Tendency Of Courts Research Articles

Os reflexos da pandemia do novo coronavírus na judicialização do direito à saúde perante o Supremo Tribunal Federal

Objective: to identify whether the pandemic situation interfered with the extent and way in which issues relating to the right to health were assessed by the Federal Supreme Court. Methodology: documentary research was carried out, which, after consulting the Federal Supreme Court database, with the filter using the term “health”, returned a total of 1,178 rulings, 447 from the pre-pandemic period and 731 from the pandemic period, which were analyzed and classified according to thematic relevance. After the classification stage discards, 70 rulings were identified in the pre-pandemic period and 167 rulings in the pandemic that effectively deal with the right to health. Results: the pandemic imposed numerous challenges on the health system, so that the Judiciary was urged to speak out in the face of the now established controversies. In these manifestations, it was identified that there was an increase in demands for concentrated control and in the absolute quantity of decisions involving the right to health, as well as that qualitatively, in general, the previous decision-making pattern was maintained, although new themes have emerged. Conclusion: the study concluded that the Supreme Court's tendency remains in favor of the recognition of health rights, using arguments such as the non-offense of the separation of powers and the impossibility of arguing on the possible reservation to prevent their granting. Submission: 01/29/23|Review: 10/24/23|Approval: 10/30/23

Reasonable Religious Accommodations

When Congress amended Title VII of the Civil Rights Act in 1972 to require employers to reasonably accommodate employees’ religious practices absent undue hardship, it intended to protect employees from being forced to choose between their jobs and their religious beliefs. Yet in the decades since, courts have cut away at this right to the point it is practically nonexistent. Particularly concerning is the growing tendency of courts to read the reasonableness requirement out of Title VII, either by conflating reasonableness and undue hardship so that an accommodation’s reasonableness depends solely on whether it would cause the employer undue hardship, by setting the bar for reasonableness so low it is practically meaningless, or by ignoring the requirement altogether. Consequently, employers today have near carte blanche over whether and how to provide religious accommodations—a power imbalance that often forces employees into the precise dilemma from which Congress sought to protect them. This Article argues for the restoration of employees’ right to reasonable religious accommodations. It does so by asserting that reasonableness under Title VII is a standalone requirement, separate and distinct from undue hardship, that must be evaluated from the employee’s perspective. An accommodation should be deemed reasonable to the employee only if it (1) fully eliminates the conflict between the employee’s job and religion, (2) does not cause the employee to suffer an adverse employment action, and (3) avoids unnecessarily disadvantaging the employee’s terms or conditions of employment. This conceptualization of reasonableness aligns with Congress’s intent and, if adopted, would help level the playing field between employers and employees in this increasingly critical area of law.

The European Court of Human Rights and International Environmental Law

This paper considers the relationship between international environmental law and the case law from the European Court of Human Rights which engages with environmental rights. The paper considers what impact the potential creation of a right to a healthy environment in international law might have on the Court’s case law in light of the Court's tendency to rely on international environmental rules in support of its reasoning. In light of this, the paper finds that the creation of a right to a healthy environment in international law might provide the Court with further impetus and support for developing its environmental rights case law. On the other hand, the fact that the Court has, through mildly activist means of interpretation, been able to accommodate modern concerns for environmental harms (notwithstanding the inherent limitations in the Court’s case law), suggests that the absence of a right to a healthy environment on the international plane does not necessarily exclude the development of environmental rights jurisprudence in regional human rights forums.

Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds

Indigenous peoples in Australia, the United States and Canada are significantly overrepresented as defendants in criminal trials and yet vastly underrepresented on juries in criminal trials. This means that all-white juries mostly determine the guilt of Indigenous defendants or white defendants responsible for harming Indigenous victims. In this article, we explore cases in which Indigenous defendants have perceived that an all-white jury’s prejudice against Indigenous people would prevent them receiving a fair trial. It focuses on Indigenous defendants (often facing charges in relation to protesting against white racism) challenging the array of all-white juries. Across these cases, Australian courts rely on formal notions of fairness in jury selection to dismiss the Indigenous defendant’s perception of bias and foreclose an inquiry into the potential prejudices of white jurors. We compare the Australian judicial ‘colour-blindness’ towards all-white juries with that of the United States and Canada. We argue that the tendency for courts in the United States and Canada to question jurors on their biases provides useful lessons for Australian judiciaries, including in relation to the impending trials of Indigenous defendants in Kalgoorlie, Western Australia, accused of committing crimes in response to white racist violence. Nonetheless, across all jurisdictions where there is a challenge to the array based on racial composition, courts consistently uphold all-white juries. We suggest that the judicial view of the racial neutrality of white jury selection misapprehends the substantive biases in jury selection and the injustice perceived by defendants in having a white jury adjudicate an alleged crime that is committed in circumstances involving protest against white prejudice.

