State Courts Research Articles

Neuroscientific Evidence in Trials of Young Perpetrators Involved in Armed Conflict and Mass Atrocity

ABSTRACT In many jurisdictions, the criminal responsibility of adults is demarcated from pre-adults (adolescents, pre-adolescents, and children) based on a threshold criterion – one is either an adult or a pre-adult, and different levels of responsibility are accordingly inferred and imputed. But in a world where complexity is growingly acknowledged, and by that token, nuance and variety, there has been a predilection for the spectrum over the binary – or the scalar over the threshold. In the context of juvenile justice, this has manifested in a move away from the binary demarcation between adults and pre-adults through a growing faith in brain developmental science, which in turn, focuses on the developmental stages of the prefrontal cortex (PFC). In pre-adults, especially in adolescents, immature PFCs account for impulsiveness, volatility, and influence by peers, which in turn impact judgment and decision-making. These findings have been introduced in a few state and federal US courts trying juveniles, and recently, in the ICC trial and appeal of Dominic Ongwen, a child soldier. This paper assesses the nature, scope, and treatment of neuroscientific evidence, and lays down guidelines about its anticipated application in international trials involving vulnerable perpetrators such as juveniles.

Does the effect of employment protection depend on the composition of unemployment?

I develop an equilibrium-matching model with job rationing and endogenous layoffs in order to investigate whether the composition of unemployment (rationing versus frictional) influences the way firing costs affect employment. The model suggests that firing costs lead to a strong adverse employment effect if unemployment is mainly caused by job rationing, whereas in labor markets driven by search frictions firing costs have only a negligible impact on employment. The paper tests this hypothesis using data on the adoption of wrongful-dismissal laws adopted by U.S. state courts during the 1970s and 1980s. Results indicate that for two of the three wrongful-dismissal laws investigated, unemployment composition is crucial for the induced employment effects.

Arbitration In Legal Remediesn Against Dispute Resolution Construction Service Contract

The purpose of this research is to find out what are the advantages and deficiencies in problem solving through arbitration and how the process dispute resolution through arbitration in construction contract disputes. By using research methods juridical normative, it can be concluded, that: 1. Arbitration is the way settlement of a civil dispute in outside the general court based on arbitration agreements made written by the parties to the dispute. 2. The existence of a written agreement negates the right of the parties to apply resolution of disputes or disagreements what's included in the agreement state court.

Upholding the independence of constitutional courts in the EU beyond illiberal tendencies. Towards further convergence?

This article explores the impact of the CJEU case law on the independence of constitutional courts in EU member states that have not experienced an illiberal shift, and whether it will lead to further convergence among EU members regarding their models of constitutional justice. While EU standards on judicial independence have justifiably emerged in a context of crisis, they have become autonomous standards of EU law, applicable to all EU member states. However, such standards may be at odds with the current legal frameworks and practices operating in some EU member states. This paper argues that the development of EU standards on judicial independence and impartiality may positively impact member states that do not experience a rule of law decline. On the one hand, they underline possible anomalies that may exist in the appointment procedures of national constitutional judges. On the other hand, this tension paves the way for a European dialogue on the definition of constitutional justice and the promotion of a rule of law culture.

Constitucionalismo transformador y derecho internacional de inversionesTransformative constitutionalism and international investment law

Abstract International investment law faces five core legitimacy challenges: the state-dependency challenge, the human and constitutional rights challenge, the equality challenge, the standard of protection challenge, and the investor state dispute settlement system challenge. This article endorses the claim that constitutional courts can contribute to the solution of those legitimacy challenges when they exercise the power to review the constitutionality of international investment treaties. From a transformative perspective, constitutional courts of host states can: (i) create public deliberation and raise awareness concerning the legitimacy challenges of international investment law; (ii) grant equal treatment to national and foreign investors; (iii) require governments to negotiate less open-textured provisions in international investment treaties; (iv) safeguard the protection of human and constitutional rights, and other common goods; and (v) raise due process, predictability, transparency, and proportionality standards concerning the investor state dispute settlement system. These judicial undertakings can strengthen the bargaining power of host executive branch authorities in the negotiation of international investment treaties and can narrow down the space of discretion of international investment arbitral tribunals. Both outcomes could render international investment treatises’ creation and enforcement more legitimate.

