Landmark Decision Research Articles

Invited Commentary: Role of the Radiologist in Pregnancy-associated Cancer.

Invited Commentary: Role of the Radiologist in Pregnancy-associated Cancer.

The Control Theory as Multidimensional Concept

Abstract The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.

FEDERAL ALMAN ANAYASA MAHKEMESİ İÇTİHATLARI VE AB HUKUKU

Federal Alman Anayasa Mahkemesi içtihatlarıyla AB Hukukuna yön veren bir role sahiptir. Anayasa mahkemesinin AB Hukuku ve ulusal hukuk ilişkisinde 1974 tarihli “Solange I” kararı, 1986 tarihli “Solange II” kararı, 1993 tarihli “Maastricht” kararı, 2009 tarihli “Lizbon” kararı, 2010 tarihli “Honeywell” kararı ve 2014 tarihli “OMT” kararı bu bağlamda milat teşkil eden kararlar olarak AB hukuk literatüründe yer almaktadır. Makalede Federal Alman Anayasa Mahkemesi’nin AB birincil (primer) hukukunun ultra-vires denetimi ve anayasal kimlik denetimi bağlamındaki içtihatlarında ortaya çıkan gelişime ışık tutulması yanı sıra, diğer anayasa organları ile (Federal Meclis ve Federal Hükümet) entegrasyon rolü paylaşımı ve AB Divanı ile ilişki değerlendirilmektedir.

Constitutionalizing Women’s Equality in India: Assessing the Sabarimala Decision

In 2018, in Indian Young Lawyers Association (IYLA) v State of Kerala, popularly known as the Sabarimala case, the Indian Supreme Court struck down a rule that prevented girls and women in the 10-50 age group from entering the Sabarimala temple in Kerala. The Court, in a 4-1 decision, held that the temple rule violated women’s right to equality and right to worship and was not protected under the right to religious freedom. Sabarimala is a landmark decision. For the first time,the Court insisted that all discrimination must be tested against constitutional values and discrimination that perpetuates stereotypes and disadvantage will not withstand constitutional scrutiny. It emphasised the importance of substantive equality in contesting discrimination against women and challenging the structures of oppression that exclude women. Finally, the Court linked women’s equality rights with equal citizenship. Focusing on the Sabarimala decision, this paper evaluates the recognition of women’s rights in Indian constitutional jurisprudence and assesses its transformative potential. The paper aims to place women’s equality rights squarely within constitutional discourse; to further develop understandings of justice that will constitutionalize women’s equality rights and ensure their inclusion in constitutional doctrine and discourse and to create salient changes in women’s everyday lives.

An Apology Leading to Dystopia: Or, Why Fuelling Climate Change Is Tortious

AbstractThis invited response commentary engages with Benoit Mayer's case comment, published in this issue of Transnational Environmental Law, on the recent landmark decision by the District Court of The Hague (The Netherlands) of May 2021 in Milieudefensie v. Royal Dutch Shell. The Court ordered the oil giant Royal Dutch Shell to reduce at least 45% of its greenhouse gas emissions by 2030 compared with 2019 levels. In this response commentary I build on and contrast Mayer's examination of how the Court arrived at this target. In doing so, I discuss the normativity of tort law compared with international law against the background of the ideas of Martti Koskenniemi. I conclude that the District Court legitimately qualified Shell's business plans as tortious. The specific reduction target is the result of civil procedural rules on evidence and the debate between the parties. In the light of this analysis, I respectfully reject Benoit Mayer's suggestion that sectoral practices should play a more significant role in determining corporate climate mitigation obligations. In my view, such an approach would be dangerously apologetic and lead to dystopian outcomes.

Roe v. Wade and Other Social Issues in 2022

With the confirmation of Justice Amy Coney Barrett to the U.S. Supreme Court in the waning days of the presidency of Donald Trump, a five‐judge conservative block (along with Justices Thomas, Alito, Gorsuch, and Kavanaugh) was established in the nation's highest court. A revisiting and potential reversal of the landmark decision in Roe v. Wade in light of the shift in the Court's perspective was largely expected. Yet, when Justice Alito's draft opinion was leaked in the Spring, protests erupted across the country. The risk that many women see from a reversal became very real. Almost immediately, states began talks to discuss legislation to either bolster or further distance themselves from the Roe v. Wade decision. Some companies, such as Uber and Amazon, have already announced that benefits would be provided to assist employees impacted by a reversal of the decision in Roe v. Wade.

