Court's Rejection Research Articles

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 While this is a positive step, the Court's decision may be limited by the flawed and outdated modified per se rule used to evaluate tying arrangements generally.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.

Supreme Court holds that the federal securities laws implicitly preclude application of the antitrust laws to the underwriting of initial public offerings

PurposeThe purpose of this paper is to describe the background and reasoning behind the June 18, 2007 US Supreme Court decision in Credit Suisse Securities (USA) v. Billing et al.Design/methodology/approachThe paper explains the US District Court for the Southern District of New York's dismissal of two antitrust class action lawsuits filed against a group of investment banks in 2002, the reversal by the US Court of Appeals for the Second Circuit in 2005, and the Supreme Court's rejection of the Second Circuit's analysis in 2007.FindingsThe Court found that, due to the specialized knowledge required to parse the SEC's rules and distinguish permissible from prohibited conduct, there was a “serious risk” that antitrust courts would produce inconsistent results. The Court also expressed a concern that allowing antitrust claims here would weaken the heightened pleading requirements in the Private Securities Litigation Reform Act, which Congress passed to weed out “umeritorious securities lawsuits.”Practical implicationsThe decision undoubtedly will have important implications regarding the extent to which the antitrust laws may be applied to other conduct regulated by the securities laws, or in the context of other regulated industries.Orginality/valueThe paper provides practical interpretation and guidance by experienced securities lawyers.

Will California Restrict Cloned Animals as Food?; Judge Orders Review of Herbicide-Tolerant Grass Test; British High Court Rejects View That Food Standards Agency Did Not Do Enough Against Liberty Rice; UN Wants Nanotechnology Controls; Syngenta Land in Brazil to Be Expropriated; African Leaders Propose Common Approach to Encourage Use of Biotechnology in Agriculture; U.S. Farm Subsidies Complained of at WTO

Biotechnology Law ReportVol. 26, No. 2 Regulatory Affairs—Agricultural and EnvironmentalWill California Restrict Cloned Animals as Food?; Judge Orders Review of Herbicide-Tolerant Grass Test; British High Court Rejects View That Food Standards Agency Did Not Do Enough Against Liberty Rice; UN Wants Nanotechnology Controls; Syngenta Land in Brazil to Be Expropriated; African Leaders Propose Common Approach to Encourage Use of Biotechnology in Agriculture; U.S. Farm Subsidies Complained of at WTOPublished Online:30 Apr 2007https://doi.org/10.1089/blr.2007.9967AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail "Will California Restrict Cloned Animals as Food?; Judge Orders Review of Herbicide-Tolerant Grass Test; British High Court Rejects View That Food Standards Agency Did Not Do Enough Against Liberty Rice; UN Wants Nanotechnology Controls; Syngenta Land in Brazil to Be Expropriated; African Leaders Propose Common Approach to Encourage Use of Biotechnology in Agriculture; U.S. Farm Subsidies Complained of at WTO." , 26(2), pp. 125–126FiguresReferencesRelatedDetails Volume 26Issue 2Apr 2007 InformationMary Ann Liebert, Inc.To cite this article:Will California Restrict Cloned Animals as Food?; Judge Orders Review of Herbicide-Tolerant Grass Test; British High Court Rejects View That Food Standards Agency Did Not Do Enough Against Liberty Rice; UN Wants Nanotechnology Controls; Syngenta Land in Brazil to Be Expropriated; African Leaders Propose Common Approach to Encourage Use of Biotechnology in Agriculture; U.S. Farm Subsidies Complained of at WTO.Biotechnology Law Report.Apr 2007.125-126.http://doi.org/10.1089/blr.2007.9967Published in Volume: 26 Issue 2: April 30, 2007PDF download

Federal Court Rejects Overtime Claims of Table Game Supervisors

Gaming Law ReviewVol. 11, No. 2 Original PapersFederal Court Rejects Overtime Claims of Table Game SupervisorsJane M. McFetridge and Joel W. RiceJane M. McFetridgeSearch for more papers by this author and Joel W. RiceSearch for more papers by this authorPublished Online:4 May 2007https://doi.org/10.1089/glr.2007.003AboutSectionsPDF/EPUB ToolsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail FiguresReferencesRelatedDetails Volume 11Issue 2Apr 2007 InformationMary Ann Liebert, Inc.To cite this article:Jane M. McFetridge and Joel W. Rice.Federal Court Rejects Overtime Claims of Table Game Supervisors.Gaming Law Review.Apr 2007.103-107.http://doi.org/10.1089/glr.2007.003Published in Volume: 11 Issue 2: May 4, 2007PDF download

The First Judgement of the Special Court for Sierra Leone: A Missed Opportunity?

