State Case Law Research Articles

Current Development in the United States Case Law on Abortion and its Possible Impacts on the European Union and Continental Legal System

This article aims to acquaint readers with the role and decision-making practice of the (Federal) Supreme Court of the United States of America in the matter of artificial abortion and a woman’s right to abortion in general. Special focus is placed on jurisprudential development in 2022, as a landmark decision was issued in 2022, which significantly interferes with the right to abortion throughout the United States. Abortion and abortion policy is currently widely discussed across the United States. For several decades, it was clear beyond any doubt that abortion is, in essence, a fundamental human right arising from the Constitution itself (Fourteenth Amendment) and that a woman can – while respecting certain set rules – undergo abortion, particularly in the first trimester, at virtually any time, according to her will. However, what was regarded as a certain and fundamental women’s right arising from the Constitution, has been overruled by the U.S. Supreme Court in 2022 for the first time in 50 years. In addition to the description of the current situation in the United States, this article briefly reflects on the possible effects of the current state of jurisprudence in the United States on the continental legal system. This article is created and reflects the legal status as of December 1, 2022.

Law of the Sea and Maritime Delimitation: State Practice and Case Law in Latin America and the Caribbean

Law of the Sea and Maritime Delimitation: State Practice and Case Law in Latin America and the Caribbean

Expulsion of EU citizens from another Member State in the recent jurisprudence of the European Court of Justice II.

Aim: The aim of this study is to examine the direction in which the European Court of Justice can further develop its case law on expulsion decisions by Member State authorities in response to the new challenges facing European integration (including, in particular the practical difficulties arising from the completion of the Area of Freedom, Security and Justice and the divergent case law of the European Court of Justice).Methodology: Based on the most recent case law of the European Court of Justice, the study examines the areas in which it seems necessary for the Court to give interpretative decisions in the context of a prelimiray ruling procedure. The study is primarily based on actual (Member State) case law and its difficulties.Findings: The concept of a territorially united Europe is a necessary corollary to the completion of the Area of Freedom, Security and Justice. While the case law of the European Court of Justice on EU citizenship aims in many respects to strenghten this status (and, at the same time, to weaken Member States’ regulatory power) there is at least a partly opposite trend in the assessement of Member States’ expulsion policy under EU law. The study examines how the European Court of Justice can reconcile the federalising concept of EU citizenship with an expulsion policy based on sovereignity and the impact of all this on the unifying and expanding concept of EU citizenship.Value: The topic examined in the study has not been examined in the Hungarian literature before, the study is based on the latest case law of the European Court of Justice. The value of the study is that it attempts to identify the areas where the European Court of Justice may need to develop its case law in the near future to ensure the effective enforcement of EU law. The study can also provide guidance to domestic legislators and law enforcement agencies in this field.

A REVIEW OF LAWSUITS RELATED TO POINT-OF-CARE EMERGENCY ULTRASOUND APPLICATIONS

BackgroundPrevious investigators have assessed United States Case Law to evaluate the medicolegal risk surrounding point-of-care ultrasound applications. These studies have suggested that nonperformance is the primary source of an allegation of medical malpractice. ObjectivesThe objective of this study is to update the literature regarding medical malpractice cases involving ultrasound applications that could be used at the point of care, and assess the risk conveyed to advanced practice providers and by application of emerging applications of ultrasound. MethodsAuthors reviewed the Westlaw database for medical malpractice cases involving point-of-care ultrasound applications between December 2012 and January 2021. Cases were included if there was an allegation of misconduct by an emergency provider and if an ultrasound included in the American College of Emergency Physicians investigators core, extended, emerging, or adjunct applications was discussed to any degree. Investigators independently reviewed the cases for inclusion. Authors abstracted the case information, type of ultrasound performed, and the specific allegation of misconduct. ResultsNineteen cases met inclusion criteria. Seven cases involved core applications of emergency ultrasound and 13 involved extended, emerging, or adjunct applications. One case was included in both categories as it included elements of both core and extended applications. The most common primary allegation was failure to perform an ultrasound. No cases clearly alleged misinterpretation of a point-of-care ultrasound. ConclusionAs previous studies have suggested, nonperformance of ultrasound seems to convey the greatest medicolegal risk. Extended, emerging, or adjunct applications of ultrasound may convey a slightly higher risk.

Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice

Based on an analysis of State practice and case law, this article examines the theoretical justifications which have been put forward by scholars, the ILC and international tribunals to explain why, under Article 10 of the ILC Articles on State responsibility, the wrongful acts committed by rebels during an insurrection or a civil war are attributable to the State once they are victorious and have replaced the government. It will show that while the ILC ultimately relied on the existence of a ‘continuity’ between the insurgents and the new government, the vast majority of awards have referred instead to a number of other (less convincing) justifications, such as the fact that insurgents were during the rebellion exercising their authority as a ‘de facto government’ or that their victory represented the ‘national will’ of the people. The theoretical rationale behind the well-established principle under Article 10 is therefore not as solid as one would have thought. These findings are relevant to investment tribunals having to address in an increasing number of cases questions of State responsibility and attribution arising from rebels’ conduct in situations of civil wars.

Host States’ Due Diligence Obligation Towards Foreign Investors in the Context of Rebellions and Civil Wars

Abstract Based on an analysis of State practice and case law, this article examines one basic principle of international law embodied in Article 10 of the International Law Commission’s Articles on State responsibility. In the context of an unsuccessful insurrection or civil war, the host State is responsible for its own failure to discharge its due diligence obligation to protect foreign investors in relation to acts committed by rebels, i.e. to make all efforts within its capacity to suppress an insurrection and to take all reasonable measures to prevent injurious conduct by rebels and damages from occurring. This article examines the scope and content of this ‘duty to protect’ obligation, the applicable ‘test’ and the relevant circumstances to determine whether any breach of the obligation has been committed in light of recent investment awards analysing the full protection and security clause in the context of Libya’s civil war.

State Responsibility for the Conduct of Rebels in Situations of Unsuccessful Civil Wars: A Critical Analysis of the Cengiz v Libya Case

Abstract Based on an analysis of State practice and case law, this article examines one basic principle embodied in Article 10 of the International Law Commission Articles (ILC) on State responsibility: the wrongful acts committed by rebels during an insurrection or a civil war are not attributable to the State once the government defeats the insurgency. The article examines how investment tribunals can use Article 10 in the context of investor–State arbitration proceedings involving rebellions and civil wars. I will critically analyse the recent Cengiz v. Libya award rendered in the context of Libya’s civil war. I will show that the Tribunal failed to correctly applied Articles 4 and 10 of the ILC Articles. I will explain how the Tribunal could have made better use of the principles embodied in Article 10 to solve matters of State responsibility and attribution it was facing.

Voluntary intoxication, homicide, and mens rea: Past, present, and future.

Voluntary, or intentional, acute intoxication does not qualify for an insanity defense. However, in many jurisdictions, voluntary intoxication can create a diminished capacity to form a specific intent necessary for a criminal offense. This is a type of mens rea defense. Homicide provides a clear example where the absence of a required specific intent can lead to a lesser included crime that does not require that specific intent. Thereby, a mens rea defense may lessen a first-degree murder charge to a lesser degree or even manslaughter, depending on the jurisdiction. After reviewing the history of mens rea defenses and voluntary intoxication, we performed a search of LexisNexis for state statutes and case law regulating the use of voluntary intoxication in mens rea defenses, focusing on homicide-related offenses. In this article, we compare the different approaches that have developed to address this complex issue. We discuss why knowledge of these different approaches is essential to the practicing forensic examiner in relevant jurisdictions and explore developing issues in the area.

Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice

Based on an analysis of State practice and case law, this article examines the theoretical justifications which have been put forward by scholars, the ILC and international tribunals to explain why, under Article 10 of the ILC Articles on State responsibility, the wrongful acts committed by rebels during an insurrection or a civil war are attributable to the State once they are victorious and have replaced the government. It will show that while the ILC ultimately relied on the existence of a ‘continuity’ between the insurgents and the new government, the vast majority of awards have referred instead to a number of other (less convincing) justifications, such as the fact that insurgents were during the rebellion exercising their authority as a ‘de facto government’ or that their victory represented the ‘national will’ of the people. The theoretical rationale behind the well-established principle under Article 10 is therefore not as solid as one would have thought. These findings are relevant to investment tribunals having to address in an increasing number of cases questions of State responsibility and attribution arising from rebels’ conduct in situations of civil wars.

Gambiya'da Önerilen Mahkum Ayrıcalıkları: Amerika’dan Dersler

Convict enfranchisement is among the themes The Gambia Constitution Review Commission is addressing in its appraisal and updating of the 1997 constitution. The dawn of a new political dispensation necessitated the assignment to usher in a third republic. By means of the United States case law, a country where most felonies lead to disenfranchisement, this article examine the likely consequences of enfranchising convicts in The Gambia. Blalock’s Group Threat hypothesis explained the ulterior motives fuelling the enfranchisement call as the social dynamics of the country contrasts those of other nations like the United States which The Gambia seems to be keeping up with. Rather than addressing the issue of enfranchising an insignificant number of convicts, the conclusion shows that tackling constitutional irrationalities undermining the principles propping the separation of powers will be more beneficial.

