Landmark Decision Research Articles

Seeking justice for the mass execution in Rawagede/ Probing the concept of ‘entangled history’ in a postcolonial setting

ABSTRACT In the Netherlands, the nation’s imperial past is under new scrutiny since a landmark decision of the Civil Court in The Hague in 2011 held the Dutch state responsible for a mass execution perpetrated in 1947, during the Indonesian war of independence (1945–1949). This paper explores some of the historiographical implications of this triumph of law, arguing that it has had the unintended effect of reinforcing the representation of the conflict along ‘national’ frames at the expense of the more ‘entangled’ experiences of the actors involved. The authors hereby respond to Remco Raben’s call to write ‘trans-colonial’ history in order to overcome the dominance of national frames in Dutch postcolonial historiography. By bringing the pre-history and the afterlife of the court case to the fore, the authors show how ‘entangled’ the (hi)stories of veterans, victims, and activists are, and how alternative ‘frames’ than that of the nation state, could contribute to develop the much awaited postcolonial historiography.

Benhaus - a landmark decision, one less hoop for contract miners but a clarion call for an overhaul of the South African mining regime

SYNOPSIS The mining industry has evolved, such that the means of production that were once in the hands of major players or power houses have become equally accessible to smaller entrants, i.e. junior mining companies and contract miners. Contract mining involves contractual relationships between mine owners or mineral right holders and third parties to conduct mining activities on behalf of the right holders. The current mining income tax legislation has been a considerable obstacle to contract miners. Under its terms, they have been viewed as mining on behalf of third-party mineral rights holders. As such, expenditure incurred in relation to contract mining activities was often disallowed by the South African Revenue Service (SARS). However, the recent judgement of the Supreme Court of Appeal, Benhaus Mining (Pty) Ltd v CSARS 2020 (3) SA 325 (SCA) (Benhaus), rightfully or wrongfully, appears to provide clarity regarding the fate of contract miners' involvement in the mining value chain. The taxpayer, a contract miner, was held to be conducting mining operations within the meaning of S15(a) read with si of the Income Tax Act 58 of 1962 (the Income Tax Act). This paper looks at how contract mining has traversed the mining tax landscape, the implications of the Benhaus judgment, and stresses the necessity for clear policy reform to the mining tax regime and equally to legislation framed to give effect to these policies. Keywords: Contract mining, owner mining, tax, DMRE, mining regime reforms.

Portugal - The 2019 I·CONnect-Clough Center Global Review of Constitutional Law

2019 was a year marked by political change and social contestation. On the political quadrant, we saw the end of the highly publicized “geringonca”, due to the lack of consensus between the Socialist Party and its previous left-wing allies. We now have a minority left-wing Government that will have to seek the support of other parties when necessary. The Portuguese Parliament also became more fragmented in the 2019 legislative elections, with the election of Parliament Members by parties that, until then, had not achieved representation (in particular, a radical right-wing party was able, for the first time in our democracy, to elect one Member of Parliament). The social field was also very active, with the summoning of several strikes in different professional sectors. The strikes of the drivers of dangerous goods transport vehicles were particularly felt, which led the Government to invoke emergency powers. But discontent was also very acute among health professionals, teachers, and even policemen. And since the Government did not correspond to their demands, this scenario is likely to repeat itself in the next year. For its part, the Constitutional jurisprudence focused, once again, on the matter of family rights (revisiting its landmark decision on surrogacy, but also its previous rulings on paternity proceedings), while reaffirming the right to citizenship, the right to personality development, as well as the right the privacy and to the protection of communications.