The Impact of Judicial Selection Method on State Supreme Court Justice Ideology

Among political institutions in the United States, state courts are surprisingly susceptible to ideological extremism because of the non-uniform ways judges are selected. In this paper we examine the effect of selection methods on the ideological composition of state supreme courts. We theorize that methods involving partisan politics lead to more ideological justices and that, among that subset, Republican affiliated justices will be the most extreme. We test our expectations using a dataset of over 600 state supreme court selections between 1961–2011. Using a contemporary matching algorithm designed to maximize causal identification, we find support for our hypotheses. Our results speak to the consequences of federalism in court composition and offer an insight into how polarization manifests in the judiciary.

Does participation in a court-based trauma-focused evaluation program influence permanency outcomes for children involved in the child welfare system?

BackgroundChildren involved in the child welfare system, especially those in out-of-home care, experience high rates of mental health symptoms. Mental health symptoms have been linked to worse permanency outcomes in this population. ObjectiveThe present study aimed to evaluate whether children who received a trauma-focused evaluation, compared to children who received usual care, experienced differential permanency outcomes, as well as other court-related outcomes (e.g., legal system involvement). Participants and settingOne-hundred and twenty-five children (58% female, Mage = 10.61) from a family court in the Northeastern United States participated in a trauma-focused evaluation program. MethodsData for the current study were collected via a retrospective chart. Participants were recruited at a family court of a Northeastern state. Between-groups differences on court-related outcomes were assessed using logistic regression and Kaplan Meier estimates. FindingsThere were no significant differences between children who received the trauma-focused evaluation program versus usual care in the likelihood for guardianship changes, termination of parental rights, new child welfare petitions or new juvenile legal petitions. The groups significantly differed in the likelihood of case closure; children who received the trauma-focused evaluation program were more likely to experience case closure compared to children who received usual care. Additionally, on average, children who received the trauma-focused evaluation program achieved case closure almost 8 months sooner. ConclusionsThe findings suggest that initiatives aimed at identifying mental health concerns and linking children placed in out-of-home to relevant mental health services care can have a significant and positive impact on permanency outcomes.

Changes of Paradigm in Private International Law of Contracts – A high-level comparison between 1989 and 2024, with tribute to the Unidroit Principles, the development of arbitration law and to Simplified Global Contracting

The article on German private law of contracts compares the state of private international law in Germany in 1989 with its state today, in 2024. It demonstrates a change of paradigm by looking at six selected parameters of relevance: (i) the respect of constitutional rights and European fundamental freedoms, (ii) the unitarian European character of private international law of contracts, subject to treaties, (iii) the dissemination of the CISG, (iv) the emergence of the the Unidroit Principles as a sound system of general principles and rules of international commercial contracts, (v) the development of international arbitration, and (vi) the emergence of internet and data platform based comparative legal research. Regarding the traditional private international law of contracts, as applied by European courts (of member states of the European Union), the author observes that more European uniformity has come at the cost of complexity. At the same time, the emergence and dissemination of the Unidroit Principles – described as “the biggest achievement of the international legal society since the year 534” – has enabled Simplified Global Contracting (i.e. the choice of the Unidroit Principles in combination with an arbitration clause) and thereby more freedom on a global level.

