Seventh Amendment Research Articles

The Individual Income Tax Regime of China: Evolution and Debates

The author, in this article, describes the evolution of China’s Individual Income Tax Regime and the major changes made by the Seventh Amendment in 2018, and then analyses a number of issues with regard to the current regime.

Advocacy through the Computer Screen: The Legal Permissibility of Jury Trial by Videoconference

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

Equity, Law, and the Seventh Amendment

The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in contemporary federal courts by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that favors the second of these two incommensurable inquiries. The test is anachronistic and internally incoherent, and it leads to anomalous results. This Article critiques the current approach and offers a new test for the scope of the Seventh Amendment civil jury trial right. This test would presume a civil jury trial right, but with three categorical exceptions—one for claims developed in equity, another for remedies developed in equity, and a third for case-aggregating devices developed in equity (e.g., the class action). The historical inquiry that is required would be somewhat stylized. But it is more manageable than the current approach, and it would allow judges to determine the scope of the civil jury trial right with greater predictability and accuracy. Beyond addressing the scope of the Seventh Amendment right, this analysis also has implications for incorporation—should the states remain free to decide whether to retain a distinction between law and equity in their own courts?

Are Circuit Courts Right to Deny Jurors the Ability to Set Punitive Damages?: The Curious Case of Marla

2019 was a strange year. One of its strangest cases was decided only a month ago. The case—Saccameno v. Ocwen—involves a dizzying nightmare of facts. The jury thought the ordeal, which caused the plaintiff to develop severe mental illness, merited $3,000,000 in punitive damages. The 7th Circuit disagreed with both the jury and the district judge, partly because (it said) the reprehensibility analysis used to determine the constitutionality of punitive damage awards takes a plaintiff's deteriorating physical but not mental state into account. In doing so, it lowered the award to produce a 1:1 ratio of punitive to compensatory damages—$582,000. Although it may have been legally correct, the 7th Circuit's decision highlights a troubling trend in American law—one undermining the Seventh Amendment—wherein judicial elites instead of juries, our most democratic institution, are empowered to decide punitive damages awards.

Deciding Fair Use

An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense — but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence — much less a command.

The 3D reconstructed skin micronucleus assay: considerations for optimal protocol design.

Implementation of the seventh amendment to the EU Cosmetics Directive has driven much research into suitable in vitro alternative assays to support satisfactory risk assessments. One such assay is the reconstructed skin micronucleus (RSMN) assay. First reported in 2006, further development occurred and a standard protocol was published in 2011. To evaluate and optimise the assay at Covance Laboratories, we tested nine chemicals [4-nitrophenol (4-NP), cyclohexanone (CH), 2-ethyl-1,3-hexanediol (2-EHD), methyl methansulfonate (MMS), mitomycin C (MMC), ethyl nitrosourea (ENU), benzo[a]pyrene (BaP), cyclophosphamide (CPA) and vinblastine (VIN)] using the EpiDerm™ 3D skin model (MatTek Corporation®, IVLSL, Bratislava, Slovakia) and compared the data using the standard 48-h treatment regimen and also an emerging 72-h treatment protocol. The EpiDerm™ tissue has reportedly some metabolic capacity but data using 48-h treatments has provided mixed results. Our investigations demonstrate that the two chemicals requiring metabolic activation (BaP and CPA) were negative following the 48-h protocol but were clearly positive following 72-h treatment. Furthermore, Replication Index (RI) data showed higher RI values in vehicle control treatments (indicating increased cell division) across the treatment set following 72-h treatments. A general greater magnitude of micronucleus (MN) induction was also observed following test chemical treatment. These data suggest that the 72-h treatment protocol is more suitable as a standard approach for the detection of clastogenic, aneugenic and metabolically activated chemicals in the RSMN assay. For further assay optimisation, we compare the statistical power of scoring cells from duplicate or triplicate cultures per treatment concentration and provide recommendations.

Oil States and Patent Takings

This Note discusses the Supreme Court's Oil States Energy Services, LLC v. Greene’s Energy Group, LLC decision, which upheld the constitutionality of the inter partes review (IPR) process under Article III and the Seventh Amendment. This Note further explores the undecided issue of whether the Takings Clause applies to IPR proceedings and describes a framework for applying regulatory takings analysis to patent rights taken during IPR.

