Federal Jurisdiction Research Articles

Modificações trazidas pelo Tema 1234 à Judicialização em Saúde e Atuação das Defensorias Públicas

Objective: To evaluate the changes resulting from the judgment of Theme of General Repercussion No. 1234 by the Federal Supreme Court in the judicialization of health and its impact on the performance of Public Defender's Offices for the access to health justice by the underprivileged population. Methodology: critical analysis of the jurisprudential change represented by the decision in question, especially in view of the paradigm of federative solidarity in health matters. The study was developed in a descriptive way, through jurisprudential, bibliographic and institutional database research, based on the historical evolution that supported the ruling and on the comparison with other cases decided by the Court. It culminates in an exploratory evaluation of the repercussions of the decision on the provision of legal assistance by the defender's bodies, in the context of the right to health. Results and discussion: From the analysis of the ruling, in comparison with the conduct in force until then in the judicial phasis, the following were observed, as main changes: the definition of cases of federal and state jurisdiction for pharmacological assistance, the emphasis on calculating the value of the claim according to official and non-market parameters, the orientation about the way of compliance, the creation of a national platform. The new discipline also highlighted the need for the Federal Public Defender's Office to be internalized in order to take on federalized demands, which, however, clashes with the structural reality of the agency. Conclusion: in spite of the intention of systematizing and rationalizing the matter, the decision of Topic 1234 seems, at first, to pose serious practical difficulties to the realization of the right to health through the courts, notably, in federalized cases, for the underprivileged population, largely dependent on the Unified Health System and on the public defense assistance. Submission: 10/09/24| Review: 10/25/24| Approval: 10/25/24

A Tale of Two Centuries? Expanding Constitutional Labour Rights in Canada and Their Impact on Legislation, Conflict and Wages

ABSTRACTUsing collective agreement and strike data from the Canadian Federal and provincial jurisdictions for the years 1978–2019, this study examines the effect that various legislative regimes that govern public‐sector bargaining disputes have on the incidence, duration and cost of conflict. This study seeks to replicate and improve previous estimates related to this topic but also extends the analysis to examine changes to the legal environment in Canada in which labour rights have been increasingly enshrined in constitutional law through the Canadian Charter of Rights and Freedoms. This study finds, in contrast to previous studies, that the legislative regime impacts the way agreements are settled when disputes occur but not the likelihood of a directly negotiated agreement prior to impasse. It also highlights some differences in contract and wage settlements prior to and after the constitutionalization of labour rights in Canada.

Advances in building data management for building performance standards using the SEED platform

Reducing energy consumption and greenhouse gas emissions in the built environment is a critical step in achieving emission goals to mitigate climate change impacts. Local, federal, and international jurisdictions are deploying several methods to reduce energy and emissions such as voluntary and mandatory benchmarking and building performance standards, requiring building owners to reach energy and emission targets.Jurisdictions leveraging benchmarking and building performance standards require knowledge of the buildings covered; which is a large task due to staffing constraints, limited information on building characteristics and tax parcel data, and the need for advanced data management techniques to align datasets. This paper describes an open-source platform's recent advances to create consistent taxonomies, identify erroneous data, enable auditability, and track building performance. The paper concludes with two use cases on how the platform has been used by jurisdictions.

Government funded suicide prevention in Australia – an environmental scan

BackgroundSuicide is a worldwide public health problem. In response to this problem, Australia was one of the first countries to develop national suicide prevention policy. Guided by the National Suicide Prevention Office (NSPO), which was established in 2021, suicide prevention in Australia is in a period of reform. The NSPO is driving a nationally consistent and integrated approach to suicide prevention including leading the development of a new National Suicide Prevention Strategy. This article summarises findings from an environmental scan of government-led suicide prevention in Australia, conducted as an input for the development of the new Strategy.MethodsThe scan was conducted from August 2022 to January 2023. We searched relevant government websites and Google to identify policy documents and programs and services. We undertook a desktop review of documents and programs/services using coding templates developed to address the objectives of the scan. Qualitative information was extracted in a systematic manner using these templates.ResultsAustralia’s suicide prevention efforts are significant as demonstrated by activities ranging from policy documents intended to guide and plan activity, the National Mental Health and Suicide Prevention Agreement committing the Federal Government and jurisdictions to work together, and the availability of national, state, local area based, and digital services and programs. Suicide prevention approaches in Australia are mostly selective or indicated. There is less emphasis on universal approaches, wellbeing promotion, strengthening protective factors and mitigating the impact of known drivers of distress. In addition, there is limited evidence to demonstrate a whole-of-government or whole-of-system approach is operating in Australia. Findings should be interpreted in the context that suicide prevention in Australia is currently in a period of transition.ConclusionsCurrent government emphasis on and investment in suicide prevention activity, together with strong commitment to lived experience and cross sectorial collaboration, are substantial and appropriate. There are also many opportunities to further progress cross-portfolio and cross-jurisdiction suicide prevention and response efforts. This requires urgently adopting a shared understanding of suicide, which includes the diverse drivers of suicidal distress, and improving protective factors and social wellbeing.