Copyright Protection of Government-Related Material Before the Courts of the United States and Canada: Considerations for Future Reforms

Copyright protection of government-related materials lies at the intersection of private incentives, public interest, and political motivation. These interests naturally clash. Therefore, the justification and scope of copyright protection for such materials has been subject of intense controversy ever since. Recently, the Supreme Court of the United States and the Supreme Court of Canada handed down landmark decisions on the application of the relevant century old doctrines and provisions. Moreover, U.S. and Canadian courts have lately addressed the protectability of privately created government-adopted industry standards. This article takes these decisions as an occasion to reflect on the copyright protection of government-related materials before the background of the rapid technological advancement and the substantial ongoing societal and political change. Taking into account the regulatory experiences in the EU, this article questions the prevalent assumptions of trustworthy state action and undistorted functioning of markets, which considerably underly the design of current government copyright regimes around the globe. In this light, the article aims to provide avenues for future legislative reforms that address the copyright of government-related materials. It suggests a more focused, nuanced, and holistic regulatory approach for strengthening and maintaining open, democratic societies.

Euthanasia: Past, Present and Future

In a landmark decision, the Supreme Court of India has provided a legal recognition to ‘passive euthanasia’ in March 2018. In May 2018, David Goodall, an Australian scientist ended his life through Physician Assisted Death in a Swiss clinic at the age of 104 for old age rather than terminal illness. These two events sparked a fresh debate regarding euthanasia and the proponents and opponents of euthanasia argued voraciously for and against it albeit the central theme remained same- ‘the dignity of human life’. This monograph elaborates on the philosophy and popular terminology of euthanasia. It also deliberates on the socio-cultural differences in the conceptualisation of euthanasia and an unbiased critique of the pros and cons of euthanasia with the intention to redress the balance. The monograph finally discusses the current scenario and future directions related to euthanasia.

Applicable law to the arbitration agreement in general conditions of sale available on seller's website: A pro-arbitration approach in the jurisprudence of the Supreme Court of the Federation of Bosnia and Herzegovina

The Supreme Court of the Federation of Bosnia and Herzegovina had to determine the applicable law to the arbitration clause contained in general conditions of sale on seller's website. The sales agreement was concluded orally and the reference to the website with general conditions of sale was made on a pro forma invoice paid by the buyer. The arbitration clause provided for ICC Rules and seat of arbitration in Amsterdam, while French law was chosen to apply to the contract. The buyer, a domestic company from Bosnia and Herzegovina, filed for damages before domestic courts, claiming that the arbitration clause was not consented to, nor was it concluded in written. The Supreme Court of the Federation of Bosnia and Herzegovina issued in the "chicken breed" case in 2019 a pro-arbitration judgment with reference to the New York Convention of 1958 and European Convention on Interna New York Convention of 1958 and European Convention on International Commercial Arbitration of 1961. It is a landmark decision on one of the most difficult questions of applicable law to formal and substantive validity of the arbitration agreement.

ECCC Appeals Appraising the Supreme Court Chamber’s Interventions

The appellate stage of the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) has received more limited attention than its pre-trial and trial process. In order to partially remedy this gap, this article highlights the unique features of the ECCC appellate system and how the Supreme Court Chamber (SCC) has given them effect in practice. Firstly, I consider the SCC’s restricted jurisdiction over immediate appeals and failed attempts by its judges to extend such appeals to jurisdictional questions. Secondly, I discuss the scope and powers of appellate review by the SCC in respect of alleged errors of law and fact, focusing on its innovative formulation of the standard of review of factual errors. This qualified deference standard has proven to be of broader import as it has informed the International Criminal Court Appeals Chamber's majority approach in the Bemba case. Thirdly, I focus on the SCC’s intervention in one area, namely the ECCC’s personal jurisdiction, and its reading of the ‘most responsible’ parameter as a non-jurisdictional and judicially unreviewable criterion. Taking cues from these landmark decisions, I appraise the SCC’s role in delivering fair and expeditious justice and securing the viability of the ECCC’s mission while acknowledging the more contentious aspects of its track record without which no account of its emerging legacy would be complete or balanced.

