Striking Down Research Articles

Test-Optional Policies: Impacts to Date and Recommendations for Equity in Admissions

Many institutions were forced by the COVID-19 pandemic to change admissions policies as a response to logistical challenges around testing. However, even as logistical challenges have resolved, pandemic-era changes to higher education testing policies which reduced or eliminated testing requirements have remained in place in many schools. Now, research evidence is beginning to emerge which looks at the effects that reductions to testing requirements are having on undergraduate admissions, making it possible to determine whether those policies are meeting their goals. This review examines the empirical evidence that has been gathered to date to identify trends in the effects of these testing policies and to make recommendations for increasing equity in admissions that institutions may wish to consider as they grapple with another change in higher education admissions: the striking down of race-conscious admissions. We find that test-optional admissions do not benefit equity in all cases, but that some contexts show more promise than others.

Judicial Independence and Reformation of the Collegium System: Evaluating the Njac Judgement and Foreign Judicial Appointment Systems

The National Judicial Appointments Commission, introduced by the 99th constitutional amendment, was struck down by the Supreme Court of India while the collegium system was upheld. The basic structure doctrine of the independence of the judiciary was contested to be violated by the amendment, and the striking down of the amendment ensured that judicial supremacy was protected. Yet, India is the only country where the spirit of democracy is of utmost importance. Still, the judges are appointed by fellow judges in the current practice of the collegium system. In this research article, the researcher will evaluate the dissenting view of Justice Chelameswar in the NJAC judgement and tackle the issue of the need for reformation of the collegium system to make it more transparent and democratic. The article will also deal with a comparative analysis of the Indian judicial appointment setup and the setup of judicial appointments in foreign countries like the USA, UK, France, Australia and Canada to formulate recommendations for reformation in the Indian setup.

Remarks by Karuna Nundy

Thank you, Can. Since 1997, the Supreme Court has taken the approach that where domestic law is silent, international law should fill the lacuna. In constitutional cases, we argue international law. We argue comparative law. But what I have found is that it is constitutional law that mostly occupies the field. One of the cases I argued along with other counsel in 2005 is still the definitive case on online free speech regarding the striking down of a provision of the Information Technology Act that governs the internet. The actual words of the law are quite intriguing—any language that was online, defined as a text message or something on a website, that was annoying or inconvenient “could lead to a three-year prison sentence.”

Supreme Court Justices Seem Wary of Striking Down Affordable Care Act

Supreme Court Justices Seem Wary of Striking Down Affordable Care Act

Social Media, Violence and the Law: ’Objectionable Material’ and the Changing Countours of Hate Speech Regulation in India

With the advent of the internet and increasing circulation of hate speech, and material that has been linked to public order disturbances, there has been a shift in the legal discourse around hate speech. What has emerged, especially post the striking down of section 66A of the Information Technology Act, are categories such as ‘objectionable’, ‘provocative’ content. The focus has shifted from the content itself, what it says, and the intention of the author, to being able to pre-empt the circulation of such material. Law is increasingly invoked to prevent speech (through prior restraint) rather than post facto investigation and prosecutions. This in turn has given rise to a range of institutional mechanisms such as monitoring labs that are now part of policing practice. Additionally, civil society organizations are now collaborating with police to help trigger mechanisms to take content off internet platforms. Increasingly it is through keywords and algorithmic searches that the category of hate speech has been defined rather than traditional legal doctrine. In the words of Lawrence Lessig, code plays the role of law, and the architecture of the internet becomes policy. This paper will examine the issues outlined above relying heavily on a series of interviews with lawyers, policy analysts, journalists, academics, civil society activists, and police personnel conducted in Delhi, Bengaluru, Mumbai and Pune.