A Brief Overview of Recent Supreme Court Precedent – Keeping Foreign Litigation at Bay

GLOBALIZATION marches on. Consistent with this, connections between the United States and the outside world (both perceived and actual) have become commonplace. (1) Of particular relevance to products liability practitioners, from the 1990s through present day, exports of goods and services as a percentage of United States gross domestic product have continued to increase, as has international trade in general. (2) For the United States judiciary, this likely means more litigation that is international in nature. Along with that international flavor comes more claims between persons and entities of different national origins, as well as more choice-of-law, venue, and jurisdictional issues. Due to the civil jury system that it provides, its more generous damages laws, and the different compensation structures available to its legal counsel, the United States (and its constituent states and territories) will likely continue to be an attractive litigation situs for claims with greater connections to foreign countries. (3) In light of this, for products practitioners, as well as defense counsel in other contexts, it is important to understand some of the more recent United States Supreme Court precedent addressing tools to keep foreign litigation at bay. Considered together, these decisions demonstrate the High Court's tendency to err on the side of keeping foreign-centered litigation outside of the United States court system. Examples of such decisions include those addressing where the principal conduct at issue is centered for purposes of the Foreign Sovereign Immunities Act (FSLA); the presumption against extraterritorial application of United States statutory law; personal jurisdiction over foreign defendants; and the doctrine of forum non conveniens. I. Recent Precedent Demonstrating The High Court's Tendency To Keep Foreign Litigation At Bay A. OBB Personenverkehr AG v. Sachs and FSIA's Commercial-Activity Exception In OBB Personenverkehr AG v. Sachs, a California resident sued the Austrian state-owned railway for injuries that she sustained while attempting to board a train in Innsbruck, Austria. (4) She predicated her suit on a United States-based travel agent's Internet sale of a Eurail pass to her before she left for her trip to Europe. (5) Such passes are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. (6) The Austrian governmental defendant raised FSIA, 28 U.S.C. [section][section] 1330, 1332, 1391(0- 1441(d), and 1602-11, as a defensive bar. (7) In response, the plaintiff argued (successfully in Ninth Circuit Court of Appeals) that her case satisfied FSIA's commercial-activity exception. (8) The commercial-activity exception abrogates sovereign immunity for suits based a commercial activity carried on in the United States by [a] foreign state. (9) The Sachs plaintiff contended that this exception allowed her suit to proceed in United States federal district court because her suit was based upon her Massachusetts travel agent's Internet-based sale of a Eurail pass in the United States, and the travel agent's sale was attributable to the Austrian state-owned railway through common-law principles of agency. (10) Under the plaintiffs and the Ninth Circuit's analysis, so long as at least of her claim was tied to the United States-based ticket sale, the commercial-activity exception applied and allowed her action to proceed here. Without reaching the agency question, the United States Supreme Court unanimously rejected the plaintiff's position and reversed the Ninth Circuit. (12) Chief Justice Roberts' opinion for the Court reasoned that conduct comprising only one element of a plaintiffs cause of action is insufficient to satisfy the based upon requirement of the first clause of FSIA's commercial-activity exception. …

Employer Liability, Risk Assessment, and Fault Principle

ABSTRACTThe UK Enterprise and Regulatory Reform Act 2013 (ERRA), section 69 has ensured that claims can only succeed on the civil burden of proof (balance of probabilities) that the employer has been negligent. The act also impacts on environmental liability and its “green purposes” are set out in chapter 24, part 1, which compel the employer to take measures in accordance with the Kyoto Protocol and encourage biodiversity. The broader framework of tort liability in this area of employer/employee relationship needs exploration to determine if such a policy-based approach is likely to make much difference given the tendency of courts to regard a breach of a worker-protective statute as evidence of fault. It is an important question for industry in common law jurisdictions because employers are likely to estimate their liabilities based on cost/benefit ratio in the work-place and invest in a safer premises under a fault-based system.