Rediscovering the Issue Class in Mass Tort MDLs

For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation academy are emphatic that procedures for selecting and compensating class action counsel are uniquely rooted in the language, history and structure of Rule 23: when pirated away from their doctrinal home, we are told, these collective practices become contraband. The thesis of this essay is that judges and commentators are wrong to categorically reject class-based procedures in mass tort MDLs, as they do. Contrary to popular belief, Rule 23 does provide, if not a grab bag (that’s too opaque), a Black & Decker toolbox chock-a-block with shiny and promising instruments. Most centrally, we contend that Rule 23(c)(4), when properly employed, provides a doctrinally sound and constitutional means for achieving scale efficiencies in mass tort cases. Indeed, the issue class device is unique, among potential approaches to mass-harm litigation, in its ability to confer – meaningfully and durably – preclusive effects to core issues and shave years off of otherwise “black hole” MDL litigations – all while remaining fully consistent with Supreme Court case law, the Seventh Amendment, the text of Rule 23 and other relevant sources of positive law.

Útközben – Alapkérdések a szervezetileg önálló közigazgatási bíráskodás megszervezése kapcsán

In 2018 Hungary arrived at a turning point in the history of public administration: The seventh amendment of the Hungarian Constitution (Hungarian Fundamental Law) inserted the institution of self-governing administrative courts into the rules on courts. This paper deals with many of the basic questions of administrative justice, and of course, careful analysis of historical examples is not avoided. From the very beginning, the birth of the Hungarian administrative court (which the author regards as the day of the first meeting of the financial administration court) until last year’s constitutional amendment, the main changes follow. The extent of legal protection by administrative courts and the constitutional protection function that they may have implemented is an important issue. To understand today’s changes, one has to know the concept of the socialist (communist) state’s legal system on administrative court review.

U.S. Patent Litigation Juries and a Solution for Improving Jury Comprehension

The right to a trial by jury is a basic and fundamental feature of American federal jurisprudence, protected by the Seventh Amendment. Over the past several decades, patent litigation has gone through several transformations in an effort to resolve disputes fairly and efficiently. The Apple-Samsung trial increased the publicity of high profile patent litigation cases and provoked skepticism from legal scholars on the validity of the current patent litigation system. Judge Richard Posner mistrusted judges’ and jurors’ abilities to decide complex patent cases effectively. Judge Posner, and others, argue that it’s time to end jury trials in patent cases. However, improvements can be made to the current patent litigation system without eliminating patent jury trials. This article focuses on the current U.S. patent litigation system, patent litigation systems in other countries, current revisions to improve U.S. patent litigation trials, and proposes a mixed jury solution to ensure jurors fully understand the complex and technical facts of a patent case.

Equity and the Seventh Amendment

This Article reconsiders the scope of the jury trial right under the Seventh Amendment. It argues that a more historically sound and judicially administrable test can be formulated. The jury trial right should be presumed, with three categorical equitable exceptions: suits in equity’s exclusive jurisdiction (e.g., trust law), suits for equitable remedies (e.g., injunction), and suits that make use of equitable case-aggregating devices (e.g., class actions). This argument has implications for the scope of the jury trial right and for the scope of equity in American law.

Casting Aspersions in Patent Trials

Bad actors in patent litigation can face serious consequences. Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees. These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics). Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these remedies—whether and to what extent they should be tried to a jury. Under current law, willfulness can be tried to a jury but bad-faith enforcement cannot. This means that plaintiffs alone can legitimately cast aspersions at defendants that profoundly color the case and the jury’s views of it.It has long been held that willfulness is an issue triable by jury, but courts have reached that conclusion without conducting the proper analysis, which requires delving into the historical treatment of the issue. This article performs that analysis, finding that the Seventh Amendment does not guarantee a right to try willfulness to a jury. Nor does the Seventh Amendment require that questions of bad-faith enforcement be tried to juries. Both issues lack clear historical antecedents or analogues that would suggest juries decided the issues when the Seventh Amendment was ratified. Whether such issues should be tried to juries likely comes out in the negative as well. Juries are ill-equipped to appreciate the proper significance and context of evidence touching on willfulness and bad-faith enforcement, which typically includes matters of claim construction, discovery, legal interpretation, or settlement discussions. And evidence about a party’s culpability can easily bleed into the threshold liability and damages determinations, resulting in unsupportable compromise verdicts on those issues.The best practice would be to try neither issue, but as it is, with willfulness being submitted to juries, a separate question is whether that alone justifies trying bad-faith enforcement to juries as well. This article demonstrates that basic fairness, as well as evidentiary practicalities for how such issues are proven, compels that both issues be tried together, and to the same jury, to ensure that juries hear both sides of the story before they assign moral blame.