Testing for the Effect of Campaign Expenditure Limits

Testing for the Effect of Campaign Expenditure Limits

Rep v. Chimkango: The Application of Kafantayeni to Pre-resentencing Appeals Against the Mandatory Death Penalty in Malawi

Despite confirming in several decisions that the striking down of the mandatory death penalty in Kafantayeni v. Attorney General entitled all offenders sentenced under the mandatory death penalty regime to a fresh hearing on sentence, the Malawi Supreme Court of Appeal (MSCA) entertained appeals against the original (now unconstitutional) mandatory death sentences in the absence of resentencing hearings in the High Court. The question that arose in Rep v. Chimkango was whether the High Court has the jurisdiction to hold a resentencing hearing in respect of a death sentence which had already been confirmed by the MSCA on appeal. The High Court, considering itself bound by judicial precedent and wary of running afoul of the doctrine by ‘faulting or refusing to be bound by’ the MSCA's decision, remitted the case to the MSCA for directions or resentencing. This article explores the High Court's decision and the status of appeal decisions against mandatory death sentences before the resentencing hearings. It argues that by entertaining these appeals, the MSCA dubiously assumed an original criminal jurisdiction mode within the confines of appellate principles instead of dismissing them as premature and directing the appellants to pursue a resentencing hearing in the High Court. The article also faults the decision of the High Court for not affording the accused a resentencing hearing.

Beyond the rhetoric of international human rights standards in the struggle to decriminalise homosexual conduct in Uganda

In 2014, Uganda’s Constitutional Court struck down the problematic Anti-Homosexuality Act. (AHA). However, since the decision of the court was based on procedural rather than on substantive grounds, the AHA may very well be reintroduced, or, other anti-homosexuality laws in place can still be relied on to criminalise consensual homosexual conduct. The ideal solution is to have all the anti-homosexuality laws struck down in light of Uganda’s international human rights ob• ligations. However, although a number of international human rights instruments lend impetus to the cause of decriminalisation in Uganda; these international standards have thus far not fully persuaded Uganda to have these discriminatory laws struck down. In this article, I argue that whereas arguments based on Uganda’s international and constitutional obligations form a good foundation for reform, these standards cannot of themselves form a complete solution to the problem. Drawing on the various actors that were at the fore in the struggle towards the striking down of the AHA, I argue that translating the rights of lesbian, gay and bisexual and transgender (LGBT) people into a reality will require conscious efforts from a number of actors including the judiciary, international and national human rights defenders and faith-based organisations. I identify some of the mistakes made by the foregoing actors in advocating for the striking down of the AHA, and how these mistakes should be addressed if the cause of decriminalisation is to be effectively advanced. Although Uganda is placed at the heart of the discussion, the conclusions drawn are relevant to other African countries battling with this subject.

Beyond the rhetoric of international human rights standards in the struggle to decriminalise homosexual conduct in Uganda

In 2014, Uganda’s Constitutional Court struck down the problematic Anti-Homosexuality Act (AHA). However, since the decision of the court was based on procedural rather than on substantive grounds, the AHA may very well be reintroduced, or, other anti-homosexuality laws in place can still be relied on to criminalise consensual homosexual conduct. The ideal solution is to have all the anti-homosexuality laws struck down in light of Uganda’s international human rights obligations. However, although a number of international human rights instruments lend impetus to the cause of decriminalisation in Uganda; these international standards have thus far not fully persuaded Uganda to have these discriminatory laws struck down. In this article, I argue that whereas arguments based on Uganda’s international and constitutional obligations form a good foundation for reform, these standards cannot of themselves form a complete solution to the prob- lem. Drawing on the various actors that were at the fore in the struggle towards the striking down of the AHA, I argue that translating the rights of lesbian, gay and bisexual and transgender (LGBT) people into a reality will require conscious efforts from a number of actors including the judiciary, international and national human rights defenders and faith-based organisations. I identify some of the mistakes made by the foregoing actors in advocating for the striking down of the AHA, and how these mistakes should be addressed if the cause of decriminalisation is to be effectively advanced. Although Uganda is placed at the heart of the discussion, the conclusions drawn are relevant to other African countries battling with this subject. Key words: Uganda, international human rights standards, Anti-Homosexuality Act, decriminalisation

Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses

Son of Sam laws aim to compensate victims of crime by awarding them income earned when criminals who injured them sell stories of their illegal exploits to media. prevalence of these statutes, which forty-three states and federal government have enacted, reflects overwhelming popular approval of their underlying policy: the victim must be more important than criminal. The broad reach of Son of Sam provisions, however, raises question whether this well-meant social legislation impermissibly burdens constitutionally protected rights of free expression.In this Article, Garrett Epps relates tale of New York mobster Henry Hill, writing of his autobiographical book Wiseguy, and litigation it spawned. Hill saga illustrates conflict between preventing criminals from profiting at expense of their victims and protecting First Amendment rights of criminal authors. Mr. Epps first surveys breadth of Son of Sam statutes, identifying complex issues of free speech and press they create. He then recounts history of Wiseguy case, pointing out confused approaches that state and lower federal courts have taken when analyzing constitutionality of Son of Sam statutes. Mr. Epps resolves this confusion by noting that Son of Sam laws are targeted at content of expressive activity, and therefore are subject to strict-scrutiny analysis required by Supreme Court precedent. He asserts that although sweeping Son of Sam statutes further a legitimate governmental interest in compensating victims of crime, they are not narrowly tailored to achieve that goal because they do not attach to a criminal's assets generally, but only to proceeds from his literary ventures. Mr. Epps argues further that, even if Son of Sam laws are not unconstitutional per se, overbreadth of many such statutes violates Speech and Press Clauses. In particular, he contends that sequestering proceeds of publishers and others who contract with criminal authors constitutes both a prior restraint and a licensing of publishers in violation of First Amendment. Mr. Epps concludes that rights of even criminal authors are firmly rooted in Constitution. He thus calls for a wising up with regard to constitutional issues raised by Wiseguy case and for striking down of Son of Sam laws as unjustifiable restrictions on free speech and a free press.

The Unexpected Effect of Tort Reform: Do Caps Delay Settlements?

Conventional economic analysis of tort reform suggests that caps on non-economic damages reduce the time to settlement and consequently save litigation expenses. What the conventional analysis ignores is the real life fact that many of the caps are struck down by state supreme courts within a few years of enactment. We develop a simple screening and asymmetric information model which accounts for parties' symmetrical expectations for a striking down of the reform. The model predicts that that in states in which the expectation of a strike down is small (we call them states with solid caps) the time to settlement decreases, whereas in states in which that expectation is high (we call them states with non-solid caps) the time to settlement increases. Further, the model predicts that caps on non-economic damages not only tend to increase the fraction of cases that settle (which reduces litigation expenses) but also tend to increase the time required to resolve the conflict (which increases litigation expenses). We show that in states with solid caps the first effect dominates and litigation expenses would decrease, whereas in states with non-solid caps the second effect may dominate, in which case litigation expenses would increase. In addition, the model predicts that while plaintiff's with high claims always receive lower recoveries in states with caps, plaintiffs with low claims may receive lower or higher recoveries. Using almost 200,000 medical malpractice settlement payments between 1991 and 2005 we show that many of our model's predictions are confirmed in practice. Importantly, we show that cases which were subject to solid caps were resolved faster (between .59 to 1.74 years faster). In contrast, cases subject to non solid caps were resolved 1/3 of a year more slowly compared to states with no caps Thus, caps seem to hit plaintiffs either by reducing the recoveries of plaintiffs with large claims, if caps are not struck-down, or by causing plaintiffs to get their damages at a later date, if caps are struck down.

The Marketisation of European Corporate Control: A Critical Political Economy Perspective

We are entering into a new phase in EU corporate governance. More than ever, our action plan must be focused and based on a solid assessment of actual needs of market players and investors. 1 As Ch...

Contract Rights and Civil Rights

of contract or of government of private employment relationships? Have court decisions striking down of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers.1 Professor David E. Bernstein2 challenges the view that abrogation of freedom of contract has consistently benefited African Americans by examining government of the workplace during the period from Reconstruction to the New Deal. Bernstein argues that for most of the period after Reconstruction and before the modern civil rights era African Americans were better off with free labor markets than with federal regulation (p. 105). Bernstein further argues that African Americans benefited from court decisions striking down some of these labor regulations. With this latter argument, Bernstein

WTO Decision Striking Down U. S. Revenue Act of 1916

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Why does medical care cost so much?

Abstract The major element in medical-care costs is manpower. The production of more doctors and allied personnel is often promoted as an effective way of reducing unit costs and improving distribution. Expansion of manpower, however, under the present delivery and financing systems would not lower price, improve distribution or have any measurable impact on the health of the population. Analysis of the present health system, furthermore, shows that it has relatively little to do with health and that it is tangential to many health problems. More necessary than mere increases in manpower are broader concepts of health services, clearly enunciated health goals, more consumer involvement in policy formulation, greater exploitation of the process of organization, more sophisticated management, the striking down of various artificial impediments to change and more imaginative methods of payment.