AbstractOn 29 June 2007, the Special Court for Sierra Leone – a criminal tribunal created by an agreement between the United Nations and Sierra Leone – rendered its first judgement. The three accused, all senior members of a military junta which had ousted the elected government, were amongst other things found guilty of "new" international crimes, such as using child soldiers and collectively punishing the civilian population. This note critically analyses the achievements and shortcomings of what can be seen as a landmark ruling in international criminal law. It discusses the court's rejection of a separate crime of "forced marriages" as well as the application of "effective control" in terms of responsibility of a superior in the context of an "African conflict". Finally, this note examines the treatment of defective pleadings in the indictment in relation to particulars, crimes committed by the accused in person, and the existence of a joint criminal enterprise. It will be demonstrated that the judgement is of significance not only for assessing the success of the Special Court for Sierra Leone, but also for future criminal trials dealing with similar charges.

Supreme Court Rejects Exclusionary Rule and New Trials as Remedies for Failures of Consular Notification

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Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment

In 2005, two events garnered great national attention: the controversy over the death of Terri Schiavo and the destruction of New Orleans by Hurricane Katrina. Although each event was compelling and even tragic, only the former, which focused on whether a single individual would be removed from life support, was widely understood as implicating constitutional questions. Using a population-based perspective that is influenced by the discipline of epidemiology and focuses attention on both the interests of and the impact of law on populations, this Article analyzes why a controversy concerning the life and death of one woman was understood as raising questions of constitutional law while the failure to protect thousands was not viewed as such. The Article begins reviewing the courts' embrace of an individualistic right-to-reject treatment in cases such as Cruzan v. Director, Missouri Department of Health and contrasting that embrace with the Supreme Court's rejection, in cases such as DeShaney v. Winnebago County Department of Social Services, of any broad right to care and protection. Taken together, these cases demonstrate that contemporary constitutional law fails to appreciate the interdependency of risk and the social and population context in which health threats, and treatment decisions, arise. As a result, the rights vindicated in cases such as Cruzan and Schiavo are particularly shallow as they cannot provide either individuals or populations (such as that in New Orleans) with the opportunity to make meaningful risk-reducing choices. In addition, because of the influence of constitutional discourse in our society, the shallowness of constitutional rights spills over to influence political and legislative priorities. Hence, the fact that the population of New Orleans had no legally recognizable constitutional right to protection against hurricanes may have abetted the government's failure to protect the city's residents. Likewise, a constitutional discourse that focuses on the plight of a single woman while overlooking the multitude of problems faced by large populations may reinforce the political system's failure to protect populations from other potential natural disasters, such as a potential influenza pandemic.

Recent Rulings Weaken Neutral Reportage Defense

This review of recent rulings shows a fair amount of hostility among judges toward claims of neutral reportage, leaving media lawyers hesitant to pursue this libel defense.

Appeals Court Rejects Federal Jurisdiction over Chiropractors Challenge to Medicare Coverage – Am. Chiropractic Ass'n, Inc. v. Leavitt

The United States Court of Appeals for the District of Columbia Circuit (“Appeals Court”) held that the district court did not have jurisdiction over the American Chiropractor's Association's (“ACA”) federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance for elderly and disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization (“HMO”).

Michelin II: A Per Se Rule Against Rebates by Dominant Companies?

In its Michelin II judgment of September 2003, the CFI found that Michelin breached Article 82 EC by setting up a system of rebates that could potentially induce loyalty and exclude its competitors. This paper comments extensively on Michelin II and other cases, with a focus on what sort of competition policy is desirable as regards rebates by dominant companies. Contrary to Michelin II, pricing policies of dominant companies which are not linear and not strictly reflecting economies of scale are not necessarily anticompetitive and may indeed have significant pro-competitive effects. Furthermore, a requirement that a rebate scheme be economically justified is very difficult to apply in practice, and the Court should not have put the burden of proof for the justification of quantitative rebates upon the dominant company. Most preoccupying is the Court's rejection of the effect criterion when deciding on the legality of a rebate: Such an approach, which differs markedly from US and UK law as well as from the OECD report on fidelity discounts, will generally result in a disproportionate per se-prohibition of any pricing behaviour and in economic inefficiencies. A fairer and clearer approach could therefore distinguish between rebates that are per se allowed and other rebates that ought to be prohibited only if they have effects on the market.

Supreme Court's Rejection of “Headquarters Doctrine” Under FTCA

Supreme Court's Rejection of “Headquarters Doctrine” Under FTCA

Lesbian and Gay Refugees in Australia: Now that 'Acting Discreetly' is no Longer an Option, will Equality be Forthcoming?