WHITE COLLAR CRIME AS ORGANIZED INSTITUTIONAL CRIME

The object of treatment in this paper is the problem of detection and treatment of corruption. There is no single definition for corruption and in this case it is limited to the corruption practices of white-collar crime, being a link to institutional organized crime, with confirmation of the suspicion of crime in the Prosecutor's Office - especially that of serious crimes which is the main pillar of the state in this right to enforce the law and fight the phenomenon, as well as the state courts. Its meaning is broad and cannot be defined only by accepting or giving a bribe to an official or buying it, as is often practiced. Corruption is often carried out by a highly organized group of people, which gives us elements of institutional organized crime. Since corruption, especially political corruption, is carried out by highly qualified and professional persons, this greatly complicates the operation of the law, detection, investigation, prosecution and judgment of authoritative persons, decision-makers, due to the great powers to hide the traces of corruption and especially the crime of money laundering, being a serious consequence and with great material and moral damage for the citizens of a state. Due to the problems leading to the discovery and proof of this crime and due to the way it is committed, the secret nature, corruption is part of the crimes where the rate of proof is extremely low or even definitely impossible. The work is mainly elaborated on the problems encountered not only by the agencies, the bodies that have a mandate to prevent and fight this negative phenomenon in our society, but also the media and especially the citizens who are involved in harm from authoritative persons and state institutions. A major problem where the citizen there is no address for orientation and when the organized Institutional group usurps the State Institutions and in some form is created as a Mafia group.

Upstream Review of intra-EU ICSID Arbitrations and Its Consequences: A Commentary on the Order of the Bundesgerichtshof (German Federal Court of Justice) in I ZB 43/22 MAINSTREAM Renewable Power et al. v. Germany

EU Member States may have recourse to ‘upstream’ national judicial protection under the German Civil Procedure Code to declare inadmissible and thereby preclude intra-EU investment arbitration proceedings brought under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) Convention. That remarkable conclusion by the Bundesgerichtshof (German Federal Court of Justice) constitutes the first attempt of a higher court of an EU Member State to render compatible the seemingly contradictory obligations on national courts arising from EU law and the ICSID Convention. However, even more important than the court’s conformity assessment are the inherent consequences of its conclusion: the incompatibility of the ICSID Convention with EU law and the obligation, on all EU Member States and their institutions, to disapply that convention in intra-EU investment arbitration matters and ultimately to denounce it collectively.

Master planning ‘as a verb’: enforcing participatory planning through the Brazilian courts

ABSTRACT Brazil is well-known for participatory planning praxis anchored on the right to the city and federal legislation. Yet little is known about how the right to participation materializes through the courts. Focusing on the right to participation beyond legislative and executive branches, we analyze jurisprudence on participatory planning through decisions in two state courts of appeal. We illustrate higher court magistrates’ awareness about the right to participate despite disregard of procedural participation in other instances. Seeing master planning ‘as a verb’, the contentious meaning of participation in the judiciary is intertwined with the standing of master plans in city governance.

Retribution for tribal sovereignty: Settler colonial policing and civil justice impacts

Unique among marginalized groups, American Indians are both citizens of the United States and citizens of sovereign tribal nations, as recognized (but not granted) by federal Indian law. However, even as tribal nations exert increasing economic and political power, criminal legal outcomes for tribal members—who interface with an array of tribal, local, state, and federal law enforcement and justice systems—remain detrimental or are worsened. These outcomes also include increased contact with state courts and the delegitimization of tribal courts, which uniquely implicate the civil justice context. We use the settler colonial framework to investigate how tools of state criminal law, such as heavy policing and disparate punishment, may impact the civil justice needs of Indigenous people, and more broadly, the very sovereignty these policies aim to protect. Drawing on interviews and observations in tribal and county-level courts, we examine the experiences of American Indians and other stakeholders in Indian country. We identify how enforcement practices, surveillance of space, and the complexities of layered policing within a “jurisdictional maze” contribute to the deterioration of tribal sovereignty. We contextualize our findings by considering the historical, cultural, and socio-economic factors that influence the experiences of American Indians in the criminal justice system, and by examining the civil justice implications.