The Brave New World after Obergefell

The common understanding of the function of law exemplified by the claim of the Casey court merely to “define the liberty of all obligation is to define the liberty of all, not to mandate our own moral code,” is false. From Plato onward, the ancients understood that law performs an irreducibly “philosophical” function, and contemporary progressive theorists have recognized this function under notions such as “channeling” and “establishment.” In consequence, contests of right in the legal and political sphere conceal and decide what are in reality contests of truth. It is in this light that this article examines the landmark Obergefell decision, the cases leading up to it, and its aftermath, arguing that what presents itself as a contest of rights is better understood as the codification of a new “technological” philosophy of human nature owing to the reduction of the human body to a machine in the theoretical sphere and the technological conquest of reproductive biology in the practical sphere. This alters the theoretical and historical context for understanding the significance of Obergefell, suggesting that the revolution in marriage and family law culminating in this landmark decision are most adequately understood not as the leading edge in the ever-forward march of liberation, but as the leading edge in the ever-forward march of biotechnology. Such a revolutionary decision, redefining the fundamental realities of human being and life, cannot but affect every area of public life. This essay will focus on two of these areas. First, the Court’s presumption to redefine human nature, marriage, and the family, marks its triumph over these realities. The article will consider the remarkable arrogation of power implicit in these decisions, the way that principles of equal protection and substantive due process are employed as a “principle of nihilism” to negate any limits placed on this power by an antecedent order of nature, and the ways the state will likely be called upon to exercise this power in the future. Secondly, this article will consider how the Court’s codification of a technological archetype of human nature, necessitates the further “biotechnologization” of marriage and family, making the state an agent in the advance of the “new eugenics” associated with assisted reproductive technologies and genetic science, and hastening the arrival of a biotechnical future.

"Does 'No, Not without a Condom' Mean 'Yes, Even Without a Condom'?: The Fallout from R v Hutchinson"

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity.

“Lhaka Honhat Association v. Argentina”: Landmark decision on direct justiciability of Article 26 ACHR and the autonomous right to a healthy environment

The Inter-American Court of Human Rights (IACtHR), after 28 years of conflict with the Argentine state, finally ruled in favor of the rights of the indigenous communities of Salta, Argentina. The Court condemned Argentina for violating the right of these indigenous communities to their cultural identity, a healthy environment, and adequate food and water. The Court ordered specific action in Argentina for the restitution of those rights, including urgently needed access to food and water, reforestation and the recovery of indigenous culture. Lhaka Honhat is a landmark judgment for the IACtHR sets a precedent concerning the direct justiciability of Article 26 of the American Convention on Human Rights (ACHR). This is the first ruling by this Court to independently analyze the human right to a healthy environment. “Lhaka Honhat” establishes clearer rules for State actions concerning the principle of prevention of environmental damage caused by private individuals and establishes guidelines for restitution and compensation for the violation of indigenous (collective) rights when their natural resources are affected. A more comprehensive reading of the scope of protection under Article 26 in future court cases is likely.

25 Years of Membership in the Council of Europe: How It All Started

Abstract. The article deals with Ukraine’s admission to the Council of Europe, a great achievement of the independent Ukrainian state. As a representative of Ukraine to the Council of Europe at that time, the author of the present article coordinated the efforts of our country aimed at joining the organisation. The official membership application dated 14 July 1992 became the first formal manifestation of Ukraine’s European aspirations, presently set forth in all fundamental documents. The article goes on to provide an outline of the impediments to Ukraine’s accession, explains the specificity of the erstwhile public sentiments, and mentions the problematic aspects of the feedback of Ukrainian society to the conditions for membership in the Council of Europe. Be that as it may, on 19 October 1995, in a unanimous landmark decision, the Committee of Ministers of the Council of Europe invited Ukraine to become the 37th member of the organisation. Keywords: Council of Europe, Committee of Ministers of the Council of Europe, Ukraine in the Council of Europe, international organisations.