Family Provision across Borders

It takes little for family provision claims to cross borders, whether state or national. The property may be located in different places — other states or countries; the personal representatives, claimants or beneficiaries under the will may be from different places; or the deceased may have had a strong personal connection with another place. Any one of those cross-border considerations raises questions of a court’s jurisdiction to deal with a family provision application, or of the law that will apply to it. In this article, we give an account of the principles of private international law — which in this area also apply in interstate matters — that affect family provision claims in Australia. In doing so, we explore recurrent complications with these cross-border family provision claims, including those arising under the cross-vesting scheme and in the federal jurisdiction. While we consider that the current equitable principles of choice of law remain best placed to address how provision should be made from different forms of property, reforms must be made to the equitable principles of jurisdiction if complications raised by the cross-vesting scheme and the possible exercise of federal jurisdiction in family provision claims are to be overcome.

Armed Federalism, Gun Markets, and the Right to Bear Arms in the United States

Abstract This article argues that fragmented and varied regulatory, cultural, and electoral responses to guns and gun rights in the contemporary United States are a result of two long-standing features of American political life––its tradition of armed federalism and its unique, domestically oriented market for small firearms. As a result of the intersection of these two phenomena, the past 150 years have seen the growth of a fragmentary regulatory response to firearms on the part of local, state, and federal jurisdictions; the emergence of an organized national gun-rights movement; and, most significantly, the ascendance of a legal strategy by supporters of gun-rights constitutionalism. Only by examining the historical contingencies of American political institutions and markets does the contested transformation of a “right to bear arms” into gun rights make sense.

Joining forces: Combining police and external expertise for cold case reviews

Cold case reviews within police and law enforcement agencies are challenging, not the least owing to the amount of time required to carefully review documentation, forensic exhibit holdings and various other casefile information. Most federal and state agencies are time poor, meaning there are very few dedicated cold case teams fortunate enough to have an abundance of police and expert staff resources. Universities and education organisations, however, have large troves of various expertise, alongside expansive human resources, by way of their academic and student body. In certain circumstances, the academic expertise and course offerings of a university may be well suited to assisting law enforcement in reviewing cold cases.There is growing desire for university courses to generate job ready graduates. In the field of law enforcement and policing this is difficult, as safety and the security of sensitive material and evidence is paramount. Educators strive to create workplace simulations, and with the correct mix of academic expertise, course offerings and industry linkages, the emerging opportunity for real cold case collaboration is possible. One such example is the Cold Case Review @ Murdoch (CCR) initiative. Since 2020, CCR has worked with the Lower Saxony Police Academy in Germany to develop the novel International Cold Case Analysis Project (ICCAP), now incorporating over 25 member institutions, to assist in solving real cases from both Niedersachsen (Lower Saxony) and federal police jurisdictions. One case, known as “The North Sea Man” has shown great success and demonstrates the power of joining forces between law enforcement and external agencies to help advance cold cases.

Justiciability as a Constitutional Limitation on Federal Jurisdiction

Justiciability as a Constitutional Limitation on Federal Jurisdiction

CONSTITUTIONAL AND LEGAL BASIS FOR ENSURING THE TRANSPORT SOVEREIGNTY OF RUSSIA IN CONNECTION WITH THE NETWORK DEVELOPMENT OF INTERNATIONAL TRANSPORT CORRIDORS