Abortion Travels in Contemporary American Cinema: Parental Consent and the Bumpy Ride to Termination in Eliza Hittman’s Never Rarely Sometimes Always and Rachel Lee Goldenberg’s Unpregnant

Abstract Although abortion was legalized in 1973 through the US Supreme Court’s landmark decision in Roe v. Wade, it is state legislatures that have ultimately acted as the final arbiters on the matter ever since. As a result, only over the course of the last decade, more than two hundred abortion restrictions have been enacted nationwide in the United States. As more and more restrictions are put in place in an attempt at policing women’s bodies, the practice that came to be known somewhat inappropriately as ‘abortion tourism’ is becoming increasingly common. More and more women travel across state lines in order to benefit from a safe procedure while evading the legal limits imposed upon them in their home states. This is even more acutely so in the case of young, under-age women, as only a few states do not have parental consent statutes covering abortion provisions. It is against this background that my article discusses two recent movies which tackle the issue of teen pregnancy and ‘abortion mobility,’ Never Rarely Sometimes Always (2020) and Unpregnant (2020). I look at how both travel narratives illustrate, in different genres and manners, the hurdles (young) women have to navigate to gain access to necessary medical care and expose the state-sanctioned obstacles to abortion in two stories about female friendship and empathy above all.

The Overturning ofRoe v. Wade: Are Abortion Rights in Canada Vulnerable?

AbstractThe revelation, via a leaked draft, that the Supreme Court of the United States was going to overturn the landmark decision inRoe v. Wade(1973) sparked immediate questions about whether a similar retrenchment of abortion rights could occur in Canada. Key legal, structural, and political cultural factors mitigate the forces of American-style erosion of norms on the Supreme Court of Canada and in our broader politics surrounding abortion rights. Despite this generally optimistic comparative context, complacency about the status of abortion rights in Canada would be unwise. This short Currents article canvasses factors crucial for not only preserving the policy status quo in criminal law (that is, the absence of criminal law abortion regulation in Canada), but also for advancing the scope of abortion rights in the positive sense, as serious barriers to access persist at the provincial level.

Assisted Suicide in Germany: The Landmark Ruling of the German Federal Constitutional Court of February 26, 2020

AbstractOn February 26, 2020, the German Federal Constitutional Court (BVerfG) declared—for the first time in its history—a criminal prohibitory law (strafrechtliche Verbotsnorm) from the German Criminal Code null and void.1 The provision in question—Section 217 of the German Criminal Code—dealt with the controversial issue of assisted suicide. This case study will briefly examine the previous regulation pertaining to assisted suicide in Germany under Section 217, before scrutinizing its subsequent unconstitutionality as a consequence of the BVerfG’s landmark decision. In order to do so, this article will explore the legal background of the decision, the fundamental rights which were held to have been infringed by Section 217, and propose potential ways of regulating assisted suicide in Germany in the future.

The Criminal Liability of Corrections Officers in German Prisons: The Landmark Decision of the Federal Court of Justice from November 28, 2019 (2 StR 557/18)

AbstractWithin the criminal justice system, there is always a balancing act between two conflicting tenets: incarcerating the prisoners as a preventive measure, on the one hand, and, on the other, aiming to rehabilitate them. Without a proper transition, it is possible that prisoners will reoffend upon release. German legislation allows corrections officers to grant relaxed terms of imprisonment to prisoners who have proved themselves suitable. However, on June 7, 2018, corrections officers were essentially deprived of this power when the Regional Court of Limburg convicted two corrections officers of negligent killing after a prisoner, to whom they had granted relaxed terms of imprisonment, killed someone during one of his periods of release. In the immediate wake of this controversial judgment, corrections officers throughout Germany were seemingly left with two options: either to remain conscientious and attempt to rehabilitate the prisoners with the underlying risk of being subject to prosecution themselves, or to ensure their own “safety”, thereby jeopardizing prisoners’ crime-free futures. This article provides an overview regarding negligently committed offenses under German law, analyzes what led the trial court to this radical decision, and assesses why the final appeal court overruled the Regional Court’s decision.

