Recent United States Supreme Court Research Articles

Online Platforms and Legal Responsibility: A Contemporary Perspective in View of the Recent U.S. Developments

This paper critically examines the relevance of Section 230 of the Communications Decency Act in the context of recent United States Supreme Court rulings, specifically Twitter v. Taamneh and Gonzalez v. Google. The Supreme Court ruled in 2023 that determining the extent of CDA230’s immunity lies with legislators, not the judiciary. This study explores the potential liability of algorithms in supporting terrorism and the implications for European regulations under the Digital Services Act. Findings indicate that while CDA230 has fostered internet growth, it also challenges content regulation. The United States approach contrasts with the European Union’s more explicit service provider responsibilities, suggesting a need for legislative updates to balance free expression with the control of harmful content.

End of Affirmative Action-Who Is Impacted Most? Analysis of Race and Sex Among US Internal Medicine Faculty.

For over 50 years, the United States (US) used affirmative action as one strategy to increase diversity in higher education including medical programs, citing benefits including training future public and private sector leaders. However, the recent US Supreme Court ending affirmative action in college admissions threatens advancements in the diversity of medical college faculty. Our study evaluated the demographic trends in Internal Medicine (IM) faculty in the US by assessing sex and race/ethnicity diversity to investigate who is likely to be impacted most with the end of affirmative action. Longitudinal retrospective analysis SUBJECTS: IM faculty from the Association of American Medical Colleges faculty roster from 1966 to 2021 who self-reported sex and ethnicity MAIN OUTCOMES: The primary study measurement was the annual proportion of women and racial/ethnic groups among IM faculty based on academic rank and department chairs. Although racial/ethnic diversity increased throughout the era of affirmative action, African American, Hispanic, and American Indian populations remain underrepresented. White physicians occupied > 50% of faculty positions across academic ranks and department chairs. Among the non-White professors, Asian faculty had the most significant increase in proportion from 1966 to 2021 (0.6 to 16.6%). The percentage of women increased in the ranks of professor, associate professor, assistant professor, and instructor by 19.5%, 27.8%, 25.6%, and 26.9%, respectively. However, the proportion of women and racial/ethnic minority faculty decreased as academic rank increased. Despite an increase in the representation of women and racial/ethnic minority IM faculty, there continues to be a predominance of White and men physicians in higher academic ranks. With the end of affirmative action, this trend has the danger of being perpetuated, resulting in decreasing diversity among IM faculty, potentially impacting patient access and health outcomes.

Organizational abortion support benefits in the post-Roe world: employee and employer perspectives

PurposeThe authors discuss the implications of the recent United States Supreme Court decision in Dobbs v. Jackson and its impact on employees and employers. Although several employers issued public statements regarding the provision of abortion-related benefits, the authors highlight some of the obstacles to their implementation.Design/methodology/approachWith a focus on employee wellbeing, the authors discuss the obstacles in implementing abortion care benefits.FindingsWhile it is encouraging to see many organizations make public statements in support of abortion rights, the authors temper their enthusiam with questions about practicality.Research limitations/implicationsBased on the research on hidden stigmas and the job demands-resources model, the authors argue that employees who need to use abortion-related benefits may be unlikely to seek them.Practical implicationsThe authors highlight some unanswered questions relating to the requesting and granting of abortion healthcare benefits.Social implicationsThe Dobbs decision takes away rights. While the authors applaud organizations’ efforts to restore them, facilitating access to an abortion in other states is quite complicated.Originality/valueAlthough abortions are very common, very little organizational research has addressed the topic. In light of the Dobbs v. Jackson decision, the paper raises some timely questions about employer-sponsored abortion healthcare.

Unilateral Acquisition and the Requirements of Freedom: A Kantian Account of the Judicial Exceptions to Patent Protection

AbstractFor obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects.

Public Support of Sectarian Education

Although separated by almost a decade, there are two relatively recent United States Supreme Court cases involving the first Amendment religion clauses and educational funding. Both cases involved public monies diverted for sectarian educational purposes. One case brought by a plaintiff challenging the diversion; the other by a plaintiff challenging the cession of the diversion. The comparison, contrast and evaluation of the two cases is the intended goal of this essay and is predicated upon the fact that while both cases essentially yield the same result, neither employs the same justifying foundational argument employed by the other. Finally, understanding these two cases may serve as a predicate to a third educational case now before the United States Supreme Court during the 2021 term.