Introduction

Introduction MELVIN I. UROFSKY One of the few benefits of Covid-19 is that I seem to have a lot more time to read not only serious works, such as John Barry’s The Great Influenza, the story of an earlier pandemic a century ago, but also lighter material, such as Ben Aaronovich’s series The Rivers of London about Thomas Nightingale and Peter Grant, two members of Scotland Yard who are magicians (real ones). Even people who are working at home tell me they have more time, if nothing else than in the hours they would be dressing for work, putting on makeup, or commuting. So I hope you all enjoy this issue. It does not have magicians, but it does have a little lightheartedness that we can all use these days. Mark Killenbeck, Davis Distinguished Professor of Law at the University of Arkansas and an old friend, writes about two justices and their dissents, William Johnson in Fletcher v. Peck (1810) and Louis Brandeis ’s concurrence in Whitney v. California (1927). Needless to say, I am much interested in dissent and also in the Brandeis opinion, which Professor Mark Tushnet of Harvard has called the greatest dissent ever written, even if it is a concurrence. What Killenbeck does is to dig deeply into both opinions, and much as I have studied Whitney, it gave me great pleasure to see it from a different angle and learn more about it. I must confess, I probably would have accepted Todd Pepper’s article for the title alone, “Chief Justice Melville Weston Fuller and the Great Mustache Debate of 1888.” Pepper, Fowler Professor of Public Affairs at Roanoke College, adjunct professor at Washington & Lee Law School, and a pre­ vious contributor to the Journal, gives us a great story that is almost impossible to take seriously in this time of plague. Oh to be young and innocent in 1888! There have, fortunately, been no disabled justices in recent years, but at other times in our history men who sat not only on the high court but in the district and circuit tribunals could not, by cause of physical or mental infirmity, fulfill their responsibility. Some, like Holmes and Brandeis, stepped down voluntarily. But others had to be “pushed,” often for political reasons. The Constitution ignores this problem, and the only valid means of removing a judge is impeachment. Judge Glock, a Senior Policy Advisor at the Cicero Institute, looks at this issue and how political pressure from the legislative branch, as well as gener­ ous retirement packages, opened up judicial seats. 112 JOURNAL OF SUPREME COURT HISTORY Another old friend is Robert Post, Ster­ ling Professor of Law and former dean at the Yale Law School. Bob is working on the Taft Court volumes for the Oliver Wendell Holmes Devise, and has asked me from time to time to read drafts. In one section, he deals with what is one of the landmark decisions of the Taft Court, Myers v. United States (1926). I asked him if he could give me an article for the Journal on the case, which he graciously agreed to do. Taft, a former president, tried to use the case to bolster the authority of the presidency. His opinion evoked dissents from three justices, including one of Brandeis’s most important, and the Myers decision was to be effectively overruled less than a decade later in Humphrey's Executor v. United States (1935). When we think of the Supreme Court and World War 11, the cases that always grab our attention are three in number that deal with the Japanese internments. But there were other cases involving enemy aliens and the courts, and Charles J. Sheehan, a lawyer for the federal government, tells us about one of them, involving a Japanese sailor who was injured and fought to get his case for compensation before the courts, seeking justice. Kumezo Kawato, despite a ruling from the nation’s highest court, did not get justice, and after his release from internment he returned to Japan. Because of the plague, the Society did not hold its annual meeting at the Supreme Court this past June. As a result, there was no...