‘Incremental and cumulative’: Griffiths and the limitations of the Native Title Act 1993 (Cth) in dealing with compensation for cultural loss

ABSTRACT Coming more than 25 years after Mabo v Queensland [No 2] (1992) 175 CLR 1, the landmark decision in Northern Territory v Griffiths (‘Griffiths’) (2019) 269 CLR 1 is the first judicially determined award of compensation for both economic and non-economic, or cultural loss under the Native Title Act 1993 (Cth). Although some attention has been given to the economic loss component of the decision, very little has been written about the most important aspect of the decision, cultural loss, and what this aspect means for First Nations Australians in reality. This article examines the legal and practical implications of the decision in Griffiths as it pertains to cultural loss and in the broader context of colonialism, native title law and First Nations’ law. I argue that these implications demonstrate how compensation for cultural loss under the Native Title Act 1993 (Cth) perpetuates colonialism and will fail many First Nations Australians in properly compensating for the loss of connection to country.

A Suggestion for Making the Federal Sentencing Guidelines and the U.S. Sentencing Commission Reflect the Realities of Post-Booker Sentencing

It has been approximately seventeen years since the Supreme Court issued its landmark decision in United States v. Booker. In Booker, the Court transformed the Federal Sentencing Guidelines from mandatory to advisory. Nonetheless, the front-end of federal sentencing looks the same today as it did pre-Booker—the U.S. Probation Office prepares a presentence report (PSR), the parties litigate over the guidelines calculations set forth in the PSR, and the judge makes a ruling as to the appropriate guidelines range. The work of the U.S. Sentencing Commission also looks largely the same today as it did pre-Booker. This essay argues that it is time to change the guidelines to reflect the realities of post-Booker sentencing. More specifically, this essay argues that the complex and intricate guidelines need to be radically simplified. If the guidelines are simplified in the manner proposed, then the Sentencing Commission’s primary function would become the collection, analysis, and dissemination of sentencing data. Although the changes discussed in this essay would not result in a perfect federal sentencing system (far from it), they would result in a more efficient one that better reflects the practical realities of post-Booker sentencing.

NATIONAL EDUCATION POLICY (NEP2020): REFLECTIONS, CHALLENGES AND THE WAY FORWARD

The present Government in a landmark decision on 29th of July 2020 announced the New Education Policy to energize the educational system of India. It covers all the aspects of human resources including elementary to higher education with a proper focus on technical education. The New policy aims at the cohesive and uniform development both in rural and Urban India to realize the new vision of ‘Atamnirbhar Bharat’. Although, the New Education Policy (NEP2020), as per its objectives, is quite ambitious and visionary and has the capacity the gear up the entire educational system of the country to open new vistas of future but its real success depends upon the seriousness and the level of resources available for its execution in totality. This paper attempts to identify the challenges in the proper implementation of NEP 2020 and finding its solution as well. The study uses secondary data from the various available sources. There is strong presumption of the Researcher that the challenges anticipated in the implementation of NEP2020, can be very well tackled if all the stakeholders in general and the Government in particular, shows its commitment to change their words into actions.

“Who is a Convert?” – The Law of Return and the Legality of Reform and Conservative Conversions in Israel

The Law of Return cements the connection between Israel and world Jewry by determining who is eligible as a “Jew” for full and immediate Israeli citizenship. It has also been the source of legal and political challenges since it was enacted in 1950 and until today because of controversy over “who is a Jew” for purposes of the Law. In March 2021, the Supreme Court ended decades of debate around the question “who is a Jew by choice” and “whose conversions will be recognized” for the purpose of the law by extending recognition to persons converted under Reform and Conservative auspices in Israel. This article traces the legal and political background of this landmark decision and considers its impact.

In Case You Haven't Heard…

Last week, as Mental Health Weekly went to press, we learned that a federal appeals court on March 22 reversed a landmark decision that required United Behavioral Health, the country's largest behavioral health insurer, to adopt more stringent standards for mental health and substance abuse treatment, Modern Healthcare reported. The Ninth Circuit ruled that the UnitedHealth subsidiary adequately followed plan terms when it denied the challenged claims. MHW will provide more information and field reaction in the April 4 issue.

Role Theory Perspectives: Past, Present, and Future Applications of Role Theories in Management Research

Role theories examine how individual behavior is shaped by prevailing social roles and provide insights into how behavior is perceived by others in light of such roles. Current movements for police reform as well as the landmark decision by the U.S. Supreme Court concerning the employment rights of LGBTQIA individuals have brought conversations concerning roles and their potential impact to the forefront of public discourse. Academic perspectives in management research have aided in building knowledge concerning how roles impact individuals and organizations in a variety of research domains, including entrepreneurship, human resource management, organizational behavior, and strategic management. While the utilization of role theory has gained tremendous momentum over the past two decades, its central tenets are often blurred given that several related but unique perspectives surrounding roles exist in the literature. We trace the origins and development of specific role theories by defining central constructs to bring clarity to the conceptual ambiguities between various role theories and key concepts. Next, we provide an integrative review of empirical role research in management journals over the past 20 years. Here, we identify the five most prominent research themes in the management literature: roles and identity, work–nonwork interface, biases and stereotypes, career life cycles, and ethics and other-oriented behavior. Finally, we provide an agenda for future research that highlights missed opportunities in management research that draws from the key themes identified in our review.

