Lower Courts Research Articles

Title VII and Religious Accommodations in the Workplace After Groff v. Dejoy (2023)

The United States Supreme Court in Groff v. DeJoy rejected a 50-year precedent regarding the application of Title VII of the United States Civil Rights to requests by private and public employees for Title VII workplace religious accommodations. The article evaluates the impact of 73 U.S. District Court and U.S. Court of Appeals decisions decided after Groff to determine whether Groff has had an impact on how lower federal courts have evaluated requests for Title VII workplace religious accommodations. The article also evaluates the role of U.S. District Courts as gatekeepers for Title VII workplace religious accommodation lawsuits. Finally, the article discusses the impact of Groff on the most common types of workplace religious accommodation requests. The article argues that employers will have greater difficulty persuading U.S. District Court to grant motions to dismiss or motions for summary judgment to end Title religious accommodation lawsuits.

Legal consequences of the statement of provocation by the defense party: scientific and practical aspects

The article examines the legal consequences of the defense’s declaration of provocation of a crime. Based on the analysis of the practice of the European Court of Human Rights and the Supreme Court, the opinion was formulated that the declaration of the commission of a crime as a result of provocation by the defense gives rise to the corresponding obligations for the defense and the prosecution, as well as the court. It was analyzed that as a result of the influence of the precedent practice of the European Court of Human Rights, the practice of the Supreme Court began to form regarding the position of the defense on provocation of a crime, according to which the contradiction of the position of the defense, i.e. when the applicant denies the fact that he committed a crime and at the same time declares that he was provoked to commit it, is the basis for the court’s refusal to verify such an application, citing the relevant reasons in the decision. Based on the study of the principle of adversariality of the parties in criminal proceedings, the thesis that it is the defense party that is obliged to prove the presence of provocation, to indicate which facts and circumstances confirm this with reference to specific evidence examined at the court hearing, is substantiated. In turn, the prosecutor, supporting public accusations, except for the circumstances specified in Art. 91 of the Criminal Code of Ukraine, guided by the standard of proof «beyond a reasonable doubt», is obliged to prove the absence of provocation of the crime. Failure to prove «beyond a reasonable doubt» the absence of provocation is equivalent to proving its presence and causes legal consequences in the form of an acquittal by the court. It has been proven that when one of the arguments of the defense side was the presence of provocation of a crime, the court is obliged to properly evaluate both the arguments of the defense side and the arguments of the prosecution regarding the presence or absence of such provocation. According to the results of the analysis of the decisions of the Supreme Court in which the lower courts did not evaluate the arguments of the defense about provocation, or formally evaluated them formally, it was concluded that this is a significant violation of the requirements of the Criminal Procedure Code, which prevented or could have prevented the court from adopting a legal and justified court decision.

Anchoring or Expanding? Gender and Judicial Nominations

Since both parties committed to adding women to the federal bench in the 1970s, Democratic and Republican presidents have sought out qualified women for judgeships. Diversifying the bench offers symbolic and substantive benefits to both parties, but those benefits come at the cost of finding non-traditional nominees. Presidents can take one of two different approaches to diversification: maintain existing diversity by anchoring women to a seat, or increase diversity by considering women for every opening. Given presidents consider many factors, including electoral benefits, when selecting potential judges, we expect partisan politics influence approach. Examining all lower court nominations made between 1981 and 2022, we find that Republican presidents tend to anchor while Democratic presidents expand diversity. Additionally, Senate diversity influences diversification, as women are more likely to get nominated when the relevant state Senate delegation includes a woman. Overall, we offer new perspectives on the mechanisms of judicial diversification.

Well said!: Professional norms and female justices' evaluation of lower court opinion text

AbstractSupreme Court justices' opinions shape the contours of case law binding throughout the United States. Importantly though, justices do not write their opinions de novo. Rather, they routinely draw on lower court judges' opinion language when crafting opinions. In doing so, justices stretch the substantive impact of lower court judges' reasoning beyond the boundaries of their circuits. However, justices do not draw equally on lower court opinions; while previous work often ties this to judges' professional qualifications, we draw on work stressing female supervisors are more likely to enforce professional norms on subordinates. We argue female justices are more likely to draw upon lower court opinions complying with professional norms because of greater implicit norm internalization over the course of their careers. We test this proposition with a quantitative textual analysis of the justices' opinions and lower court opinions. We find support for our argument. This raises normative concerns about the overall impact of greater judicial diversity.

PROBLEMS OF JUDICIAL ACTS REVIEW IN THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

The work is devoted to studying the problems of reviewing court decisions of lower courts by the Supreme Court of the Republic of Kazakhstan. This article examines the control of higher courts over lower courts' activities in the system to ensure the rule of law in case consideration and decision-making. The procedure of reviewing judicial decisions by a higher court that have become effective and those that are not effective in the order of cassation and supervisory review, as well as representations of the President of the Supreme Court, and protests of the Prosecutor General of Kazakhstan, are investigated. Problems of citizens' implementation of their constitutional rights to judicial protection and appeals against court decisions are highlighted. The grounds for reviewing judicial acts that have entered into force, the range of subjects entitled to apply for review, criteria for the admissibility of appealing judicial acts as well as procedure for preliminary consideration of complaints and protest by a judge alone is shown. The analysis of these issues allows us to conclude that the current grounds and procedure for reviewing judicial decisions of the appeal and cassation courts based on the submissions of the Chairman of the Supreme Court and the Attorney General of the Republic of Kazakhstan firstly hinder the realization of citizens' constitutional right to judicial protection, including the right to appeal against judicial decisions, and secondly prevent the formation of consistency in judicial practice. The lack of guidance to lower courts on reviewing judicial decisions by way of cassation and supervision has once again convinced courts of their inability to achieve consistency in the interpretation and application of law, as well as failure to contribute effectively to citizens' exercise of the right to justice. The paper provides a critical analysis of judges, lawyers, and legal experts on the current process for the Supreme Court of the Republic of Kazakhstan to review appeals and cassation court decisions. At the end of the paper, the author draws conclusions and makes suggestions regarding the enhancement of the constitutional right to judicial protection and uniformity in court practice.

부당 보전처분을 이유로 한 손해배상 - 대법원 2023. 6. 1. 선고 2020다242935 판결 -

If the creditor of a preservative measure loses the litigation on the merits, the creditor's intention or negligence in executing the preservative measure is presumed. This is the established position of our precedents. This precedents’ position is basically reasonable because preservative measures are made under the sole responsibility of the creditor based on an unilateral vindication by the creditor. Unless there is special evidence to the contrary, the creditor who loses the litigation on the merits is responsible for compensating the debtor for the damages suffered by the execution of the wrongful preservative measure. However, it is necessary to approve the rebuttal of presumption of the creditor’s intention or negligence more flexibly considering the concrete validity of each case. Especially when there are specific circumstances in which it is difficult to attribute the execution or maintenance of preservative measures solely to the creditor, it is not appropriate to place the responsibility entirely on the creditor. Examples include: Where legal assessment is difficult due to complex facts. Where the result of the litigation on the merits is overturned by a higher court due to such difficulties. Where it is difficult to determine whether it is due to a gap in facts or a gap in legal evaluation because the facts and the legal evaluation ore the interpretation of the law are closely intertwined. In the case of the the Supreme Court Decicion, the complex factual situations involving the amount of damages against the infringement of intellectual property rights led to divergent conclusions of the lower and higher court. The conclusions were different not because the facts that underlie the judgments were decisively changed, but because there were differences in legal evaluation or interpretation of the same facts. In these cases, it would be appropriate to consider that there is a substantial reason to rebut the presumption of the creditor's intention or negligence. There is a clear need to warn creditors to prevent wrongful preservative measures and to make creditors bear the damages from them. However, it is also undesirable to make the creditors hesitate to exercise their rights even when there is significant reason to believe that they are justified. As the creditor’s responsibility for wrongful preservative measures is imposed from the perspective of fairness, when and to what extent the responsibility should be imposed must be determined by fully considering the concrete facts and special characteristics of each case.

A Study on the Distinction between Construction Project Owners and Construction Contractor under the Occupational Safety and Health Act - Focusing on Lower Court Cases -

A Study on the Distinction between Construction Project Owners and Construction Contractor under the Occupational Safety and Health Act - Focusing on Lower Court Cases -

Did the Solicitor General Hijack the Warhol v. Goldsmith Case?

The main dispute between Lynn Goldsmith and the Andy Warhol Foundation (AWF) between 2017 and 2022 was whether Warhol’s 1984 creation of sixteen works of visual art based on Goldsmith’s photograph of Prince under an artist reference license was fair use or infringement. Even though the trial court and the Second Circuit disagreed about whether these creations were fair use, the Court did not address that dispute at all because it interpreted Goldsmith’s merits brief as having abandoned that claim. This Article considers the influence of the Office of the Solicitor General (OSG)’s brief on the reframing of the Warhol case as only concerning the transformativeness (or not) of a 2016 license granted by the AWF to Condé Nast to the use of one of Warhol’s Prince Series works on the cover of a commemorative magazine. After reviewing the evolution of this copyright litigation and the lower court decisions, this Article speculates about how and why OSG may have chosen to narrow the question presented in the Warhol case and why Goldsmith might have acquiesced in this. The OSG’s reframing of the issue enabled the Court to avoid addressing a largely invisible issue in the Warhol case: the implications of § 103(a) of the 1976 Copyright Act for AWF’s claims of copyright in Warhol’s Prince Series works. Even though the Court only ruled that AWF’s 2016 license grant was nontransformative, the Article suggests that much of the Warhol decision’s dicta is nonetheless likely to influence future fair use analyses. It also considers the viability of AWF’s claim of copyright in the Prince Series and suggests alternative ways the Court could have resolved the Warhol case.

Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision—one that had been dormant in the lower court fair use jurisprudence—about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair use doctrine. The core of the Court’s reconciliation centers around three ideas. The first is the need for an independent justification for a use to even qualify for fair use. Transformation on its own does not provide such a justification, which must be instead identified independently. Related is the second idea, that the secondary use must reveal a distinct purpose. Unlike the justification element, this step is comparative and heavily contextual. And the third element is the balance between transformativeness and commerciality, which the legislative text makes clear and Campbell had gone to extreme lengths to reinforce.

Exploring the Economic, Social, and Moral Justice Ramifications of the Warhol Decision

Beyond rectifying the interplay of the derivative work right and fair use, Justice Sotomayor’s vigorous, direct, and, at times, combative parrying with the dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith drove a dagger into the free culture movement’s critique of copyright law. The resulting decision repudiates the movement’s campaign to undermine the derivative work right through a simplistic transformativeness shortcut for applying the fair use doctrine. As this Article explains, the Copyright Act’s drafters enhanced the financial rewards to, economic power of, and control of copyrighted works by authors through the grant of a bundle of exclusive rights, including a broad exclusive right to prepare derivative works. The Act tempered those rights through limiting doctrines, express recognition and codification of the fair use doctrine, and a series of statutory limitations, exemptions, and compulsory licenses. The codification of fair use, however, was not intended to “change, narrow, or enlarge” the doctrine outside of its traditional bounds—criticism, commentary, news reporting, educational, and research uses—“in any way.” The legislative history further noted courts’ freedom “to adapt the doctrine to particular situations on a case-by-case basis,” “especially during a period of rapid technological change.” Congress saw licensing as a principal vehicle for supporting cumulative creativity and ensuring fair compensation to and control of derivative uses by authors. Notwithstanding this foundation and the Supreme Court’s faithful interpretation of the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., the fair use doctrine veered off course as lower courts collapsed Campbell’s nuanced framework into a simplistic transformativeness analysis. The collision of this approach with the derivative work right prompted the Supreme Court’s intervention. The resulting Warhol decision reinforced the economic and social empowerment undergirding the 1976 Act. After tracing the emergence of the free culture movement and the devolution of the fair use doctrine, this Article explores the economic, social justice, and moral right dimensions of the copyright regime reflected in the Warhol decision.

Invoking time limits for managing responses in US Senate Judiciary Committee lower court nomination hearings

Invoking time limits for managing responses in US Senate Judiciary Committee lower court nomination hearings

Incorrect interpretation of the law by the court

The subject of this study is the main trends that have developed in judicial practice related to the assessment of the correctness of the interpretation of the norms of law by the court. The purpose of the study was to identify the main approaches used by law enforcement agencies, primarily courts, in assessing the possible existence of an error in the interpretation of the applied law by a lower court.General scientific and special methods of scientific cognition were used in the research. Among them are analysis, synthesis, deduction, induction, the systematic method, the hermeneutical method and the legal-dogmatic approach. In particular, published court decisions were analyzed, scientific literature and current legislation were studied, after which conclusions were drawn about the state of law enforcement practice and the prevailing trends when considering by higher courts the issue of a possible error in the interpretation of the law committed by a lower court.The main content of the article is the results of the analysis of judicial practice, the purpose of which was to identify the main trends in judicial practice related to the assessment of the correctness of the interpretation of the norms of law by the court. The practice of applying the provisions of the procedural codes of the Russian Federation, providing for the consequences of a misinterpretation of the provisions of normative acts by the court, is considered. As a result of the conducted research, the main problems that courts face when assessing the correctness of the interpretation given by their colleagues from the lower court were identified. During the analysis, special attention was paid to such aspects as the causes of erroneous interpretation, ways to detect and eliminate the identified error, and the consequences of making an error.Based on the results obtained, conclusions were formulated, among which it is worth noting that judicial errors in the interpretation of normative acts are quite common. At the same time, procedural legislation regulates such situations in different ways in different types of legal proceedings. Having discovered a judicial error in interpretation, the higher court most often does not indicate specific norms that have been misinterpreted, but offers its own solution to the dispute. The errors of the courts in the qualification of those mistakes made by the lower courts were also noted.

The Dutch Preliminary Ruling Procedure in the Light of the European Directive on Representative Actions

Abstract Dutch civil law allows courts of first and second instance to refer preliminary questions to the Supreme Court. In mass claim disputes there may be a concurrence between the safeguards of the preliminary ruling procedure and the protection provided by Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. This working paper addresses several issues regarding this concurrence. These include legal certainty, the influence of non-parties, the costs and the duration. The authors come to the conclusion that the preliminary ruling procedure can be very useful in mass claim disputes, albeit that both the lower courts and the Supreme Court need to align their practice more closely with the safeguards of the Directive on a number of points. These findings may be relevant for other European jurisdictions that recently introduced a preliminary ruling procedure, or that are about to insert a preliminary ruling procedure in their civil procedural law system.

Cancellation of Sale-Purchase Agreement and Absolute Power of Attorney Clause Made Based on Debts and Receivables

The Sale and Purchase Agreement (hereinafter abbreviated to PPJB) is a preliminary agreement as an effort to overcome the obstacles of the parties who have not been able to make a Deed of Sale and Purchase (hereinafter abbreviated to AJB). However, in several cases abuse of the use of PPJB and Power of Sale has been found. PPJB and Power of Sale become a security agreement for debts. The PPJB contains a power of sale clause and a Power of Sale Deed which grants power from the owner of the land object (as the seller/party who has the debt/debtor) to the debtor (as the buyer/party who gives the receivable/creditor) to transfer land rights. Debtors who suffer losses because they do not intend to sell the land can file an effort to cancel the agreement. Based on the problem approach (statute approach), conceptual approach (conceptual approach), and case approach (case approach), namely various decisions that have legal force, it can still be concluded that the Supreme Court and lower courts have maintained the unity of law application and consistency of decisions, especially regarding legal smuggling. Sale-Purchase Agreements and Absolute Power of Attorney Clauses Made Based on Debts and Receivables, by declaring such agreements null and void by law even if the agreement is made based on a Notarial Deed or Authentic Deed. Application for cancellation of agreement due to fraud, coercion or abuse of circumstances (misbruik van omstandigheden).

К вопросу о государственной пошлине как инструменте процессуальной экономии

The article analyzes the possibility of solving the problems of optimizing civil proceeding by changing the approach to the issue of court fee. It must be said that even the judicial community does not have an unambiguous position about increasing court fees. Thus in 2017 the Chairman of the Supreme Court of the Russian Federation, V.M. Lebedev, removed the item of increasing court fees from the consideration by the Plenum of the Supreme Court of the Russian Federation, noting that this initiative could have negatively affect to the realization of the right to access to justice. Nevertheless, already in 2018, the Chairman of the Council of Judges of the Russian Federation, V.V. Momotov, expressed the idea of the need to increase unfairty low court fees. In the context of the increasingly urgent problem of court congestion, initiatives in the field of popularization of alternative dispute resolution methods seem quite fair, but how will it be possible to achieve their effective development in conditions of cheap justice? This item should be discussed carefuly, considering the possibility of subtle use of court fee mechanisms in order to optimize legal proceedings, aimed at increasing the attraction of using out-of-court ways of settlement legal contest resolution by participants. However, it is important to maintain a balance of interests, preventing the right of access to justice from becoming a privilege.

Effective or symbolic? A retrospective look at the performance of the China International Commercial Court

ABSTRACT In recent years, numerous international commercial courts have been established to align dispute resolution mechanisms with the needs of international commerce. In June 2018, China entered this arena with the creation of the China International Commercial Court (CICC), a court specifically designed to facilitate international commercial dispute resolution and, in particular, solve disputes emerging from the One Belt One Road Initiative (BRI). However, the CICC has been less innovative than other international commercial courts. It has limited jurisdiction and relatively few international and arbitration-like features. Against this background, at the time of its creation, significant questions arose regarding the role the CICC would play within the dispute resolution market. This article considers the performance of the CICC over its first five years and empirically evaluates its performance compared to other commercial courts. An examination of the number of cases and their characteristics reveals that the international appeal of the CICC as a dispute resolution venue has been limited. Nevertheless, this article argues that the CICC can play a role in bolstering the ability of the Chinese legal system to address foreign-related disputes – namely, by producing guiding case law for situations that may come before the lower courts and by providing an institutional model that can be replicated at lower levels of the Chinese court structure.

An Improved 21st Century Judicial System with Environmental Science Expertise is Needed for Resolving Interstate Water Conflicts.

As stresses on groundwater resources increase due to growing population and climate change, water litigation, such as the recently decided Mississippi (MS) vs Tennessee (TN) lawsuit, will become more common. In the United States, lawsuits between states can be heard only by the Supreme Court of the United States (SCOTUS). These lawsuits are expensive and lengthy, often requiring highly specialized technical expertise. In the MS vs TN case, the Court unanimously held that an interstate aquifer is subject to equitable apportionment. Although this appears to be a sound resolution, a careful examination of the SCOTUS hearing transcript revealed that the Justices had several egregious misconceptions about the groundwater system. These misconceptions arose in part due to the failure of technical experts to communicate groundwater concepts in understandable terms and in part due to the Justices' lack of expertise in groundwater science. To address these issues, we first explore methods for improving scientific communication in courtrooms. Second, we propose ideas for reforming the legal system and provide compelling arguments for using the lower courts to hear such cases. We also explore the possibility of creating specialized federal water courts to resolve water disputes.

The Obscure Appellate: The Egyptian Islamic Supreme Court, 1898–1955

Abstract This article examines the Egyptian Islamic Supreme Court (al-Maḥkama al-ʿUlyā l-Sharʿiyya), thereafter the isc, and its role in overseeing Islamic judicial practice in the late nineteenth and early twentieth centuries. The isc introduced new procedural requirements for dispensation of justice and assumed the responsibility to defend the jurisdiction of Islamic courts against persistent attempts by British colonial administrators and reform-minded political and bureaucratic elite to limit, if not undermine, their authority. The isc marked the recalibration of the legal and judicial authority of the Chief Judge of Egypt (qāḍī Miṣr, an Ottoman administrative judicial position) along with Shaykh al-Azhar and the Muftī of Egypt (who used to exercise oversight of Islamic courts’ decisions and procedures), in favor of this institutional apparatus. The creation of the isc demonstrates the centrality of the regulatory authority of the Ministry of Justice in fostering any potentiality for Islamic law as a system of governance. The continuous attempts to regulate Islamic courts since the 1880s cannot be examined in isolation from the procedural developments pursued in the secular National and Mixed Courts. The role of the isc was determinative of Islamic judicial practice in lower Islamic courts across Egypt. As a result, operations of Islamic courts were readjusted to a set of evolving norms concerning internal coherence, judicial reasoning, adoption of procedural rules to reflect directives from the Ministry of Justice, and attention to the updated rules of evidence and appeal. This process underscores how Islamic judicial practice was both transformed and made possible through an interwoven set of institutions, actors, and traditions. I argue that this institution, the isc, provides an ideal site for critical and interdisciplinary reflection aimed at exploring both the structural and the contextual history of law in colonial Egypt.

Briefly Noted

This is the latest judgment in a case filed in 2020 by the state of Missouri against several named defendants and the Chinese Communist Party (CCP) for allegedly allowing COVID-19 to spread, engaging in a coverup of the virus, and hoarding PPE, such as high-quality masks, which caused the virus to spread further. In July 2022, the Eastern District of Missouri dismissed the complaint, finding that the Foreign Sovereign Immunities Act (FSIA) applied to all the defendants in the case, including the CCP and that neither the commercial activity exception or the noncommercial torts exception applied. The Court of Appeals affirmed, barring one difference. The Court of Appeals agreed with the lower court that the FSIA applied to all the defendants and that neither exception raised applied. However, it reversed the lower court's dismissal of the PPE hoarding claim, finding that that the taking over of “mask-producing factories and buying up a substantial portion of the world's supply of personal-protective equipment” was commercial in nature.

장기요양등급판정 신청 후 그 판정 전 피보험자 사망 시 요양진단비 보험금 지급 여부 - 대법원 2023. 10. 12. 선고 2020다232709, 232716 판결

The first trial ruling said, “in this case, the meaning of the occurrence of an insured event(rating determination) that occurred during the insurance period specified in the insurance contract is sufficient if it is confirmed that the fact that causes the rating determination, that is, the health condition is sufficient to require long-term care, and the rating “just because the date of judgment is after death cannot be viewed differently.” The lower court ruling cited the first trial ruling. However, the supreme court ruling is, as a reason for payment of insured amount stipulated in the insurance contract in this case, unless there are special circumstances such as if the insured is recognized as eligible for long-term care insurance for the elderly during the insurance period, the insured is subject to a rating by the assessment committee during the insurance period. This refers to cases where a long-term care grade has been determined by the committee. As seen above, i agree with the supreme court ruling. However, since there are contents that were not covered in the supreme court ruling, the lower court ruling, or first trial ruling, this article additionally reviewed the above contents. Through this article, i hope to resolve questions regarding issues related to ‘whether or not application for assessment for long-term care fee will be paid when the insured dies after applying for assessment for long-term care but before the assessment is made.’