Legal Nature and Enforcement of Settlement Agreements: Comparative Review

The article is devoted to two major issues: the substantive nature of settlement agreement, and legal remedies available for a creditor under compromise which interest is not satisfied voluntarily. Both issues are covered from comparative perspective employing Russian and the United States statutes, case law and doctrine. First, the paper demonstrates that, while Russian doctrines has evolved a sui generis approach to substantial nature of settlement agreement, United States tend to consider it as special contractual type with consideration granted specifically for termination of a legal dispute. Second, the article analyzes scope of res judicata effect invoked in course of Russian and U.S.-governed settlement, as well as common points and differences in granting creditors with relief in forms of specific performance and recovery of damages. Finally, the paper considers problem of rescission as remedy for material breach of compromise. Author comes to conclusion on desirability of employing this type of claim into Russian legislation.

Are EUIPO Trade Mark Examiners and the Boards of Appeal Bound by Precedent Decisions?

Abstract Are EUIPO examiners and appeal bodies bound by previous decisions of the office they belong to? Before the decision in Puma was issued, there was a succession of frequently referred to ECJ precedents which were apparently disregarded. EUIPO offices had been considered bound to the sole law (and, where precedents are concerned, only to ECJ case-law). However, after Puma, pursuant to the administrative duty to act consistently and to state the grounds on which decisions are based, it is concluded that relevance of EUIPO precedents (and of the ‘Trade mark guidelines’, as far as they are based on them) should not be set aside simply because they are not formal sources of law. Instead, they should be appreciated as rules of administrative procedure. In this sense, precedent EUIPO decisions should be recognised as more than just a persuasive power (which they share with all other relevant ‘precedents’ such as Member States case-law or offices’ decisions). In fact, it should be acknowledged that they also have a role within the duty of motivation of administrative decisions. So if EUIPO decides to depart from a precedent or from its ‘Trade mark guidelines’, explicit and detailed motivation of such departure is required. Even if the EUIPO is under a general duty to take into account the decisions already taken in respect of similar applications, a specific duty to take into consideration a given precedent requires that such precedents are duly reported with all relevant elements to be taken into consideration (factual context and legal reasoning) within the decision to be issued.

Cyber Extortion and Threats: Analysis of the United States Case Law

This article presents an analysis of the cyber extortion and threats cases brought to the United States courts. The inquiry employed content analysis to identify important elements and attributes and answers research questions concerning essential attributes, legal elements, and how do the courts interprets these offenses. The article extends the understanding of this phenomenon by providing a thorough discussion of the conceptual issues and characteristics and an analysis of the most important litigation aspects, such as intent, true threats, sentencing, and the insanity defense. The article concludes with recommendations for stakeholders, to more effectively address the phenomenon.

Comprenhensive reparation as a prevailing principle in the responsability of the state –A perspective based on the Constitutional Court and the Colombian Council of State case-law-

This paper addresses comprehensive reparation as a fundamental right and guiding principle in civil and State liability so that it is taken into account in a prevalent manner when assessing material and immaterial damages suffered by people. Due to the need to weigh such principle, there are many discussions raised from a normative, doctrinal, and – even- jurisprudential point of view, not only in the domestic sphere but also in the international sphere. However, its evolution has been remarkable and, currently, judges must apply it based on grounds of protection of human rights and international humanitarian law. For this research, the development, the analysis, the content, and the scope of the reparation principle was studied in the various international human rights instruments. Afterward, the research focuses on the criteria used by the Constitutional Court and the Council of State from 1991 onwards; along with the relevant doctrine on this subject. Lastly, the paper argues that the comprehensive reparation principle has consolidated as a prevalent principle within Colombian case-law which faces interesting interaction with the block of constitutionality and conventionality in the search of true restorative and transformative justice. DOI: http://dx.doi.org/10.21017/Rev.Repub.2020.v28.a77