Introduction. The article, in a constitutional and legal context, examines the concept of transport sovereignty of the state as an integral part of the territorial, economic, and technological sovereignty of the state. International transport corridors (ITC) are created with the participation of Russia, help strengthen the transport sovereignty of the Russian state, and act as new network transport infrastructure structures for international transport. It is noted that the security of the transport system is under federal jurisdiction and is ensured by constitutional measures of national, regional, international regulation and control in the field of federal transport, communications, information, information technology and communications. Materials and methods. Analytical materials were used on the Eurasian cooperation of the EAEU member states on the creation of the ITC, on the coordination functions and powers of the EAEU bodies, the State Council of the Russian Federation, the President of the Russian Federation, the Government of the Russian Federation, the Ministry of Transport of Russia, the Ministry of Finance of Russia and others on the development of the ITC and the transport system as a whole. Methods of comparative analysis of legal acts on the topic of the article were used. Results. The importance of the ITC for the transport sovereignty of Russia and the Agreement on the ITC «North-South» of September 12, 2000 are analyzed. It is noted that in the world of innovation and digital economy, ITCs are included in transport systems. Discussion and conclusions. The constitutional and legal nature of strategic planning of the transport industry with the participation of the State Council of the Russian Federation is noted. In this regard, strengthening legal regulation measures to ensure the technological and transport sovereignty of the state at the international and national levels can be considered as ways of constitutional and legal protection of the foundations of the constitutional system, the interests of the state and society.

A 23-year analysis of litigation in orthopedic elbow surgery

BackgroundThe reasons for malpractice litigation in elbow surgery are not well understood. The aim of this study is to report the most frequently litigated surgeries of the elbow and analyze the reasons for litigation and case outcomes. MethodsA retrospective review of the Westlaw legal database was performed, and all federal and state jurisdiction litigation cases involving the elbow from 2000-2023 were queried. Cases were excluded if they did not involve an orthopedic surgeon, nor primary elbow injury or procedure. Cases were reviewed for demographic information, surgical procedure based on reference CPT codes, complications, symptoms, and reasons for litigation. Quantitative information, including settlement and indemnity cost to the defendant orthopedic surgeon, was analyzed. Cases were sub-divided based on United States Census Bureau regions and states to assess regional frequency of litigation with ANOVA tests. ResultsThere were 59 cases meeting inclusion criteria from 2000-2023.The most litigated cases involved were ulnar nerve transposition/release and open reduction and internal fixation of the proximal radius and/or ulna at the elbow. The most litigated complication was claimed nerve damage (46%) and permanent disability (27%). Of the total cases, the most frequently litigated symptoms were nerve damage (46%) and loss of function (37%), while the least frequent was postoperative stiffness (2%). The Pacific region demonstrated the highest litigation rate (20%), while the East South Central, Mountain, and New England regions had the lowest litigation rate (3% each). A favorable verdict was given to the defendant orthopedic surgeon in 59% of the cases. The average loss incurred through settlement was $245,590, while the average indemnity paid through verdict was $523,334. ConclusionOperative fixation of the proximal ulna/radius and ulnar nerve release/transposition are the most litigated procedures of the elbow. Litigation is most associated with nerve injury. Across Census Bureau regions, there is no significant difference in monetary cost incurred through settlements and verdict losses. Although a majority of litigated cases are won by the defending orthopedic surgeon, thorough informed consent and perioperative expectation management may mitigate litigation risk.

International Effect: The Ongoing Tension with Medical Marijuana Legalization

Purpose: In the landscape of the United States, an escalating number of states are ushering in a new era by enacting legislation that affords individuals the right to employ cannabis for medical purposes. However, this commendable stride toward medical autonomy is accompanied by an escalating tension, a discordant symphony of conflict between state and federal jurisdictions. This study embarks on a journey through the labyrinth of legislative intricacies, seeking to unravel the roots of this tension and proffering insights into potential resolutions. At the heart of the matter lies the dichotomy between state and federal legislation. While states pave the way for medical cannabis use, the federal stance casts a looming shadow of ambiguity and discord. The conflict, multifaceted and dynamic, beckons for a nuanced exploration.
 Methodology: The study adopted desktop literature research design.
 Findings: By delving into the intricacies of the legislative measures themselves, this research identifies mitigating factors that can potentially alleviate the tension between conflicting jurisdictions. Mitigation, however, requires more than a superficial understanding of legislative nuances. It demands a comprehensive acknowledgment of the extensive legal and medical data interwoven with the fabric of cannabis use for medical purposes.
 Unique Contribution to Theory, Practice and Policy: The study advocates for a holistic approach, urging policymakers to draw upon a repository of knowledge that transcends mere legal frameworks. In doing so, it seeks to bridge the gap between state and federal perspectives, fostering a more informed and cooperative discourse. Navigating the path toward resolution involves a delicate balance. The sculpting of legislative measures should be informed by a deep appreciation of the medical intricacies associated with cannabis use. The study underscores the significance of considering medical data as an essential compass in the journey toward harmonizing state and federal regulations. By acknowledging the complex interplay between legality and medical efficacy, this research contributes to the ongoing dialogue surrounding cannabis legislation. In conclusion, this study illuminates the intricate dance between state and federal jurisdictions in the realm of medical cannabis use. Through a meticulous examination of legislative intricacies and a robust consideration of legal and medical data, it endeavors to pave the way for a more harmonious coexistence between state and federal perspectives.