This paper will analyse a recent decision of the Australian Refugee Review Tribunal in which a young gay Iranian man was denied refugee status on the basis that he could avoid persecution in Iran by ‘acting more discreetly’ and by leading a less ‘public’ sexual profile. Contrasting this decision with a recent decision of the High Court of Australia in which the ‘discretionary option’ was explicitly rejected by a majority of the Court hearing the case of two gay Bangladeshi men, this paper will highlight that the reasoning used by the Tribunal misunderstands the nature of sexuality-based discrimination and offers a line of reasoning that is central to ensuring the types of inequalities and biases that are at the heart of sexuality-based discrimination and that perpetuate the inequalities which international human rights instruments seek to eradicate. While applauding the High Court's rejection of the ‘discretionary option’ used by the Refugee Review Tribunal, this paper will argue that a much stronger understanding of the sex equality implications of the Tribunal's decisions in this regard is needed if lesbian and gay refugee claimants are to find real protection in Australia. Some have criticised the High Court's latest judgment on lesbian and gay refugees as ‘interventionist’, even ‘radical’. These critics do so because they fail to recognise what homophobia is and what the demands of equality require of the Court in its interpretation of the Convention Relating to the Status of Refugees. Overall, it will be argued that, applying a sex equality analysis of anti-lesbian and anti-gay discrimination, it is clear that, while the High Court has now recognised the errors of discretion, it has yet to find the voice that true systemic equality demands.

The Escalating Copyright Wars

Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based music service, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's relative success in its mass litigation campaign. Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, technology developers, and intellectual property rightsholders. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it eventually might lose the war. Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, self-help, education, and licensing. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.

Member State Liability and Constitutional Change in the United States and Europe

In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as implicit in the constitutional design. Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union. This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ's jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court's decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court's rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland. The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ's evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.

The Search for Equality in Criminal Sentencing

For the last two terms, the United States Supreme Court has been rocked by the aftershocks of two independent yet equally significant criminal sentencing revolutions. The first, brought on by the Court in the 1970's, was the constitutionalization of capital sentencing procedures pursuant to the Eighth Amendment. This death-penalty jurisprudence had the laudable goal of attempting to reduce discrimination in the selection of those defendants to receive the ultimate penalty. A concurrent revolution with a similar goal occurred in the non-capital area. In 1984, Congress passed the Federal Sentencing Act to reduce discrimination and other disparities in criminal sentencing for non-capital cases. These efforts to enhance equality in capital and non-capital criminal sentencing have not been discussed together in the academic literature. We trace this parallel development in the capital and non-capital arenas and evaluate their success in ensuring equality. We conclude that for non-capital sentencing this revolution has enjoyed considerable success in ensuring similar treatment for similarly situated defendants. Moreover, a determinate sentencing system fosters democracy and transparency in sentencing decisions. The capital sentencing revolution, on the other hand, has been a dismal failure. State schemes have not significantly reduced sentencer discretion at the penalty phase of capital trials, and the results of such schemes have not been demonstrably more consistent than those obtained in the era preceding federal judicial regulation. The most recent threat to equality in sentencing in the non-capital context was the Court's decision in Apprendi v. New Jersey, that any fact, other than a prior conviction, increasing the prescribed maximum penalty for an offense must be found by a jury beyond a reasonable doubt. The broadest application of this rule would have foreclosed the Federal Sentencing Guidelines and their state guideline counterparts, because it is too cumbersome to have juries make all factfindings necessary to apply the guidelines, and because juries cannot be relied upon to implement such guidelines in a consistent fashion. The Court's rejection of this broad Apprendi theory last term in United States v. Harris insures the continued viability of determinate sentencing in the non-capital context. On the capital side, a guideline-like approach is unlikely to secure meaningful equality across cases. Thus, the Court's extension of the Apprendi rule, in Ring v. Arizona, to aggravating circumstances in capital cases will not undermine reform. Additionally, there are independent reasons in the capital arena to prefer jury to judge sentencing, such as sustaining the connection between the community and those imposing the death penalty. We conclude with comments regarding the tension between equality norms and jury sentencing. The Court's decisions in Apprendi, Harris, and Ring reflect an appropriate accommodation of these competing norms.

Member State Liability and Constitutional Change in the United States and Europe

In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as implicit in the constitutional design. Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union. This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ's jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court's decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court's rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland. The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ's evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.