The Price Tag of "Pay-for-Delay"

In a landmark decision nearly a decade ago, the U.S. Supreme Court opened the door for antitrust suits against brand and generic pharmaceutical companies who engage in collusive settlements to delay the time for the generic to come to market. With these “pay-for-delay” agreements, brand-name companies offer prospective generics some form of compensation in exchange for the generic’s promise not to enter the market until an agreed-upon date. Laying the groundwork for the lawsuit that would eventually lead to the Actavis decision, the Federal Trade Commission (“FTC”) published a study estimating that pay-for-delay agreements cost American consumers $3.5 billion annually, a figure that has been cited repeatedly by scholars and policymakers alike.
 To understand the state of pay-for-delay agreements, this Article presents an in-depth examination of the burden that pay-for-delay imposes, both on society at large and on individual patients, and explores the modern legal landscape that has emerged since the Supreme Court’s historic pronouncement. Part I describes pay- for-delay agreements, exploring the literature on the potential harm of such agreements among pharmaceutical competitors. Part II presents a new analysis demonstrating that the cost of pay-for-delay to American consumers is far greater than anyone has recognized, and well beyond the $3.5 billion figure cited by the FTC in 2010. We applied six different methodologies to provide as fair and broad a view as possible. The range of methodologies show that at a minimum, the cost of pay-for-delay settlements on the U.S. population between 2006 and 2017 is $6.2 billion per year—almost double that of the FTC’s estimate. The methodology with the largest result suggests that the cost could be as high as $37.1 billion per year— ten times higher. Part III argues that courts are allowing this costly problem to flourish unchecked. This part reviews pay-for-delay decisions since Actavis, arguing that the courts have failed to properly analyze such cases from the perspective of all three notions inherent in the words “pay,” “for,” and “delay.” Finally, Part IV offers a path forward through the doctrinal haze.

Stock Market Reaction to the Supreme Court’s Consideration of PASPA

Abstract: A landmark decision (Murphy v. NCAA) by the Supreme Court of the United States (SCOTUS) in 2018 ruled that the federal government could not prohibit individual states from allowing sports wagering. Our study explicitly assesses the stock market’s response to this case’s progression through legal review phases, culminating with a landmark SCOTUS decision. Surprisingly, we find that the stock market failed to efficiently interpret key events precipitating SCOTUS’ eventual decision. Even though serious indications suggested that the Professional and Amateur Sports Protection Act (PASPA) was likely to be overruled, markets did not acknowledge such a possibility early. Instead, prices only responded when SCOTUS’ ruling was finalized.

German Federal Tax Court Rules in Favour of Taxpayer in Transfer Pricing Cases on Intercompany Financing Transactions

In two recent landmark decisions, the German Federal Tax Court has reaffirmed its preference for applying the (internal or external) CUP method for the determination of intra-group interest rates if comparables are less than ideal. While the creditworthiness of the borrower should be regarded on a stand-alone basis, the effects of the group affiliation may need to be considered. The burden of proof regarding the arm’s length nature of intra-group interest rates rests with the tax authorities.

Tending the nurseries of democracy: Mahanoy Area School District v. B.L. and the future of student speech rights

ABSTRACT In Mahanoy Area School District v. B.L. (2021), the Supreme Court held a public school could not discipline a student for posting offensive snaps about her cheer team on social media. In an 8-to-1 decision siding with the student, the Justices reaffirmed Tinker v. Des Moines Independent Community School District (1969), a landmark decision by the Warren Court that extended speech rights to public school students. The majority in Mahanoy was, however, unwilling to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off-campus’ speech and whether First Amendment standards must give way off-campus to the school’s desire to prevent … disruption of learning-related activities.” Instead, Justice Breyer offered a narrow opinion confined to the facts of the case that provides little practical guidance to students, school officials, and lower courts dealing with thorny issues related to off-campus speech. Further compounding matters, the “three features of off-campus speech” identified in his majority opinion will likely lead to more restrictions governing what students may say on their own time and using their own equipment.