Trump, Recent Court Cases and the 2020 Presidential Election

In this essay, the author will discuss recent United States Supreme Court cases as well as international trade cases decided this year by the specialized international trade courts in the United States. Let me then discuss recent U.S. trade action concerning China and put this in the context of President Trump’s generalized approach to China and international trade. This article will conclude with a few observations pertaining to the upcoming presidential election in the United States. The. Supreme Court recently ruled on two highly politicized and historic cases on executive power. What has been almost totally overlooked is an international trade decision by a three-judge panel of the United States Court of International Trade. That case and earlier trade cases indicate the start of a multifaceted attempt to restrict the president’s trade policies. Either the 2020 presidential election will put a stop to President Trump’s reliance on national security to establish disastrous trade policies, or the country will be in this mess for years to come.

Life-sentenced juveniles: Public perceptions of risk and need for incarceration.

Pursuant to recent United States Supreme Court decisions in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016), individuals convicted of crimes committed when they were younger than 18 and for which they received mandatory life sentences are entitled to new sentencing hearings. This study examined public perceptions of such individuals (life-sentenced juveniles, or LSJs). Study participants were 663 adults (52.3% male) ages 22-71years (M=36.00, SD=11.46) recruited using Amazon Mechanical Turk (MTurk). Each participant received one of a possible four vignettes about a man who was incarcerated for a crime that occurred when he was 17years old and subsequently sentenced to mandatory life in prison following conviction. Two variables (risk of harming others if released to the community, and circumstances of the crime) were manipulated in a 2×2 between-subjects design. Each participant read one vignette and then answered questions relating to appropriateness for release from prison. Results indicate that risk, but not circumstances of the crime, strongly influenced participants' views regarding resentencing. When the individual in the vignette was labeled as high risk, participants described him as less appropriate for release, more deserving of punishment, needing more rehabilitation, and more appropriate for specific and general deterrence. The circumstances of the crime had no effect on participants' responses. This may be important for various reasons, as applicable law does not explicitly identify risk as a consideration in juvenile resentencing. The nonetheless noteworthy empirical influence of risk on perceptions regarding LSJs is discussed in their implications for research, policy, and practice.

Risk assessment and juvenile resentencing: A critical analysis.

Recent United States Supreme Court decisions in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016) have created the need to resentence individuals who received a sentence of mandatory life without parole (LWOP) for offenses committed when they were younger than 18years old. Neither of these decisions explicitly cite reoffense risk as a sentencing criterion, but a careful reading of the reasoning in these cases suggests that such a risk should be among the considerations addressed by resentencing courts. If so, important theoretical and scientific questions are raised about the nature of risk assessment tools, in particular the distinction between static and dynamic risk factors. Additionally, the novelty of LWOP resentencing raises further questions about the applicability of these tools to individuals who have been incarcerated for long periods of time. We address these questions, call for additional research on dynamic risk factors, and offer recommendations for professionals involved in these types of assessments.

The Federal Criminal Forfeiture Statute: Reining in The Government’s Previously Unbridled Ability to Seize Pretrial Assets

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that a recent United States Supreme Court decision has scaled back the Government’s power over its ability to seize. This Note will provide an overview of the Federal Criminal Forfeiture Statute, as well as RICO and CCE in order to provide context, will detail the case law history of the statute in application, will examine the ethical and constitutional considerations, and will question the future of the controversially applied law.

Sticks & Stones May Break My Bones...But Symbols Hurt, Too: Government Speech & the First Amendment

This Article highlights a novel Mississippi case, Moore v. Bryant, where a Mississippi citizen filed suit against Mississippi’s Governor, Phil Bryant, alleging that the state’s flag that preserves the Confederate emblem caused him hypertension, irregular EKG reports, and insomnia. Moreover, this Article explores the Government Speech Doctrine and emphasizes the tension between rights of speech accorded to citizens and those delineated to the government. My argument expands upon Justice Stevens’ concurrence in Pleasant Grove City, Utah v. Summum, where he explained that the government did not have free license to communicate offensive or partisan messages. Moreover, the Court’s majority opinion emphasized that states must be cautious in selecting its symbols because state symbols are readily associated with its citizens, and states must be careful not to compel citizens to express views with which the citizens disagree. Currently, Mississippi is the only state in the country that preserves the Confederate emblem in its state flag. However, recent events have caused every public institution of higher learning in Mississippi to remove the state’s flag from its campuses. Because the legislature has refused to discontinue flying or remove the Confederate emblem from Mississippi’s state flag, this Article utilizes recent United States Supreme Court precedent to argue that the Confederate emblem is offensive and oppressive, and this Article presents a viable, first amendment argument government promotion of offensive symbols is a first amendment violation. Although Moore v. Bryant, was dismissed for lack of standing for failing to demonstrate a cognizable legal right to be free from government imposed stress that manifested hypertension, irregular EKG reports and insomnia, it inspired me to develop a novel first amendment argument that is legally cognizable because states cannot compel citizens to adopt offensive speech or any speech for that matter. This Article has the potential to permanently retire the Confederate emblem from government property and placed into a museum where it belongs.