Wisconsin Court Rejects Attempt To Narrow Commitment Law

Wisconsin Court Rejects Attempt To Narrow Commitment Law

The Untold Drafting History of Buckley v. Valeo

Although scholars have explored innumerable aspects of the Supreme Court's landmark opinion in the 1976 campaign finance case of Buckley v. Valeo, 424 U.S. 1 (1976), one area left virtually unexplored is the case's drafting history. This article provides a chronology of the internal deliberations of the Court from the time of the post-argument conference to the issuance of the decision on January 30, 1976. It concludes with some thoughts on what the drafting history tells us about the Court's rejection of the equality rationale for campaign finance regulation.The drafting history reveals the following interesting points about the case:(1) Justice Stewart wrote the crucial portion of the opinion upholding campaign contribution limits but striking down limits on campaign expenditures. Justice Powell wrote the section on campaign finance disclosure, Justice Brennan wrote the section on the public financing provisions for presidential elections, and then-Justice Rehnquist wrote the section on the unconstitutionality of the manner in which the Federal Election Commission was constituted. Chief Justice Burger wrote the introduction to the opinion; (2) Initially, Justices Brennan and Marshall agreed with Justice White that the provision limiting to $1,000 independent expenditures supporting or opposing candidates for federal office was constitutional. These Justices appeared to change their minds out of concern over the law's vagueness, not because of a belief that the First Amendment prohibited limits on campaign expenditures; (3) Footnote 52 of the opinion, which has provided the basis for the rise of soft money and issue advocacy, came late in the drafting process; and (4) The Court seemed well aware the new law, as it interpreted it, would not be very effective and even used this ineffectiveness as a reason to strike down the expenditure limits. But the Court seemed unaware that the late-added footnote 52 would have such an impact on electoral politics.

The Search for Equality in Criminal Sentencing

For the last two terms, the United States Supreme Court has been rocked by the aftershocks of two independent yet equally significant criminal sentencing revolutions. The first, brought on by the Court in the 1970's, was the constitutionalization of capital sentencing procedures pursuant to the Eighth Amendment. This death-penalty jurisprudence had the laudable goal of attempting to reduce discrimination in the selection of those defendants to receive the ultimate penalty. A concurrent revolution with a similar goal occurred in the non-capital area. In 1984, Congress passed the Federal Sentencing Act to reduce discrimination and other disparities in criminal sentencing for non-capital cases. These efforts to enhance equality in capital and non-capital criminal sentencing have not been discussed together in the academic literature. We trace this parallel development in the capital and non-capital arenas and evaluate their success in ensuring equality. We conclude that for non-capital sentencing this revolution has enjoyed considerable success in ensuring similar treatment for similarly situated defendants. Moreover, a determinate sentencing system fosters democracy and transparency in sentencing decisions. The capital sentencing revolution, on the other hand, has been a dismal failure. State schemes have not significantly reduced sentencer discretion at the penalty phase of capital trials, and the results of such schemes have not been demonstrably more consistent than those obtained in the era preceding federal judicial regulation. The most recent threat to equality in sentencing in the non-capital context was the Court's decision in Apprendi v. New Jersey, that any fact, other than a prior conviction, increasing the prescribed maximum penalty for an offense must be found by a jury beyond a reasonable doubt. The broadest application of this rule would have foreclosed the Federal Sentencing Guidelines and their state guideline counterparts, because it is too cumbersome to have juries make all factfindings necessary to apply the guidelines, and because juries cannot be relied upon to implement such guidelines in a consistent fashion. The Court's rejection of this broad Apprendi theory last term in United States v. Harris insures the continued viability of determinate sentencing in the non-capital context. On the capital side, a guideline-like approach is unlikely to secure meaningful equality across cases. Thus, the Court's extension of the Apprendi rule, in Ring v. Arizona, to aggravating circumstances in capital cases will not undermine reform. Additionally, there are independent reasons in the capital arena to prefer jury to judge sentencing, such as sustaining the connection between the community and those imposing the death penalty. We conclude with comments regarding the tension between equality norms and jury sentencing. The Court's decisions in Apprendi, Harris, and Ring reflect an appropriate accommodation of these competing norms.

Rejecting Radbruch: The European Court of Human Rights and the Crimes of the East German Leadership

The European Court of Human Rights found no violation of the Convention in its judgement in the complaints of the former East German political and military leaders Streletz, Kessler, and Krenz. All three were convicted and sentenced to terms in prison by German courts in relation to the deaths of East Germans who were killed in attempts at fleeing across the fortified border between East and West Germany. Nonetheless, the Court's decision constitutes a clear rejection of the Radbruch Formula, which served as a central line of reasoning in the decisions of the German courts in the cases. The author addresses the Court's rejection of the Radbruch Formula, focusing especially on the distinct historical and political circumstances that existed after World War II and in 1989.