The Landmark Decision of Harrison v. Laveen: Arizona Indians and the Right to Vote

The Landmark Decision of Harrison v. Laveen: Arizona Indians and the Right to Vote

A Comparative Study on Police Use of Force Standards in Korea and the United States: A Focus on the Objective Reasonableness Standard

최근 우리나라 경찰청이 마련, 시행에 들어간 “경찰 물리력 행사의 기준과 방법에 관한 규칙”에는 “객관적 합리성 원칙”이 새로운 경찰 물리력 사용 기준으로 채택되었다. 미국 연방대법원의 랜드마크 판례인 Tennessee v. Garner, Graham v. Connor를 통해 정립된 “객관적 합리성 원칙”에 따라 미국 경찰관은 합리적인 현장 경찰관의 관점에서 전체적인 현장 상황을 고려하여 물리력을 사용하여야 하며, 사안의 긴박성, 급박성, 시간 부족 등 경찰 업무의 특수성을 고려하여 합리적인 실수로 과잉 물리력을 행사한 경우에는 제한적 면책을 인정하는 특색이 있다. 비록 우리나라 경찰이 선제적으로 “객관적 합리성 원칙”을 도입하였으나 우리나라 법원이 향후 경찰 물리력 사용 적법성 판단 기준으로 활용할 것인지에 대해서는 알 수 없는 상황이다. 이 연구에서는 미국 연방법원과 우리나라 법원의 경찰 물리력 사용에 관한 판례를 비교하여 “객관적 합리성 원칙”의 도입 가능성에 대해 분석하였다. 분석 결과 미국과 우리나라 법원이 활용하고 있는 경찰 물리력 사용 시 고려 사항은 동일한 것으로 확인되며, “국가배상법” 상 경찰관의 과실로 인한 과잉 물리력 사용 시에도 우리나라 대법원은 현장의 급박성을 고려하여 경찰관이 대상자가 초래하는 위해의 정도를 제대로 판단할 시간적 여유가 없는 경우 다소 부적절한 물리력 사용이라 하더라도 형사상 책임을 물을 수 없다고 판시하고 있다. 또한 긴박한 상황 또는 전례가 없는 특수한 상황에서의 경찰 물리력 행사의 경우에도 비록 사후적으로 다소 과잉 물리력 행사에 해당한다 하더라도 국가배상법상의 과실 책임을 면할 수 있는 것으로 보이는 유사판례도 존재하기 때문에 “객관적 합리성 기준”이 향후 우리나라 법원에서도 충분히 활용 가능할 것으로 판단된다. 마지막으로 이 연구에서는 “객관적 합리성 기준”이 도입되기 위한 대대적인 경찰 물리력 사용 교육·훈련제도 개편 등 정책적 제안도 논의하였다.The new police use of force guidelines in the Korean Police Agency includes “objective reasonableness standard” for the first time in the history of Korean policing. Originally, “objective reasonableness standard” established by a series of the U.S. Supreme Court’s landmark decisions including Tennessee v. Garner and Graham v. Connor guide police officers regarding proper use of force by mandating them to consider the totality of the circumstances. In particular, “objective reasonableness standard” allows the possibility of committing objectively reasonable mistakes about the amount of force that is necessary in a particular situation when the circumstances are tense, uncertain, and rapidly evolving, which exempts officers from civil liability under Section 1983. Nevertheless, “objective reasonableness standard” has not been officially adopted for the judicial review in Korea. In an effort to introduce “objective reasonableness standard” in the Korean legal system, the current study examined the police legal liability related to use of force in both Korea and the United States. Upon analysis, the present found that the two countries are using almost identical elements in deciding police use of force legal liability. Furthermore, the Supreme Court of Korea has acknowledged the urgency in police use of force situations, exempting police officers from legal liability in several use of excessive force cases. Finally, the current study proposed several policy implications that may contribute to the adoption of “objective reasonableness standard” in Korea.