The Position of Higher Education Institutions in a Changing European Context: An EU Law Perspective

AbstractThe article analyses an enigma of EU higher education institution (HEI) policy; while Member States are reluctant to use the ‘Community Method’ to actively shape a supranational legal framework, their national policy choices remain subject to directly effective EU law, following the Court's tendency to let it spill over into any policy field. This unidirectional legal integration can have unintended consequences on HEIs' research and educational strategies, which may ultimately drive the sector towards more commercialisation. The article, first, sets out the conceptual framework. Its main part is then dedicated to analysing the tendency of directly applicable EU law to assert influences on education and research, the main areas of activities of HEIs, which have been largely kept out of the supranational EU hard law framework.

One Fine Day in Stellenbosch: A Review of Bram Akkermans, Ernst Marais and Eveline Ramaekers (eds) Property Law Perspectives II (Intersentia 2014)

This essay reviews a recently published collection of articles that originated from a conference of the Young Property Law Forum (YPLF) and a closely linked master class, both of which took place in November 2012 at Stellenbosch University's Institute for Advanced Study. The authors are a diverse group in terms of nationality and experience.The largest group of articles in the collection, authored by emerging property law scholars from Continental Europe, explores concepts in traditional civil law property law doctrine, with a particular focus on the difference between objective and subjective methods of classifying things and real rights. In addition to demonstrating the resiliency of some of these traditional doctrinal concepts, the authors of these articles (Sofie Bouly, Shaun Charlton, Dorothy Gruyaert, Ann Apers, Mitzi Wiese, Valerie Twehuysen, and Ellen Dewitte) reveal a preference for objective measures of classification but struggle at times to reconcile this preference with the tendency of courts in the legal systems they study to engage in more subjective classification determinations. In contrast, two other authors of articles in the collection (Eveline Ramaekers and Sabrina Praduroux), who are primarily concerned with constitutional property law decisions of the European Court of Human Rights, are more comfortable with that court's embrace of open-textured decision-making in its "fair balance" interpretation of Article 1 to the First Protocol of the European Convention of Human Rights. The authors of two more articles in the collection have a very different focus. One (Brendan Edgeworth) explores historical adaptations in the law of commercial leaseholds, while the others (Susan Bright and Lisa Whitehouse) recount an empirical study of the role of non-financial considerations in cases in which tenants and mortgagors lose possession of their residences. Two authors in the collection (Bram Akkermans and Joseph Singer) address broad questions of property theory and property law decision making norms-the operation of the numerus clausus principle and "rules of reason" respectively. These authors show that it is possible to think systemically about how a property law system sets limits on the number or recognized property types and that flexible standards and judicial discretion can be valuable supplements to clear, mechanistic property law rules. Finally, three articles address issues at the forefront of South African property law. The authors of these articles (Jeannie van Wyk, Bjorn Hoops, and Gerrit Pienarr) reveal the challenges posed by the need to develop South Africa's natural resources in an environmentally sustainable manner and the need to reconcile traditional customs regarding land tenure in South Africa with contemporary constitutional norms. Pienarr shows how innovations in other areas of property, for example condominium law, can serve as a repository for solutions to contemporary problems. In the end, this reviewer suggests that this volume will become a valuable resource for scholars interested in comparative property law because its contributions illustrate so well the sometimes divergent assumptions that property law scholars from different national backgrounds can bring to their scholarship.