Brief for 72 Professors of Intellectual Property Law as Amici Curiae in Support of Respondents in Oil States Energy v. Greene's Energy

This is a brief of 72 IP professors opposing the claim in Oil States that the IPR procedure is unconstitutional. Petitioner argues that only a court – indeed, only a jury – has the power to decide that the United States Patent and Trademark Office erred in granting a patent. That argument flies in the face of the history of patent law and this Court’s precedents. Patents are a creature of statute: as early as 1834, this Court specifically recognized that there is no “natural” or common law right to a patent. Rather, under its Article I power to establish a patent system, Congress is charged with determining the contours of the patent grant. Congressional power to establish the terms and conditions of the patent grant includes the power to establish a system for administrative correction of erroneously granted patents. PTAB error correction is also narrow in scope, targeted towards bad patents that district court litigation would not address, and only a modest extension of prior administrative correction proceedings. Moreover, even this narrow scope is subject to significant appellate court control. PTAB review thus addresses the social cost of erroneous patent grants without threatening Article III values. The Seventh Amendment does not compel a different conclusion. While patent infringement cases were tried to juries at common law, both the government and judges retained the power to revoke patents in England and in the early United States. When patent validity questions were considered in American courts throughout history, they were frequently considered by judges, not juries. And court consideration of patent validity issues coexisted with actions by the legislative and executive branches to revoke patents, actions which of course did not require a jury. While this Court need not reach the Seventh Amendment issue in order to dispose of petitioner’s claims, should it reach that issue it should make clear that the Seventh Amendment does not create a right to jury trial on patent validity.

Brief of Professor Suja A. Thomas As Amicus Curiae in Support of Plaintiff-Appellant Jerberee Jefferson and Reversal of District Court

This amicus brief to the Eleventh Circuit, filed in an employment discrimination case, argues that the issue of whether summary judgment is unconstitutional has not been decided, argues summary judgment is unconstitutional under the Seventh Amendment, and argues that the reasonable jury standard underlying summary judgment is unconstitutional.

Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings

Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive toward the delegation of judicial power to non-Article III tribunals. Meanwhile, the justices responsible for the FAA’s modern metastasis continue to question, quite vociferously, other congressional delegations of judicial power to non-Article III bodies. But those same justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. Such analytical incoherence is the focus of this Note.Part I describes the historical judicial disposition toward arbitration in the United States both before the FAA’s passage and in the decades following its enactment. Part II gives an overview of the FAA’s statutory framework, including key decisions that have come to shape it. Part III discusses the failures of past challenges to the FAA, namely Seventh Amendment and unconscionability arguments that litigants have used to avoid arbitration. Part IV develops the heart of this Note with a comparative analysis of the Supreme Court’s scrutiny of statutes and international treaties conferring adjudicatory power upon non-Article III bodies relative to the FAA’s currently untested scheme of delegation. Part V then examines one scholar’s attempt to rescue the FAA from constitutional ruin and argues that such attempts are futile given the institutional interest that Article III serves. Part VI concludes.

The Supervision Role of BPOM on Paper Used for Snacks Food Packaging Based on the Presidential Regulation Number 3 of 2013 on the Seventh Amendment of Status, Tasks, Functions, Organizational Structure Authority, and Work Mechanism of Non-Government Institutions

Packaging foods derived from waste paper is very dangerous, because of its lead content, which is a component of heavy metals contained in the ink on the paper, in the waste paper and contaminated food sold by street food business operators that can harm consumers. This study aims to determine the role of supervision of Food and Drug Inspection Agency (BPOM) on the use of recycled paper for packaging food as well as to know the legal regulations related to protecting consumers from the dangers of the use of wastepaper as food wrapping. The method used is normative. By using descriptive analytical research specifications, and using techniques of data collection in the form of literary study that uses the primary legal materials, secondary and tertiary. Then do the field research based on interviews that are supporting the research literature. Data will be analyzed by the method of analysis is qualitative analysis without using formulas and figures. The results of this study illustrate that the surveillance conducted by BPOM to use recycled paper for packaging of food is done, but cannot be implemented to the fullest because it is not supported by the cultural awareness of businesses and consumers who do not care law. Second, the rules in force is not enough to protect consumers, because of the lack of regulations specifically prohibit the use of waste paper as a snack food wrappers.

Paralyzing Small Investors Under the Guise of Melioration: A Critical Evaluation of SEBI ICDR Fifth and Seventh Amendment Notifications

The enactment of the SEBI Act was the result of key changes in the policy framework-recognition of the importance and the necessity of developing the Indian Securities Market towards building the economy of an emerging country and transition from the control based regime to the disclosure based regime. Influenced by the extraneous considerations, SEBI unscrupulously with its series of Amendment Notifications and Circulars has driven the retail investors in the capital markets to a mountainous cliff. The Authors through this paper severely criticize the amendments relating to the mandatory use of ASBA mechanism for subscribing to securities in a public issue and the reduction of pages of abridged prospectus by SEBI through the study of the role of Information and Communication Technology and the societal diffusion. The study analyzes the role played by the retail investors in the capital markets and through this paper condemn the regulatory authority for its discriminatory series of amendments. Actions by SEBI pertaining to the issuing and effecting the SEBI notifications and said SEBI circulars, is in total denial of the essence of ‘Rule of Law’ enshrined under Article 14 of the Constitution of India. Nuances by the authors is to urge the regulatory authority that SEBI Act is pre-eminently a social welfare legislation and the delving into the societal scenario is a must, for answering the question of cui bono. Unfortunately the hope and the promise of the consumer of financial services has been withered away.

Eye Irritation Test (EIT) for Hazard Identification of Eye Irritating Chemicals using Reconstructed Human Cornea-like Epithelial (RhCE) Tissue Model.

To comply with the Seventh Amendment to the EU Cosmetics Directive and EU REACH legislation, validated non-animal alternative methods for reliable and accurate assessment of ocular toxicity in man are needed. To address this need, we have developed an eye irritation test (EIT) which utilizes a three dimensional reconstructed human cornea-like epithelial (RhCE) tissue model that is based on normal human cells. The EIT is able to separate ocular irritants and corrosives (GHS Categories 1 and 2 combined) and those that do not require labeling (GHS No Category). The test utilizes two separate protocols, one designed for liquid chemicals and a second, similar protocol for solid test articles. The EIT prediction model uses a single exposure period (30 min for liquids, 6 hr for solids) and a single tissue viability cut-off (60.0% as determined by the MTT assay). Based on the results for 83 chemicals (44 liquids and 39 solids) EIT achieved 95.5/68.2/ and 81.8% sensitivity/specificity and accuracy (SS&A) for liquids, 100.0/68.4/ and 84.6% SS&A for solids, and 97.6/68.3/ and 83.1% for overall SS&A. The EIT will contribute significantly to classifying the ocular irritation potential of a wide range of liquid and solid chemicals without the use of animals to meet regulatory testing requirements. The EpiOcular EIT method was implemented in 2015 into the OECD Test Guidelines as TG 492.

Eye Irritation Test (EIT) for Hazard Identification of Eye Irritating Chemicals using Reconstructed Human Cornea-like Epithelial (RhCE) Tissue Model

To comply with the Seventh Amendment to the EU Cosmetics Directive and EU REACH legislation, validated non-animal alternative methods for reliable and accurate assessment of ocular toxicity in man are needed. To address this need, we have developed an eye irritation test (EIT) which utilizes a three dimensional reconstructed human cornea-like epithelial (RhCE) tissue model that is based on normal human cells. The EIT is able to separate ocular irritants and corrosives (GHS Categories 1 and 2 combined) and those that do not require labeling (GHS No Category). The test utilizes two separate protocols, one designed for liquid chemicals and a second, similar protocol for solid test articles. The EIT prediction model uses a single exposure period (30 min for liquids, 6 hr for solids) and a single tissue viability cut-off (60.0% as determined by the MTT assay). Based on the results for 83 chemicals (44 liquids and 39 solids) EIT achieved 95.5/68.2/ and 81.8% sensitivity/specificity and accuracy (SS&A) for liquids, 100.0/68.4/ and 84.6% SS&A for solids, and 97.6/68.3/ and 83.1% for overall SS&A. The EIT will contribute significantly to classifying the ocular irritation potential of a wide range of liquid and solid chemicals without the use of animals to meet regulatory testing requirements. The EpiOcular EIT method was implemented in 2015 into the OECD Test Guidelines as TG 492.

Globalization and Localization of Heritage Preservation in Taiwan – an Analysis Perspective under the Cultural Heritage Preservation Act

Abstract. The key contribution to the legislation of heritage preservation in Taiwan primarily derived from the historical monument movements in the 1970s. Specific legislation results include the establishment of Council for Cultural Affairs and the implementation of the Cultural Heritage Preservation Act in 1982. Although the Cultural Heritage Preservation Act is the first subjective cultural act, its lack of structure during the initial commencement stages made it un-conducive to heritage preservation and thus unable to meet the people’s expectations. Therefore, throughout the 33 years after the implementation of the Cultural Heritage Preservation Act, the Act has been amended 6 times. These amendments reflect the degree of importance that the society has attached to heritage preservation, and the innovative system also showcases the progress in preservation concepts and methods. These innovative orientations, such as emphasizing on the authenticity and integrity of heritage preservation, intangible cultural heritage, and cultural diversity, conform to the international preservation trends. They are also local trends such as encouraging community participation, adaptive-reuse, or enhancing the local governments’ powers to implement local cultural governance. This is particularly true for the fifth comprehensive revision in 2005, which has symbolic significance because its contents epitomized the heritage preservation work while moving Taiwan’s heritage preservation system towards globalization and localization. Therefore, we analyzed the Cultural Heritage Preservation Act amendment and revision processes over the past 33 years to highlight the innovations in Taiwan’s cultural heritage work and illustrate their globalization and localization features. Finally, we proposed recommendations for Taiwan’s preservation work in the future as the Cultural Heritage Preservation Act is about to undergo its seventh amendment in 2015.