Article III 'Arising Under' Jurisdiction: Evading Federal Jurisdiction by Amending a Complaint After Removal to Delete Federal Claims

Article III 'Arising Under' Jurisdiction: Evading Federal Jurisdiction by Amending a Complaint After Removal to Delete Federal Claims

Ripple effect: the SEC’s major questions doctrine problem

Objective: to elaborate a new standard for assessing the level of decentralization of cryptoassets in the USA.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological.Results: Crypto assets and blockchain technology have the potential to create unprecedented equitable access to financial institutions. Despite this potential, there is a robust debate regarding federal agencies' jurisdiction over the novel asset class. Without clear statutory guidelines, federal agencies have been forced to resolve this debate through the rulemaking process. However, agency rules regarding jurisdiction over crypto assets could be scrutinized by a reviewing court under the major questions doctrine. Once highly deferential to agency rules, the U.S. Supreme Court in recent terms has repeatedly struck down agency rules when an agency claims an unheralded power to regulate an issue of deep economic and political significance. The U.S. Securities and Exchange Commission (SEC) arguably claims such a power by interpreting most crypto assets to be "investment contracts" and thus under SEC jurisdiction. But although a decision on major questions doctrine grounds in the high-profile case SEC v. Ripple Labs, Inc. could help clarify how we classify crypto assets, it leaves many jurisdictional questions unanswered and could complicate the application of the SEC's disclosure regime to risky crypto asset offerings.Scientific novelty: This Note argues that Congress should pass the Lummis-Gillibrand Responsible Financial Innovation Act to create joint jurisdiction between the SEC and the Commodities Futures Trading Commission over most crypto asset offerings. This may help to balance consumer protection and innovation at the frontier of financial innovation. The author also endorses a new standard to evaluate whether a crypto asset is sufficiently decentralized to further clarify the SEC's role in regulating crypto asset offerings.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the activity of the U.S. Securities and Exchange Commission.

The Origins and Application of the “Core of Indianness” in Indigenous Labour Relations

This article examines the history of, and legal precedent set by, Four B Manufacturing v. United Garment Workers of America, a 1980 Supreme Court of Canada case involving an Indigenous-owned manufacturing firm that resisted the efforts of its Indigenous and non-Indigenous workers to form a union on the Tyendinaga Mohawk Territory, a reserve in southeastern Ontario. The employer, Four B, contested the jurisdiction of the Ontario Labour Relations Board and argued, unsuccessfully, that as an “Indian enterprise,” its own operations were a matter of federal jurisdiction. We return to the case of Four B for three interrelated reasons. First, we argue that Four B remains relevant because of the ways that the political economy of settler-colonial Canada continues to structure Indigenous enterprises, labour, and employment as ongoing sites of tension. Second, as the inaugural case dealing with the “core of Indianness” – a contested legal concept used by the courts to determine federal jurisdiction over Indigenous labour – this case both set the legal precedent and shaped the subsequent political terrain of Indigenous labour relations. Third, the issues addressed in Four B contextualize recent jurisdictional struggles over Indigenous enterprises, labour, and employment in what we term the “Indigenous public sector” – namely, health care, social services, and First Nations government administration. The article reviews the case history of Four B, setting this against the backdrop of deindustrialization in southeastern Ontario during the period, before tracing how the case influenced the juridical and political landscape of Indigenous labour relations. We close by considering the potential tensions between Indigenous self-determination and the exercise of collective bargaining rights by Indigenous workers.