A Brief Overview of Recent Supreme Court Precedent – Keeping Foreign Litigation at Bay

GLOBALIZATION marches on. Consistent with this, connections between the United States and the outside world (both perceived and actual) have become commonplace. (1) Of particular relevance to products liability practitioners, from the 1990s through present day, exports of goods and services as a percentage of United States gross domestic product have continued to increase, as has international trade in general. (2) For the United States judiciary, this likely means more litigation that is international in nature. Along with that international flavor comes more claims between persons and entities of different national origins, as well as more choice-of-law, venue, and jurisdictional issues. Due to the civil jury system that it provides, its more generous damages laws, and the different compensation structures available to its legal counsel, the United States (and its constituent states and territories) will likely continue to be an attractive litigation situs for claims with greater connections to foreign countries. (3) In light of this, for products practitioners, as well as defense counsel in other contexts, it is important to understand some of the more recent United States Supreme Court precedent addressing tools to keep foreign litigation at bay. Considered together, these decisions demonstrate the High Court's tendency to err on the side of keeping foreign-centered litigation outside of the United States court system. Examples of such decisions include those addressing where the principal conduct at issue is centered for purposes of the Foreign Sovereign Immunities Act (FSLA); the presumption against extraterritorial application of United States statutory law; personal jurisdiction over foreign defendants; and the doctrine of forum non conveniens. I. Recent Precedent Demonstrating The High Court's Tendency To Keep Foreign Litigation At Bay A. OBB Personenverkehr AG v. Sachs and FSIA's Commercial-Activity Exception In OBB Personenverkehr AG v. Sachs, a California resident sued the Austrian state-owned railway for injuries that she sustained while attempting to board a train in Innsbruck, Austria. (4) She predicated her suit on a United States-based travel agent's Internet sale of a Eurail pass to her before she left for her trip to Europe. (5) Such passes are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. (6) The Austrian governmental defendant raised FSIA, 28 U.S.C. [section][section] 1330, 1332, 1391(0- 1441(d), and 1602-11, as a defensive bar. (7) In response, the plaintiff argued (successfully in Ninth Circuit Court of Appeals) that her case satisfied FSIA's commercial-activity exception. (8) The commercial-activity exception abrogates sovereign immunity for suits based a commercial activity carried on in the United States by [a] foreign state. (9) The Sachs plaintiff contended that this exception allowed her suit to proceed in United States federal district court because her suit was based upon her Massachusetts travel agent's Internet-based sale of a Eurail pass in the United States, and the travel agent's sale was attributable to the Austrian state-owned railway through common-law principles of agency. (10) Under the plaintiffs and the Ninth Circuit's analysis, so long as at least of her claim was tied to the United States-based ticket sale, the commercial-activity exception applied and allowed her action to proceed here. Without reaching the agency question, the United States Supreme Court unanimously rejected the plaintiff's position and reversed the Ninth Circuit. (12) Chief Justice Roberts' opinion for the Court reasoned that conduct comprising only one element of a plaintiffs cause of action is insufficient to satisfy the based upon requirement of the first clause of FSIA's commercial-activity exception. …

You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions

This article focuses on the brilliance -- or lack thereof -- of how each side framed the issues in certain hotly contested recent United States Supreme Court decisions. In other words, the article does not challenge the correctness of the Supreme Court decisions. Rather, the article focuses on the techniques used to control the lens by which an issue is analyzed, in particular, use of emotive appeal. As a practical matter, there often are two ways to legitimately frame an issue. In this circumstance -- when both sides could be correct -- why is it surprising that pathos might tip the scales? Cognitive science suggests that powerful emotional appeals certainly may play a role in judicial decision making, perhaps even at a subconscious level. Aristotle realized this long ago and American legal realists have acknowledged this for at least a century. But even if it can be assumed that emotions never sway a judicial decision, there is a second very practical reason to include pathos in judicial filings. This article demonstrates that the “Hellos” -- the emotional hooks set forth in the introductory paragraphs of briefs -- often are showcased front-and-center in the resulting Supreme Court opinion. This is so even when these hooks have nothing at all to do with the merits of the case. To prove this point, this article examines the “Hellos” in five recent hotly contested five-to-four Supreme Court decisions: Obergefell v. Hodges (same-sex marriage); Adoptive Couple v. Baby Girl (parental rights under the Indian Child Welfare Act); ATT Burwell v. Hobby Lobby Stores, Inc. (religious freedom/abortion rights); and Glossip v. Gross (death penalty/drug protocol). The Obergefell discussion also includes analysis of the impacts of the “Hellos” in United States v. Windsor, 133 S.Ct. 2675 (2013) (DOMA) and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (Prop. 8). This article then compares the “Hellos” to the Supreme Court decisions. The parallels are stunning.This article ends with ten concrete tips for practitioners on how to craft powerful “Hellos.” The advice applies both at the trial court and appellate level. This part also explores the need to go beyond relying upon stock techniques and to instead dig deeper by taking the pulse of ever-changing social norms regarding what is fair and just. That is where the power of persuasion lies. Now, more than ever, practitioners must strive to win the reader over both in the heart and in the mind. It just might matter.

Different Mistakes in the Law and the Difference They Make

There are various sorts of mistakes one might make regarding the law. For instance, one might incorrectly believe that there is a law when there isn’t one or that there is no law when there is. One might also know the law but incorrectly appraise the facts covered by the law. The former mistake is traditionally classified as a legal mistake while the latter is generally referred to as a factual mistake. Both those under the law and those charged with enforcing the law are capable of making both sorts of mistakes. As might well be expected, however, the consequences of a citizen’s legal or factual mistake might be quite distinct from those of the executive officer. Perhaps contrary to common belief concerning the protections afforded the accused, it is more likely for the government to forgive empirical and legal mistakes made by governmental officers than it is for the government to forgive those same mistakes made by private parties in the role of the criminally accused. Mistakes made by the former group may have no effect upon their endeavors, if certain conditions obtain. Mistakes by the latter group, with two exceptions, will generally have significant legal effects. To investigate the varied ramifications in light of two recent United States Supreme Court cases shall be the goal of this paper.

In All Fairness: Using Political Broadcast Access Doctrine to Tailor Public Campaign Fund Matching

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, public financing must be tailored to reduce its monetary correlation with, and corresponding burden on, privately funded speech. This Article proposes matching broadcast advertising access costs as a measured solution. The proposed system does not burden privately funded speech, and it increases media availability: if a privately financed candidate or independent group purchases advertising time, the publicly financed candidate is provided funds to purchase equivalent time. Matching access costs reduces any burden on speakers while importing First Amendment jurisprudence and telecommunications law to support the constitutionality of this system. These laws recognize the First Amendment rights of the electorate, the problem of political advertising market saturation, and the values of an informed citizenry. Essential for democracy is an informed, engaged, and participating citizenry. Matching broadcast access costs increases available information, comports with the

Taking Salience Seriously: The Viability of Ronald Dworkin's Theory of Salience in the Context of Extra-Territorial Corporate Accountability

In his posthumously published article “A New Philosophy for International Law”, Ronald Dworkin argues for the adoption of “salience” as basis for establishing international legal standards. Writing in the context of international law, Dworkin describes salience as follows: “If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole.” Dworkin argues that the limitations of the accepted grounds for establishing international law often fall short especially when addressing problems that necessitate forced collective action such as climate change. Although he makes no reference to multi-national corporations, many of the challenges brought out by Dworkin apply to multi-national corporations. The challenges are particularly daunting in the context of multinationals operating in the developing world where corporate governance structures provide nations in the developing world with limited voice and power. Dworkin’s doctrine of salience is well-suited for application in the context of transnational corporations. Dworkin’s salience seems to reflect what can take place and what is taking place in the development of this area of the law. In addition, salience presents a means for enabling the mutual development of coherent and referential international standards concerning the judicial management of extra-territorial corporate accountability. The need that salience can address is well demonstrated in the recent United States Supreme Court case of Kiobel v. Royal Dutch Petroleum Co. This paper shows how Dworkin’s theory of salience offers a useful theoretical construct for developing a global approach to extra-territorial corporate jurisdiction and liability that can secure benefits and justice for nations in developing world.

The Implementation of Exhaustion Policies: Lessons from National Experiences

The exhaustion doctrine is a corner stone of intellectual property law, its importance demonstrated by several recent United States Supreme Court decisions on the topic over the past several years, including the controversial Kirtsaeng opinion from 2013. This research paper, commissioned by the International Center for Trade and Sustainable Development (ICTSD) in 2013, analyzes the major policy debates over the exhaustion doctrine and presents a comparison of the doctrine's implementation in the United States, European Union, Canada, India, China, and Brazil. The major conclusion is that the exhaustion doctrine can serve as a policy tool for development and the promotion of international trade and innovation. But the paper also warns of the limitations of the exhaustion doctrine as a means of promoting access to new technologies.

Patenting DNA Sequences After the Myriad Decision: New Frontiers or Just More of the Same?

The recent United States Supreme Court decision in Association for Molecular Pathology v Myriad Genetics Inc determined that a naturally occurring DNA sequence is not patentable. This is a significant finding by a superior United States court after more than 20 years of contentious debate about the merits of patenting DNA. This article reviews the decision and considers its likely effects on existing and future claims over DNA sequences. The article concludes that even though the decision might be heralded as a significant limitation on DNA patenting, in fact, probably very little has changed and DNA remains eminently patentable. The decision is really a triumph of form over substance. Introduction Ever since the United States Supreme Court decision in Diamond v Chakrabarty stating “anything under the sun that is made by man”, 1 and establishing that living human-made biological organisms were patentable subject matter under the United States Patent Act, the reach of patents over biological materials has been complicated and contested. 2 This is partly a consequence of the broad language of the patent * Associate Professor, Australian Centre for Intellectual Property in Agriculture, Griffith Law School, Griffith University, Queensland. This project has been generously supported by the Australian Research Council (DP120101434). 1 Noting, of course, that this is a misleading quotation from the legislative history of the Patent Act the full quote being: “A person may have ‘invented’ a machine or a manufacture, which may include anything under the sun made by man, but it is not necessarily patentable under § 101 unless the conditions of the title are fulfilled”: S Rep. No 1979, 82d Cong., 2d Sess., 5 (1952); H.R.Rep. No.1923, 82d Cong., 2d Sess. 6 (1952). 2 Diamond v Chakrabarty, 447 U.S. 303, 309 (1980); 35 U.S.C. §101. For an overview of the significance of this case see Douglas Robinson and Nina Medlock, “Diamond v Chakrabarty: A Retrospective on 25 Years of Biotech Patents” (2005) 17 Intellectual Property & Technology Law Journal 12.

Maryland v. King: the case for uniform, nationwide DNA collection and DNA database laws in the United States

The recent United States Supreme Court pronouncement in Maryland v. King that the police may readily take a DNA cheek swab of a suspect after an arrest for a serious offense poses challenging Fourth Amendment questions. Moreover, private DNA databases built by healthcare centers raise concerns such as the security of the data from government intrusions and whether information from a DNA database might be sold. In this article, I advocate for a uniform national infrastructure of DNA collection and retention laws, and legislative and judicial safeguards on third-party use and disclosure of citizens' DNA information.

The Mensing Conundrum: Litigating Generic Drug Injuries in California

As long as there have been prescription drugs, people have suffered injuries caused by those drugs. While a perfect level of safety is just not possible, state tort laws have long provided protection to injured drug consumers and incentive to drug manufacturers to improve and maintain the safety of their products. However, the United States Supreme Court has recently revealed an alarming gap in this supposed consumer protection and safety incentive scheme. A series of cases now reveals that some state claims of injury resulting from a prescription drug are not preempted by federal law if the drug is a brand name, but are preempted if the drug is a generic. This incongruity in federal law may leave a consumer injured by a generic drug without a viable civil remedy. Consumers are likely to be completely unaware of the protections they are giving up when they accept a cheaper, generic prescription, leaving them at a significant legal disadvantage. Generic drugs continue to capture an increased market share of prescriptions, so the number of consumers affected by federal preemption will grow. This article will provide a brief history of generic drugs, outline the recent United States Supreme Court cases that have revealed the consumer protection problem related to generics, and address potential solutions for litigating generic prescription drug injury claims in California.

The Study of Recent United States Supreme Court Decisions to the Eighth Amendment

The Study of Recent United States Supreme Court Decisions to the Eighth Amendment