Achievement, Politics, and Policy Shifts: Expert Report on Achievement for Martínez/Yazzie v. New Mexico

The achievement levels from 2007 to 2016 in the state of New Mexico demonstrate an educational system that is failing its Hispanic, American Indian, and English learner students. During this period of time, close to 30% of Hispanic students were proficient or above in reading, math, and science, and close to 25% of American Indian students were proficient or above. Moreover, a change in politics that informed changes in curriculum and testing policies during this period of time show lowering proficiency rates and grater disparities between groups. Further and more problematically for a state that is historically bilingual, and as bilingual students tend to be Hispanic and American Indian, English learners in most recent years tested at the lowest levels of proficiency and above. These sobering achievement levels highlighted in this article were used as evidence and as testimony in the expert report in the conjoined educational opportunity cases Martínez v. New Mexico (2019) and Yazzie v. New Mexico (2019), which was a case filed on behalf of underrepresented families and students in New Mexico against the state’s Public Education Department. The result was a landmark decision that decided children in New Mexico indeed have a right to an education and mandated the state to respond immediately to these disparities. Herein are the findings and conclusions from the expert report and testimony from the Martínez v. New Mexico (2019) and Yazzie v. New Mexico (2019) Trial Declaration of Cristobal Rodriguez.

The Justicization of Politics: Constitutionalism and Democracy in Germany after 1949

By engaging with the historiography of German constitutionalism after 1949, this article reconstructs a profound change of the meaning of the concept of constitution. The constitution evolved from a rather formal and provisional instrument of government to the just value order of politics, which scholars worldwide have celebrated as the value model of constitutionalism. The article critically examines the democratic consequences of this justicization of politics and disentangles the relationship between law and politics within German constitutional thinking by tracing its traditions and transformations back to scholarly debates and early Constitutional Court’s landmark decisions.

Confédération Paysanne and Others v. Premier Ministre and Ministre De L'Agriculture, De L'Agroalimentaire Et De La Forêt (C.J.E.U.)

On July 25, 2018, the Court of Justice of the European Union (CJEU, the Court) rendered its judgment in the case C-528/16, Confédération paysanne and Others. It is a landmark decision in that the Court essentially decided that genome-edited organisms are “genetically modified organisms” (GMOs) governed by the EU's regulatory framework on GMOs without exception.

Case Law Notes: Landmark Transfer Pricing Case on Applying the Arm’s Length Principle to Shareholder Loans in Germany

This article examines the Federal Tax Court’s landmark decision of 27 February 2019 on the application of the arm’s length principle under German tax law. The Federal Tax Court reaffirmed that the mere absence of security/collateral does not justify re-characterizing a shareholder loan into equity. More importantly, the court held that German transfer pricing rules permit not only an adjustment of the price of a controlled transaction for the purpose of determining a taxpayer's income but allows, beforehand, the alteration of other terms or conditions that were made between the related parties, replacing actual conditions by arm’s length conditions. More specifically to the disputed case of an unsecured shareholder loan, an arm’s length loan must now be determined on the rebuttable presumption that the loan is deemed to be secured, even if no security has actually been provided or, presumably, the interest rate includes a risk premium. Arguably, the court denied the significance of implicit group support as a general rule. All this could further expand the reach of transfer pricing adjustments in Germany. In audit practice, it is expected that other terms and conditions of controlled transactions – apart from the price – will be now increasingly scrutinized in German tax audits.

Burlington Resources Inc. v. Republic of Ecuador: a landmark decision in environmental counterclaims

Burlington Resources Inc. v. Republic of Ecuador: a landmark decision in environmental counterclaims

Citizens United vs. FEC and corporate political activism

This paper analyzes the effect that the U.S. Supreme Court's landmark decision on Citizens United vs. FEC had on corporate political activism. The decision opened the door for corporate treasuries to engage in independent political spending. Politically connected firms have lower announcement returns at the ruling than non-connected firms. The estimates suggest that the value of a political connection decreases by $6.9 million. To evaluate the effect of Citizens United on corporate political activism, we explore the fact that Citizens United also lifts bans on independent political spending in states where such bans existed. After the ruling, firms headquartered in states where bans are lifted have fewer state-level connections relative to firms in other states. Overall, our evidence supports the hypothesis that independent political spending crowds out political connections. We do not find any significant crowding-out effects of independent political expenditures on lobbying activity, executive contributions, and political action committees (PAC) contributions.