Australia’s New National Anti-Corruption Commission: Background and Critique

Australia has been the site of major advances in the creation of public sector anticorruption commissions since 1989. However, commissions with broad jurisdiction have been limited to the six states until 2023. The federal jurisdiction lagged behind, with a series of scandals driving intensified debates from 2013. Performance issues associated with state agencies formed part of the debate. The present paper reviews this history, focusing on the intensification of research and lobbying efforts leading to the establishment of a National Anti-Corruption Commission in 2023. The paper also critiques the legislation behind the new agency, arguing it entails considerable limitations and that agency legitimacy and effectiveness will only be achieved through the inclusion of integrity issues of concern to citizens, a strong focus on prevention, and significant independence in investigations and adjudication. These lessons are of relevance to other jurisdictions facing the issue of effective institutional responses to public sector misconduct risks.

A Special Status Victim: Criminal Liability for Assaulting a Government Official in Ukraine and Other Countries

The paper discusses some emerging issues of criminal liability for assaults against public officials in various jurisdictions. Emphasis is placed both on the comparative approach to analyzing the relevant criminal statutes and on the specific legal framework for the protection of the life and health of law enforcement officers. Based on the provisions of statutory criminal law and the case law of several countries, it is shown that the life, health and property of law enforcement officers enjoy a higher level of protection. This is explained by the fact that such persons are direct representatives of the state, perform their duties in public, remain under public scrutiny and, therefore, may become an easier target for assault crimes. In the conclusions of the research, it has been argued that the determination of the legal grounds, scope and limits of protection of public officials by criminal law should be carried out at the national level (or state level in a federal jurisdiction), based on the orientations and principles of the domestic criminal law policy and program of a given nation.

Erratum to Consent Decrees and Federal Jurisdiction

Erratum to Consent Decrees and Federal Jurisdiction

Consent Decrees and Federal Jurisdiction

Consent Decrees and Federal Jurisdiction

Governing therapeutic pluralism: An environmental scan of the statutory regulation and government reimbursement of traditional and complementary medicine practitioners in the United States.

The World Health Organization has called on nation-states to statutorily govern, and integrate into state-funded healthcare systems, practitioners of traditional and complementary medicine (T&CM) (whose therapeutic approaches that fall outside the boundaries of conventional biomedicine). To date, however, there exist few rigorous reports of the degree to which individual nations have responded to this call. This study, an environmental scan, comprehensively documents the statutory governance and government reimbursement of T&CM practitioners in the United States (US). Across the US, where health practitioner governance falls within state and territorial (rather than federal) jurisdiction, over 300 laws have been enacted to statutorily regulate a wide range of T&CM practitioners. Nurse-midwives and chiropractors are universally licensed across all 56 US regulatory jurisdictions (50 states, 5 territories and the District of Columbia); other major T&CM practitioner groups are regulated in fewer jurisdictions (acupuncturists, n = 52; massage therapists, n = 50; direct-entry [non-nurse] midwives, n = 36; naturopaths, n = 24). Additional statutory stipulations exist to govern chiropractic assistants (n = 30), auricular (ear) acupuncture practitioners (n = 24), homeopathic practitioners (n = 3), and psychedelic facilitators (n = 1), as well as biomedical professionals who practice acupuncture and related techniques, e.g., 'dry needling' (n = 44). While professional entry requirements for licensed T&CM practitioners are substantially harmonized across jurisdictions, restricted titles and statutory scopes of practice vary. Ten states have furthermore implemented 'safe harbor' ('negative licensing') exemption laws enabling otherwise-unregulated T&CM practitioners to legally practice. Limited government reimbursement for T&CM care is available across several federal and state programs, including Medicare, Tricare, Veterans Health Authority, and Medicaid. Nurse-midwifery and chiropractic care is most frequently reimbursed; acupuncturists, naturopaths and massage therapists are eligible for much more limited coverage. Medicaid programs for low-income people in ten states furthermore cover the services of (unlicensed but statutorily-recognized) birth doulas. Additional research is needed to assess the impact of these regulations on US health care.

The Justice for Victims of War Crimes Act (U.S.)

On January 5, 2023, the U.S. Justice for Victims of War Crimes (JVWC) Act was signed into law. The legislation closed long-recognized gaps in U.S. federal jurisdiction for holding accused war criminals accountable. Prior to the JVWC, the federal war crimes statute provided jurisdiction over war crime offenses committed anywhere, but only if the victim or offender was a member of the U.S. Armed Forces or a U.S. national. The baseline federal statute of limitations also applied, meaning the United States could only bring charges within five years of the crime occurring.