposium on the future of public rights litigation assesses the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional rights litigation. I argue that the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence-with respect both to the Court's understanding of what constitutes an as-applied challenge, the scope of the Court's remedial authority to carve away a measure's unconstitutional dimensions, and strategic use of the facial versus as-applied distinction. In particular, despite some language to the contrary, the Court dos not appear to be excluding pre-enforcement as-applied challenges or require that specific applications of a measure be challenged one at a time, requirements that would mark a notable deviation from existing precedent and raise substantial impediments to asserting constitutional rights in federal court. What does set the Roberts Court apart is its understanding of the substantive scope of particular constitutional rights. Not surprisingly, that substantive understanding plays a major role in determining the Court's rejection (and acceptance) of facial challenges in different contexts. As a result, to the extent these decisions signal greater obstacles to assertion of certain constitutional rights in the federal courts, those obstacles likely result as much, if not more, from retraction in the substantive scope of those rights as from general jurisdictional rules regarding the appropriate form of constitutional adjudication.

Paint It Black: Rhode Island Supreme Court Rejects Lead Paint Nuisance Suit

During the past decade, state and local governments have increasingly brought suits to redress harm caused by products, including cigarettes, firearms, and toxins such as asbestos, lead paint, and even greenhouse gases, based not on the products liability or negligence theories conventionally applied, but on the public nuisance doctrine. Although the public nuisance doctrine potentially offers governmental plaintiffs more lenient standards with respect to issues like product and manufacturer identification, control of the product, proximate cause, and application of statutes of limitation, while limiting manufacturers' defenses, and has generated insurance claims and pressure to enter settlements, nearly all applications of public nuisance law to products claims have ultimately failed when heard by the courts on the merits. In February 2007, however, a Rhode Island trial court, in a groundbreaking decision, entered a judgment on a jury verdict imposing liability on three lead pigment manufacturers for creating a public nuisance, and ordered them to abate the nuisance in Rhode Island at a cost estimated to exceed two billion dollars. On July 1, 2008, the Rhode Island Supreme Court reversed the trial court's judgment against the lead paint manufacturers and held that the state attorney general's complaint should have been dismissed for failure to state a claim upon which relief could be granted. The state had not, and could not, allege facts sufficient to support a public nuisance claim, as the doctrine was construed in Rhode Island or nationally. Relief from the serious harms caused by lead paint was available only through specific Rhode Island legislation and products liability law, not the public nuisance doctrine. The Rhode Island Supreme Court's decision is consistent with recent decisions from other state courts, most notably opinions issued by the highest courts of New Jersey and Missouri during 2007, and has already influenced other public nuisance plaintiffs to abandon their lead paint suits.

Getting Right with Lincoln . . . and Black Freedom

1956, David Herbert Donald encouraged historians to with Abraham Lincoln by understanding how the memory of the sixteenth president had become a vessel for competing political ideologies. Donald described how, despite Lincoln's Republican roots, Democrats eventually recognized the political value of his image and set out to raid the Republican closet and steal the stovepipe hat. Although party politics dominated Lincoln's own lifetime, his legacy transcended those traditional divides. After his death, Radicals hailed Lincoln as the harbinger of democratic revolution in the South, black suffrage, and even women's rights. Decades later, imperialists insisted that he would favor annexation of the Philippines and war in Cuba. He was simultaneously a supporter and critic of populism and labor unions. Conservatives were convinced that, had he lived, he would fight the introduction of the income tax, while isolationists advanced his disapproval of the League of Nations and the World Court. It seemed that Lincoln was anything to everyone, which caused Donald to lament that his legacy risked becoming devoid of any real meaning.1 As Donald attempted to get right with Lincoln, the rest of the country struggled to get right with the end of legalized segregation. The Supreme Court's rejection of separate but equal schools and public accommodations two years earlier helped pave the way for local desegregation victories, first in Birmingham, and then in Little Rock. The post-Brown atmosphere crackled with the embers of a slow-burning movement that would soon engulf the entire country. Recognizing parallels between the 1960s and the 1860s, Donald believed Lincoln continued to resonate for mid-twentieth-century Americans faced with another crisis of national unity. In our age of anxiety, Donald wrote

Spilled Ink or Economic Progress? The Supreme Court's Decision in Illinois Tool Works v. Independent Ink

This article examines the Supreme Court's recent decision in Illinois Tool Works v. Independent Ink. In that decision, the Court extended its remarkable run of pro-defendant decisions in antitrust cases, holding that plaintiffs in patent tying cases must prove and not presume market power. The Court's rejection of the presumption of market power in the presence of a patent, as well as a special per se rule of illegality for patent ties is consistent with the broad consensus that views patents as distinct from monopolies, and recognizes the pro-competitive uses of tying. While this is a positive step, the Court's decision may be limited by the flawed and outdated modified per se rule used to evaluate tying arrangements generally. Moreover, while the Court undermined the underlying rationale for the modified per se rule against tying, it chose not to revisit this issue. In addition, while the Court's opinion implicitly adopts a robust standard for market power, it failed to address its contradictory holding in Kodak v. ITS, its most recent decision evaluating a tying arrangement.