Women and the Law in Nineteenth-Century Canada

This article describes the prosecution of Anna Balo, a Finnish immigrant in Nanaimo British Columbia, for the infanticide of her infant in April 1896. Constance Backhouse contextualizes the case in a time when contraception and termination of pregnancies were criminal offences. Anna Balo had been abandoned by her husband. Abandoned wives had little recourse to regain the property rights they forfeited when they married, and the law created onerous barriers to obtaining a divorce. Anna Balo was unrepresented at trial, and spoke through an interpreter. In the face of conflicting medical evidence, the coroner's jury concluded the Anna Balo's child died during childbirth. She pled guilty to “concealment of a birth,” an offence whose historical purpose was to criminalize mothers who killed their children when the Crown could not prove infanticide. Mrs. Balo was given a nominal sentence, which suggested that legal officials tolerated the secret disposal of dead infants' bodies, if not outright infanticide. Anna Balo's case reflects the court's tendency to be lenient toward mothers who killed their children. Judges assumed these were desperate women who killed as a last resort, and were sympathetic toward their situation. The court also considered infants to have less status than other humans, minimizing the severity of killing a newborn.

D.C. v. Heller and the Death of Consistent Constitutional Jurisprudence

When ruling on the day's most politicized legal issues, the Supreme Court has abandoned consistent interpretive theory. This paper will examine the Roberts Court's tendency to resolve divisive issues on a policy, rather than legal, basis, and will show that this trend is exemplified by the Court’s landmark Heller opinions. Part I of this paper will discuss the traditional importance of theories of Constitutional interpretation. Part II will examine the Constitutional theory subscribed to and consistently applied by Justice Scalia, perhaps the Court's most outspoken proponent of a consistent and defined interpretive style. Part III of this paper will delve into Justice Scalia's Heller opinion and show that the interpretive model used by the Court is simply an inconsistent gloss used to obscure a political ruling. This paper will conclude by showing that the interpretive inconsistency that marks the Heller opinion is not isolated to the Heller case but rather has become the rule for this Court.

Ideology and Deference in U.S. Courts of Appeals Decision Making on Administrative Law

The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court's seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges' ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.

State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma within the Court

This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importanly, however, by focusing on the strategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a change in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign immunity.

State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma within the Court

This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importanly, however, by focusing on the strategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a change in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign immunity.

Should We Be Partial to Partial Identification?

Eyewitness identification of criminal suspects from lineups and photospreads is the largest single cause of false imprisonment in the United States. Research programs have outlined experimentally proven techniques to reduce the dangers. Levi and Jungman have proposed a radical technique in which eyewitnesses choose several people from a large set of photos based on their similarity to the culprit. They argue that this will help solve many problems, including the tendency for courts to overbelieve eyewitnesses. Some problems and prospects for this new technique are discussed.

Editorial: Fuzzy Law from the High Court

Since the 1950s, a great deal of American public administrative practice has been constitutionalized, or regulated directly by constitutional (Rosenbloom, 1983). Concomitantly, the Supreme Court has emphasized that a reasonably competent public official should know the governing his and has ruled that almost all public administrators can be held personally liable for conduct that violates clearly established ... constitutional rights of which a reasonable person would have known (Harlow v. Fitzgerald 1982; 818). In recent years, however, the quest for clear constitutional principles in public administration has been frustrated by the Supreme Court's own fragmentation. In some cases, the justices, efforts to paper over the divisions in their ranks with general terms have led to decisions that dissenting justices have found devoid of any principles which will either instruct or endure (Cleveland Board of Education v. Loudermill, 1985; 562, Chief Justice Rehnquist), by rule, and hence ungoverned by law (Morrison v. Olson, 1988; 733, Justice Scalia), and so devoid of content as to produce[] rather than eliminate[] uncertainty (O'Connor v. Ortega, 1987; 73; Justice Scalia). Some of the Court's holdings have also been obscured by a plethora of separate opinions and partial concurrences and dissents. Consider, for example, the following headnote: O'Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which Rehnquist, C.J., and White, Stevens, and Kennedy, JJ., joined, an opinion with respect to Part II, in which Rehnquist, C,J., and White, J., joined, and an opinion with respect to Parts III-A and V, in which Rehnquist, C.J., and White and Kennedy, JJ., joined. Stevens, J.,...and Kennedy, J.,... filed opinions concurring in part and concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment.... Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined.... Blackmun, J., filed a dissenting opinion, in which Brennan, J., joined ... (City of Richmond v. Croson, 1989). Key decisions during the October 1993 term illustrate the Court's tendency to couple constitutionalization with turbidity. The Court handed down groundbreaking decisions on the Fifth Amendment's protection of real property rights and on public employees' freedom of speech. But it articulated standards that are too fuzzy to be used effectively as a guide to administrative action. Further, based on the justices' voting, it appears that narrow majorities used the Fifth Amendment as a device to outlaw administrative action to which they are opposed without displaying a serious commitment to property rights per se. Although some ambiguity is inevitable and has always been present, vague constitutional standards and values are bound to be problematic when the administrative emphasis is on employee empowerment and public entrepreneurship. The Fifth Amendment: Take It or Leave It? Dating from the 1950s, the constitutionalization of new property, such as welfare benefits, public employment, and occupational and other licenses, has revolutionized American public administration (Reich, 1964; Rosenbloom, 1983). It is anomalous that property has sometimes enjoyed greater constitutional protection than traditional, or real property. During the 1993 term, the Supreme Court moved to restrain constitutionally administrative action in civil forfeitures and individual zoning decisions, thereby affording more protection to landowners in seizure and cases. However, the Court's standard with regard to takings is inherently unclear and openly invites litigation. Its divisions also reveal less interest in property owners rights than in constraining administrative action found objectionable by one or another line-up of justices. Consequently, its decisions do not clearly signal to public administrators that real property rights are to be highly valued. …