Thomas M. Cooley and Enduring Constitutional Principles

Judge Thomas M. Cooley was one of the last of an old order: a jurist and constitutional treatise-writer cloaked in the traditions of Blackstone, Story, and Kent, a guardian of written constitutions, fundamental legal principles, and the English common law as adopted and modified by the states. His career peaked during Reconstruction and closed at the dawn of the Progressive era, when statesmen and jurists were first interpreting the most consequential amendment affecting the relationship between the states and central government. Many point out he was the most cited authority in federal and state case law for nearly half of a century, so knowing Cooley is knowing how the men of this transformative era understood our most fundamental law. He is in many ways a founder of modern constitutional law, and yet he is almost completely forgotten. Nearly 75 years of tunnel-vision scholarship often revolving around tenuous claims that Cooley was a political or economic ideologue has deprived legal thinkers of insights into how to understand American laws and constitutions. The purpose of this paper is twofold: first, to demonstrate that Cooley was no politician and was indeed a principled jurist. Second, to present his constitutional arguments and judicial philosophy by letting Cooley speak for himself through his most prominent treatises and his own judicial opinions. To map this paper broadly, Section I will review the existing, most prominent literature that has cast Cooley as a political or economic ideologue. Few have written on him exclusively, and none of them have separated his political background from his later judicial career. Section II will examine Cooley’s understandings of American constitutions and legislatures generally, with particular emphasis on his view of implied limitations on American constitutional government. Section III will turn to his judicial philosophy, methods of statutory and constitutional interpretation, and then three case studies from his time on the Michigan Supreme Court.

Posebna radnopravna zaštita materinstva

This article deals with the relationship between parody and intellectual property law. First, the author presents the concept of parody in European law. In this context, the CJEU judgment delivered in the case Deckmyn v. Vandersteen is extensively analyzed. In addition to discussing parody within the framework of copyright and trademark law, the author presents several cases from the emerging area of fashion law. As the CJEU has not ruled on any case concerning fashion law, the author mainly focuses on the United States case law. Most cases related to fashion law usually end in confidential agreements and out of court settlement. Yet, several cases were decided in national court proceedings. All these cases illustrate how parody is used ineverydaylife in the fashion world.

Parodija u pravu intelektualne svojine, u kontekstu modnog prava

This article deals with the relationship between parody and intellectual property law. First, the author presents the concept of parody in European law. In this context, the CJEU judgment delivered in the case Deckmyn v. Vandersteen is extensively analyzed. In addition to discussing parody within the framework of copyright and trademark law, the author presents several cases from the emerging area of fashion law. As the CJEU has not ruled on any case concerning fashion law, the author mainly focuses on the United States case law. Most cases related to fashion law usually end in confidential agreements and out of court settlement. Yet, several cases were decided in national court proceedings. All these cases illustrate how parody is used ineverydaylife in the fashion world.

When Students Refuse to Recite the Pledge of Allegiance: Preservice Teachers’ Responses

The Pledge of Allegiance is a culturally essential—and often legally mandated—daily exercise in many schools. With societal focus on patriotic exercises and many individuals’ subsequent refusal to engage in these exercises, it is important for preservice and inservice teachers to examine their approaches to students who refuse to recite the Pledge of Allegiance. This article explores preservice teachers’ forecasted responses to students who refuse to recite the Pledge in their future classrooms. In this case study, many preservice teachers foresee themselves as arbiters of students’ right to refuse recitation of the Pledge of Allegiance, incongruent with state statutes and case law.

Patenting of Human Genes: The United States, Canada and Australia Case Law

The paper is a review of the case law of the United States of America, Canada and Australia, in which an attempt is made to answer the question on possibility of human gene patenting. The paper substantiates the relevance of this issue, examines the ethical aspects of gene patenting. The author analyzes the landmark and most significant cases from the point of view of the development of patent law of foreign countries: Diamond v. Chakrabarty (USA), Association for Molecular Pathology v. Myriad Genetics (USA), Myriad v. Cancer Voices (Australia), The Children’s Hospital of Eastern Ontario (CHEO) v. Transgenomic (Canada). In the analysis, the author gives special attention to the arguments and conclusions of judicial institutions regarding the patentability of human genes. A conclusion is drawn regarding the continuity and possible harmonization of legislation and judicial practices of both the states mentioned in the paper and countries that have just embarked on the development of biomedical technologies.

Contracting Jurisdiction: Arbitration of Noncompetition Disputes in Employment Agreements

The law surrounding noncompetition agreements varies greatly among states. How broad can such an agreement be? What type of work can it cover? How long can it be enforced, if at all? Different states express vastly different policy preferences on the scope and enforceability of noncompetition agreements through legislation and common law. This creates uncertainty for both employers and employees. Increasingly, with support from the U.S. Supreme Court, arbitration clauses are being used to override the laws of particular states by contracting for the substantive law that will govern an eventual noncompetition dispute between employer and employee. This Article examines the ways in which noncompetition clauses and arbitration clauses must be drafted and read together within an employment agreement. It further explores the implications for the increasingly federalized nature of this aspect of employment law, analyzing recent state and federal case law. On balance, arbitration greatly bolsters the enforceability of noncompetition agreements by selecting favorable and predictable governing law. This reality has important implications for both employers and employees.