Faith in school: balancing no establishment and free exercise of religion guarantees in American education

AbstractAmerican schools are governed by a complex lattice work of federal, state, and local laws and regulations, many of them tailored specifically to primary, secondary, or higher education. But all schools are subject to the same First Amendment guarantee that ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof’. This constitutional guarantee of religious freedom has produced a substantial body of case law. Nearly one-third of the United States Supreme Court's cases on religious freedom – 74 out of its 247 cases reported from 1815 to 20231 – have addressed issues of religion and education. All but six of these cases were decided after 1940, the year the Court first began to apply these guarantees to state and local governments alongside ‘Congress’;2 and for each Supreme Court case, there are scores of lower federal court and sometimes state court cases that add further nuance and amplification. This article summarises, and critically analyses, this ever-evolving jurisprudence.

Legal Analysis of the Interpretation of Adapted Physical Education in US Law

ABSTRACT The Individuals with Disabilities Education Act (IDEA) is a cornerstone of special education and mandates for physical education (PE) and adapted physical education (APE). Little is known about how these areas are interpreted within court cases. We employed a legal content analysis to examine the interpretation of IDEA in state and federal court cases related to PE and APE. Among the seven cases examined, schools were identified as the prevailing party in most cases. Cases highlighted the significance of proper documentation of PE and APE, the limited involvement of trained adapted physical educators, and misconceptions surrounding PE and APE. Findings underscore the gap between legal interpretations and academic understanding of PE and APE within IDEA.

Study Against Corruption Punishment of the Village Owned Enterprise Agency (BUMDes) of Berjo Village in Karanganyar District

By closing the case of the village chief who is involved in the corruption of village funds and the allocation of villages funds who have already been accused are subject to the threat of punishment in accordance with Articles 2 and 3 of the Act No. 31 of 1999 as amended by the Law No. 20 of 2001 on the Suppression of Criminal Prosecution of Corruption. How to Juridic Analysis of High Court Judges' Judgment Semarang No. 13/PID.SUS-TPK/2023/PT Smg against the Elements of Justice and Legal Certainty for Corruption Criminal Offenders BUMDes Berjo. The type of research used by the author is normative jurisprudence or library law research or doctrinal law research that can be interpreted as legal research by studying library and secondary materials. The method of approach used in this normative jurisprudence research is the Case Approach to Legislation. The data source used is Decision No. 13/PID.SUS-TPK/2023/PT Smg, No. 31 of 1999 on Combating Corruption Punishment, as amended and supplemented by the Law of the Republic of Indonesia No. 20 of 2001 on Amendments to the Law No. 31, 1999 of the Republik of Indonesia on Combatting Corruptions Punishments. Data Collection Techniques using Libraries and Documents Studies. Data Analysis Techniques with Qualitative Analysis.SUS-TPK/2023/PT SMG violates Article 2 paragraph (1) jo. Article 18 of the Law of the Republic of Indonesia No. 31 of 1999 on the Elimination of Crimes of Corruption, as amended and supplemented by the Law No. 20 of 2001 on the Amendment to the Law on the Supreme Implementation of the Constitution of the Republik of Indonesia Number 31 of 1999, on the Reduction of Criminal Implications of Coruption. Article 55 (1) paragraph 1 of the Code, with the elements of the following article: "Everyone". The element "Fighting the Law". The item "Committing an act of enriching himself or another person or a corporation". Item "Can harm the finances of the state or the economy of the State". The unit "Who commits, who commits and who accompanies the act". (1) That the judge of the High Court of Semarang ruled the corruption criminal case conducted by the village chief Berjo Suyatno bin Kartorejo was in accordance with the norms in force but in the view of the author still leaves a striking disparity dropped to the accused in corruption cases committed by officials or someone who has power. The prosecution against the accused is too light and has not satisfied the sense of justice in the community in particular for the people of the village Berjo Prefecture of Ngargoyoso district of Karanganyar and does not cause the effect of seizure for the defendants who have used the people's money (the community of the Village Berjo prefecture NgarGoyoso District of Karaganyar) for the personal interests of the Accused.(2) That the amount of the replacement money, although in the appellate judgment of the High Court of Semarang is greater than the judgement of the State Court, the penalty of imprisonment against the defendant as a substitute for the unpaid substitute money, is still too light and tends to be preferred to refrain from paying or refusing to refund the size of the compensation money to be paid by the accused and carrying out the criminal sentence in prison in exchange for the unepaid replacement payment money. Thus, it has been backward with the Government Program in an effort to maximize the reimbursement of the State/Region losses as a result of the corruption crime that has occurred.