Churches and the Courts: The First Amendment Protection from Clergy Lawsuits

Religious organizations play an active role in the American economy. They have traditionally been involved in service industries such as health care and education. More recently, certain religious organizations have also become involved in such diverse activities as psychological counseling and economic development. Moreover, the largescale hierarchial nature of certain churches make them an employer of thousands. Consequently, the risk of entanglement in civil litigation has greatly increased for religious organizations. Even though the first amendment has typically shielded religious organizations, the growing tendency of courts to grant wider judicial access to plaintiffs with claims of first impression poses a threat to the litigation exposure of religious organizations. The rule has long existed that religious organizations, like everyone else, can be sued if they participate in secular or “non-ecclesiastical” activities. For instance, if religious organizations enter into a contract to purchase land, they are as Uable on that contract as any other individual or organization in society. Likewise, religious organizations have also become liable for the negligence or abuses committed by their members during the course of counseling services offered to lay persons, even if that counseling involved religious matters. The area of greatest uncertainty and highest risk in the legal responsibilities of religious organizations, however, is not taking place in the realm of secular activities; rather, it is taking place increasingly in more ecclesiastically-related areas. The Catholic Church, for instance, has been held responsible for the spiritual and counseling activities of its priests.

Rethinking the Role of Judicial Scrutiny in Eminent Domain

Abstract The use of eminent domain has increased substantially over the past 50 years. With that expansion has come a growing tendency for courts to defer to state and local government interpretations of the Fifth Amendment's public use requirement. A considerable body of criticism has developed around the trend. We argue that governments need heightened judicial scrutiny to avoid inappropriate and inequitable use of eminent domain powers. In this paper we review a set of models for judicial review and suggest the implications of each for eminent domain decisions. We posit an additional model, incorporating consideration of the purpose, procedure, effect, and compensation associated with a taking. We examine the implications of the model in light of earlier eminent domain cases, and discuss the impact of eminent domain actions on private property. We give general recommendations for policy makers and planners involved in eminent domain actions.

Does hospital corporate liability extend to medical staff supervision?

Corporate liability has proven to be fertile ground for claimants against hospitals. Charitable hospitals’ loss of immunity has produced a sudden and often traumatic change in hospital liability. The impact of corporate liability has been slower, but has produced the same result—extended hospital liability.In the October 1980 issue of Medicolegal News, Lee J. Dunn, Jr., discussed the then-current tendency of courts to find hospitals culpable in tort litigation under the theory of corporate liability. That article concentrated on two decisions: Johnson v. Misericordia Community Hospital, and Bost u. Riley. Six months later, an article by Miles J. Zaremski discussed the continuing trend to hold hospitals accountable for the selection and maintenance of physicians on their medical staffs, and examined the Johnson decision, Fridena v. Evans, and Capan v. Divine Providence Hospital.

The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo