Court Majority Research Articles

How wet must a wetland be to have federal protections in post-Sackett US?

In 2023, the US Supreme Court's majority ruled in Sackett v. Environmental Protection Agency that only wetlands that are "indistinguishable" from federally protected waters "due to a continuous surface connection" are federally protected. This study estimates the potential impact of interpretations of the ruling on federal wetlands protections, using a qualitative measure of wetland "wetness" as a proxy for the new requirement. An estimated area ranging from ~17 million acres (19%) to nearly all 90 million acres of nontidal wetlands in the conterminous United States could be without federal protections, and variability in state protections creates hotspots of risk. The high-level estimates provided here represent a first step toward understanding the long-term impacts of Sackett v. Environmental Protection Agency on federal wetlands protections and highlight the uncertainty introduced by the ruling.

THE USE OF SCHOLARSHIP BY THE EUROPEAN COURT OF HUMAN RIGHTS

AbstractThe relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.

미국 연방대법원 Dobbs 판결과 그 함의에 대한 소고

The U.S. Supreme Court's Dobbs ruling is a realization of concerns that had already been detailed in Justice Ginsberg's objection to the Gonzales v. Carhart ruling in 2007. Justice Ginsberg criticized the Supreme Court's majority opinion in Gonzales' ruling as eating away the great spirit of the U.S. Supreme Court, which approved the abortion ban, and pointed out the risk of returning to the result of denying the spirit of abortion freedom in the future, 15 years later, this concern became a reality. I would like to ask whether the argument of Roe's ruling, which gave women who had been in the role of sublime pregnancy and childbirth the basic value of freedom of choice or self-determination to resolve discrimination and oppression against women and break away from the framework of unjust control that had to force unwanted situations, was entirely denied. Not only in the United States, but also in Korea, efforts have been made to guarantee women's discrimination and rights for a long time, and those efforts have barely been paying off, and the Supreme Court has changed the precedent unfavorably by breaking the public's expectations, faith, and faith in women's right to choose, which have been maintained for nearly half a century. Nevertheless, we will have to firmly follow the flow of history, but it may be affected to some extent by the Dobbs ruling above. In this regard, this article emphasizes the injustice by critically analyzing the Dobbs ruling and highlighting the problems, and aims to lay the groundwork for the improvement legislation as a follow-up to the constitutional inconsistency decision made by the Constitutional Court of Korea.

Constitutional Courts Asking Questions: A Deliberative Potential of Preliminary Reference Mechanism

AbstractThis Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.

Trans-Tasman Challenge

The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.

The Talented Tenth Meets the Twenty-First Century: Young, Gifted and Diverse in the Post-Affirmative Action Era

Abstract In the wake of the Supreme Court's dismantling of affirmative action policies in higher education in its SFFA v. Harvard ruling, this review essay offers a detailed explication of the relevant themes Camille Z. Charles, Rory Kramer, Douglas Massey, and Kimberly C. Torres analyze in “Young, Gifted, and Diverse: Origins of the New Black Elite.” Taking DuBois's conceptualization of the “Talented Tenth” as their starting point, the authors present a combination of quantitative and qualitative research to examine the experiences and aspirations of Black students who matriculated to elite colleges over a decades-long period. This analysis expands Charles et al.'s intersecting themes of social mobility, colorism, and model minority discourses, situating them within a broader discursive field that includes the relevant historical and contemporary sociopolitical contexts as reflected in the Court's majority and dissenting opinions.

Potential Effects of Dobbs v. Jackson Women's Health on Civil Commitment Law.

Since the publication of the U.S. Supreme Court's decision in Dobbs v Jackson Women's Health in June of 2022, much attention has been paid to the direct effects of that decision on reproductive health care for pregnant or potentially pregnant individuals; and to the potential effects of the Court's approach in Dobbs to other established precedent related to privacy and autonomy, such as rights to contraception and marriage equality.This Article will explore another potential negative consequence of Dobbs; its potential effect on the constitutional parameters of the law of civil commitment and involuntary medication of the mentally ill.The foundational Supreme Court case establishing the parameters of the State's right to involuntarily commit an individual to a mental institution was decided only two years after Roe v. Wade.In 1975, the Supreme Court in O'Connor v Donaldson held that an individual has a liberty interest in "prefer[ring] one's home to the comforts of an institution," and that a State could not, "without more," confine a non-dangerous individual.The two-prong test of requiring a showing of both mental illness and dangerousness to one's self or to others has remained the cornerstone of civil commitment law ever since.The language and analysis of O'Connor is similar to that of Roe, the abortion rights case overturned by Dobbs.In particular, the grounding of the right to avoid civil commitment in the individual liberty and privacy interests are common themes in the two cases.The current Court, in its decision in Dobbs, has cast substantial doubt on the continued vitality of that analysis; and one can easily imagine a reconceptualization of O'Connor along the lines of Dobbs that substantially alters the requirements for civil commitment. In particular, the reliance in Dobbs and other recent Supreme Court opinions on historical precedent as a linchpin of originalist analysis could lead the Court to search for justifications in colonial or 19th-century mental health practices, time periods which predate modern psychiatric science.This Article will explore the parallels in approach between Roe and O'Connor, and will suggest ways in which the post-Dobbs Supreme Court majority might disrupt the civil commitment status quo, including potential expansion of civil commitment or other detention of pregnant individuals for the protection of the fetus; and possible relaxation of the dangerousness requirement for civil commitment articulated in O'Connor.

The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion

(JAMA. 2022;328:325–326) In the case Dobbs v Jackson Women’s Health Organization in 2022, the US Supreme Court ended the right to abortion established in 1973 with Roe v Wade. The court majority argued that abortion is not referenced in the constitution, is not “implicit in the concept of ordered liberty,” and that the issue should be resolved in each state by voters.

The Dobbs Decision, Forced Birth, and the Fantasy of the Selfless Mother

The Dobbs decision and the U.S. abortion ban, or forced birth, is a clear human rights violation. With zero access to safe abortion, a pregnant person must either stay pregnant and give birth to a child they may not want, or put the child up for adoption. This will disproportionately affect already marginalized people and communities managing systemic racism. And it is forcing pregnant people with the life-changing responsibility of caring for all unwanted, unplanned children—whether they want to or not. How will this affect the life and trajectory of the person giving birth? How will the unaborted infant receive the necessary love and attention to grow and thrive? While legislation can impose forced birth, it cannot enforce the conditions of love and care. The Supreme Court majority’s ideal or fantasy of the selfless mother is a disembodied dissociated version of motherhood– an image of a mother–living unwittingly in the shadows of cultural expectation and intergenerational patterns of maternal silence. With the Dobbs decision, the Supreme Court has enshrined the idealized fantasy of the selfless mother into law.

Marijuana Policies in Drug Treatment Courts

Drug treatment courts are challenged by the ongoing trend of marijuana legalization. In states where it is legal for adult citizens to consume marijuana for medical and recreational purposes, treatment courts need to determine whether participants should be allowed to consume or possess marijuana. By analyzing the written policies of treatment courts in states that have legalized recreational and medical marijuana, this study explores how treatment courts address such challenges. The review shows a large percentage of drug treatment courts have yet to clearly communicate their marijuana policies with the participants in writing. However, among the drug treatment courts that have established marijuana-specific policies, the vast majority of courts continue to ban the use of marijuana while a few courts allow medical marijuana use on an individual basis.

The Interest in Permanent Contraception Peaked Following the Leaked Supreme Court Majority Opinion of Roe vs. Wade: A Cross-Sectional Google Trends Analysis

Introduction With the leaked Supreme Court draft regarding Roe vs. Wade, substantial public reactions followed as the horizon of abortion laws within the United States of America have been changing. We sought to compare internet searches for vasectomy and tubal ligation seven days following the leaked draft on May 2, 2022. Methods We used public data provided by Google Trends to investigate the interest and geographic distribution of searches for the two forms of permanent contraception: Vasectomyand tubal ligation. We calculated the mean Search Volume Index (SVI) of these terms. Data analysis was performed with Microsoft Excel Version 16.60 (Redmond, USA), and comparisons between groups were performed using paired t-tests. Results The term 'vasectomy' saw a 121% increase (p=0.0063), and 'tubal ligation' had a 70% (p=0.029) increase compared to the week prior. 49/50states had increased search inquiries for each term. However, the North and Southwestern regions of the U.S. had increased relative surge for vasectomyand the Midwest region for tubal ligationprocedures, respectively.South Dakota and Idaho, with trigger laws that banned abortion immediately following the overturn of Roe vs. Wade, had the greatest surge in SVI for tubal ligation and vasectomy, respectively. Conclusion Our study indicates that with the potential overturn of Roe vs. Wade, there was a significantly increased interest in these two forms of permanent contraception. Future studies should investigate specific concerns and questions patients may have when it comes to the different options of contraception.

THE WEARING OF THE HEADSCARF – THE PLIGHT OF MUSLIM WOMEN: A BRIEF COMPARATIVE SYNOPSIS

In 2002 Prof JMT Labuschagne published a South African legal perspective on the Muslim headscarf entitled “Die Regsstatus van die Islamkopdoek: Opmerkinge Oor die Begrensing van Religieuse Simbole en Gebruike in die Regstaat” (2002 17 SA Public Law 382). In this note he referred to the legal solutions regarding the wearing of a headscarf and other religious symbols in two European countries, Germany and Switzerland, and noted that a distinction is generally made between the wearing of religious symbols in the private and public spheres with specific reference to educational institutions. He concluded that in these countries the freedom of religion, belief and opinion is one of the cornerstones of a democratic society and that there is a duty on society to be tolerant towards divergent views to ensure social peace; and that this also applies in an educational environment. However, the majority of courts, with regard to the headscarf in the public domain, require that teachers especially must be seen to be strictly neutral, making the wearing of the headscarf in a public school unacceptable.The aim of this note is to provide an update on Germany, one of the jurisdictions discussed by Labuschagne; to expand the comparative view to other jurisdictions that have also grappled with the issue; and to set out the South African legal position.Before the South African legal situation is discussed, the position in other jurisdictions is described. With regard to the wearing of the headscarf at educational institutions, be it schools or universities, the situation in Singapore, Turkey, France, Germany and England is of comparative interest, whilst regarding the wearing thereof at work, the French and German solutions are considered. For reasons to become clear subsequently, this distinction in South Africa is not of particular importance as the same legal principles are applicable to both scenarios.

형법상 전자기록 위작의 해석에 관하여

In recent years, there have been a number of crimes that attract investors by creating false cryptocurrency exchanges or by falsely manipulating transaction records on cryptocurrency trading sites in a situation where investment in cryptocurrency is hot. In relation to this record manipulation, the Supreme Court recently issued a decision on the concept of 'falsification' of electronic records, and here again, the opinions of judges were divided. In this study, first of all, the purpose and logic of the majority opinion and the opposition opinion of the Supreme Court's sentence of 2019Do11294 are analyzed and reviewed. The main issue of the case is whether the act of generating electronic records contrary to the will of the system installer or operator by abusing its authority constitutes a "falsification" of private electromagnetic records prescribed in Article 232-2 of the Criminal Act. In response, the majority opinion said, "In relation to the subject who installs and operates the system, a person who is not authorized to generate electronic records or inputs unit information necessary for the generation of electronic records, and a person who is authorized to enter false information in the scope of their duties is included in Article 227-2 of the Criminal Act. The above legal principles also apply to "falsification" defined as the aspect of the act in the crime of “falsification or alteration of private electromagnetic records” under Article 232-2 of the Criminal Act. The Supreme Court's legal principles on such forgery are valid and can be applied in this case." In response, the dissenting opinion is that "the Defendants' actions do not constitute a 'falsification' prescribed in Article 232-2 of the Criminal Act." Nevertheless, the lower court's judgment that the Defendants' actions constituted a "falsification" erred by misunderstanding the legal principles on the meaning of "falsification" as prescribed in Article 232-2 of the Criminal Act. Therefore, the judgment of the lower court regarding this part should be reversed and the case should be remanded to the lower court to hear and judge again." It has the opposite view of judging the Defendant's act as innocent by the majority opinion. The crime of falsification of electronic records is an area that requires an independent interpretation different from the crime of documents regarding the requirements for establishment of electronic records, falsification, and other personality of electronic records. In this regard, the interpretation of previous studies on the crime of falsification of electronic records is reviewed and analyzed. In addition, the concept of reasonable 'falsification' is derived by reflecting the legislator's purpose of the concept of 'falsification' through the 1995 criminal law revision data. Based on this, the logical basis of each of the Supreme Court's majority and dissenting opinions is analyzed and critically reviewed to establish a valid concept of 'fake', and the correct interpretation of the case and the direction of application to similar cases in the future is presented.

Divided Unions: The Wagner Act, Federalism, and Organized Labor

Divided Unions: The Wagner Act, Federalism, and Organized Labor

Latin American Feminists, Gender, and the Binary System of Human Rights Protection

On March 26, 2021, the Inter-American Court of Human Rights found Honduras responsible for the killing of Vicky Hernández, a trans woman and human rights defender.1 The Vicky Hernández et al. v. Honduras judgment is the first in which an international court has protected a trans woman by applying a human rights treaty that protects women. It thus provides an opportunity to analyze the impact of feminist ideas on the system of human rights protection at the regional level, with implications for international law more generally. In this essay, I defend the Inter-American Court's majority decision against the dissenting opinions, by arguing that the political subject of human rights is dynamic and emergent and, therefore, positive law is often one step behind in the struggles for recognition. For this reason, we need interpretations of rights that are inclusive, that evolve, and that push for the destabilization of law as binary, allowing the emergence of a more egalitarian legal system that recognizes intersectionality.

Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory

Abstract Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.

JUDICIAL DISCRETION IN THE DETERMINATION OF POST-DIVORCE CHILD SUPPORT: A BRIEF OVERVIEW OF THE APPLICATION OF THE SOUTH AFRICAN MAINTENANCE ACT 99 OF 1998 AS COMPARED TO THE CANADIAN FEDERAL CHILD SUPPORT GUIDELINES OF 1997

There are various models for determining and allocating child support obligations post-divorce and many different principles upon which such a policy can be based. In most legal systems the parents retain the duty to support their needy children after divorce as it is primarily their obligation to ensure the adequate financial welfare of their children. This principle is applicable in both the South African and Canadian legal systems. In South Africa, in terms of both the common law and legislation, both parents must maintain their children “according to their respective means”. The awarding of a specific amount of maintenance is, however, a complex process calculated by the courts on a case-by-case basis mainly by considering two issues: the needs of the children and the parents’ ability to maintain their children within the circumstances and means of each of the parents. Although both aspects are important in a maintenance enquiry, the focus of this note is on the interpretation of the calculation of the contribution of each of the parents, especially the non-custodial parent. The interpretation of the concept “means” obviously has important consequences for the parties: the broader the interpretation of the “means” of a parent, the higher the proportion of the contribution of that parent would be towards the support of the children. This is especially important in South Africa where a substantial proportion of those who are obligated to pay maintenance is impecunious. The Canadian law rested on similar principles until 1997 when the federal government promulgated the Federal Child Support Guidelines as an amendment to the Divorce Act. The impact of these Guidelines on the calculation of the parental share of post-divorce child support has been far-reaching. The aim of this note is firstly to examine the meaning of the term “means” within the South African legal system as set out in the common law, the various statutes and as these have been interpreted by the majority of courts over the past century. The second aim is to give a brief overview of the Canadian Guidelines and to compare their current system with the South African scenario. The rationale for choosing this jurisdiction is (i) the fact that in both jurisdictions the courts have the ultimate say over the amount of support paid; and (ii) as the Canadian position before their 1997 amendments was similar to the current South Africa system, it was envisaged that by exploring their reasons for change and evaluating their current system, some useful insights might be gained in solving some problems experienced in the South African maintenance system. The note will conclude with some suggestions for reform in South Africa in light of the Canadian experience.

Generative Dynamics of Supreme Court Citations: Analysis with a New Statistical Network Model

AbstractThe significance and influence of U.S. Supreme Court majority opinions derive in large part from opinions’ roles as precedents for future opinions. A growing body of literature seeks to understand what drives the use of opinions as precedents through the study of Supreme Court case citation patterns. We raise two limitations of existing work on Supreme Court citations. First, dyadic citations are typically aggregated to the case level before they are analyzed. Second, citations are treated as if they arise independently. We present a methodology for studying citations between Supreme Court opinions at the dyadic level, as a network, that overcomes these limitations. This methodology—the citation exponential random graph model, for which we provide user-friendly software—enables researchers to account for the effects of case characteristics and complex forms of network dependence in citation formation. We then analyze a network that includes all Supreme Court cases decided between 1950 and 2015. We find evidence for dependence processes, including reciprocity, transitivity, and popularity. The dependence effects are as substantively and statistically significant as the effects of exogenous covariates, indicating that models of Supreme Court citations should incorporate both the effects of case characteristics and the structure of past citations.

Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67

The Irish Supreme Court in DPP v Brown (Brown) recognised the absence of consent as part of the ‘assault causing harm’ offence in section 3 of the Non-Fatal Offences Against the Person Act 1997 (the 1997 Act). This corrected a decade-old mistaken view of ‘assault’ in section 3 meaning something different from ‘assault’ in section 2 of the 1997 Act. The Supreme Court in Brown split three-two, however, on whether an unlawful purpose or motivation for the activity in question invalidates consent in respect of the section 3 offence. This article will show the minority’s analysis to be more robust than the majority’s. In particular, the article highlights a remarkable feature of the Brown majority holding – that it effectively jettisons what it recognises as an element of an offence (that is, the absence of consent) by upholding a conviction where that element was not proven at trial. The article considers Brown’s implications, and observes the substantial challenge the case demonstrates for criminal law to reflect and limit the power of consent. Noting the complex role of consent in criminal law serves to qualify the available liberal and legality-based critiques of the Supreme Court majority approach in Brown.

Right-Sizing the Supreme Court: A History of Congressional Changes

Since the Republican Senate refused to consider President Obama’s nomination of Merrick Garland to the Supreme Court in 2016--coupled with the Trump Administration’s success in filling that seat with Neil Gorsuch, followed by the appointments of Brett Kavanaugh and Amy Coney Barrett--there has been widespread interest in how to balance a suddenly solidly conservative Court majority, one likely to remain so for decades. One way to do so is to expand the size of the Court, an issue the Constitution left to Congress, which exercised that authority repeatedly during the Constitution’s first 80 years. This article examines those mostly forgotten congressional changes to the Court’s size as well as Congress’ more notorious failure during the New Deal. The article reveals that the successful expansions were often due to population growth but always the product of political calculations. Since the U.S. population is now nearly ten times larger than it was when Congress last changed the Court’s size, reconsidering the Court’s size may be an issue ripe for congressional consideration, should the political winds suggest that is possible.