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

AbstractThe preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.

The implementation specifics of the right to be forgotten in the context of the decisions of the Court of Justice of the European Union and the European Court of Human Rights

The article is dedicated to the legal analysis of the case law of the CJEU and the ECtHR regarding the implementation of the right to be forgotten and the right to privacy. It is established that the development of digital technologies has enabled rapid information exchange and its almost indefinite storage in the digital environment. However, such widespread availability of data about individuals and the inability to update or supplement this information have posed new challenges to society in ensuring the protection of personal data and privacy. The right to be forgotten is one of the tools through which a person can delete truthful but outdated information about themselves on the Internet, provided that such information is not of public interest. It is proven that although the right to be forgotten has been implemented within the EU for over a decade, lawyers and human rights activists consider it the second most complex obligation of the General Data Protection Regulation to implement. It is argued that both the CJEU and the ECtHR often inadequately describe the factual circumstances of cases and disregard the confidentiality of the parties involved. Individuals who apply to the court for the deletion or anonymization of personal data on the Internet often receive the opposite effect due to the public and scientific community’s interest in such cases. It is argued that in order to maintain a reasonable balance between privacy and freedom of expression, court decisions should contain all factual circumstances of the case, but the personal data of the parties involved and other circumstances that may indicate the applicant should be anonymized. This will help avoid censorship, ensure the right to memory, and enable an understanding of the factual basis on which courts have developed their legal arguments. It is argued that since the materials of cases before the ECtHR and the CJEU are often transmitted to national courts of member states for quality protection of confidentiality, it is necessary for them to correctly anonymize the personal data of the parties involved in the case and information that could identify the applicant.

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals for the Fifth Circuit

O contrato temporário na jurisprudência do Supremo Tribunal Federal: da diferenciação entre nulidade e desvirtuamento e seus consectários legais

This article aims to analyze the jurisprudence of the Federal Supreme Court regarding temporary contracts (art. 37, IX, CF/1988), especially with regard to the requirements for its validity and the concepts of “nullity” and “distortion”. The problem chosen for the research was the following: are the decisions given in themes 916 and 551 of the Federal Supreme Court conflicting or complementary? To what extent is it possible to differentiate the nullity of a temporary contract from its distortion and what are the consequences of this declaration? The article focused on the norms on the subject and the jurisprudence of the Federal Supreme Court, as well as other state courts regarding this, in addition to other bibliographic sources, such as, books and scientific articles. The starting point was the hypothesis that the national courts are misinterpreting the jurisprudence of the highest Court in the country, by treating the concepts of nullity and distortion as synonymous, imposing a burden on the public that is greater than what is due in many concrete cases, which is also mentioned in the text. In conclusion, the hypothesis raised is confirmed, in the sense that the themes analyzed are not conflicting, but rather complementary.

Jail Utilization and Court Sentencing: Does Jail Overcrowding Influence State Court Sentencing Decisions?

Drawing upon organizational perspectives and focal concerns theory, this article tests the impacts of jail utilization (i.e. the ratio of jail population: rated capacity) on sentencing practices. Using 18 years of felony sentencing data from Florida and county characteristics, ordinary least squares regression models are estimated to determine whether jail utilization impacts sentencing trends between counties. Latent growth curves assess jail utilization effects within counties over time. Jail utilization is significantly associated with sentencing and this effect is robust across and within counties over time. Across counties the effect is largely non-linear; community-based sanctions are more common in counties that have reached a jail utilization threshold. Jail utilization effects are robust across general and discretionary cases but vary according to local crime rates. The findings suggest that extralegal considerations influence sentencing decisions; i.e. when jail utilization decreases, courts will impose more jail sentences simply because space is available.