Rules Of Substantive Law Research Articles

Research on the legalization of Social Credit System

The relevant creative legislation for the construction of China's Social Credit System is being continuously promulgated and implemented. However, due to the lack of guidance from higher-level laws such as the Constitution and specialized laws, the social credit legal system is facing a dilemma of structural defects. As a means of governance, social credit-related policies and local legislation include too much morally adjusted behavior into the scope of legal adjustment, leading to excessive pursuit of effectiveness of governance results in practice, while ignoring the punishment of dishonesty legitimacy. Based on this, the rule of law of the Social Credit System should create special laws that “incorporate morality into the law” to improve the social credit legal system, and face up to the limitations of social credit as institutional credit, strengthen the legal constraints of Social Credit System construction, and realize “Formal rule of law” and “substantive rule of law”.

Protection of People Living with HIV/AIDS in an Islamic country: Iran

In this paper, the most important instances of fundamental rights of People Living with HIV/AIDS (PLWHA) are explained in the spirit of laws and regulations of the Islamic Republic of Iran, as well as Islamic rules. It should be noted that according to the principle of coherence in the thought of Islamic law, these rights in front of themselves typically depict the duty of the state and society, which are required to protect and guarantee them. Merely guaranteeing citizen’s rights in the form of law, even with special legal protections, can ultimately provide the procedural rule of law for PLWHA; but the real protection of the law goes beyond this formal aspect. In practice, an Islamic government needs to make special executive arrangements to ensure that their rights are upheld so that we can touch the substantive rule of law. Therefore, this paper strives to depict an image of the fundamental rights of PLWHA in the contextual and pragmatic perspective which should not remain merely symbolic in the form of a charter framed on the wall.

Tax procedural proof: problems of theory and practice

The subject of this study is the legal norms contained in legislation, other legal acts, as well as materials of law enforcement practice that determine the specifics of tax procedural evidence. This article also analyzes the experience of legal regulation of the mechanism of tax procedural evidence, examines the gaps in tax legislation directly related to the topic under consideration.The purpose of the study is to identify and analyze the features of evidence in the tax process, to study the application of evidence theory in the activities of tax authorities, to develop new ways, means and simplified procedures for effective proof, as well as to prepare appropriate regulatory changes. The objectives of the study are to identify and analyze the advantages and disadvantages of the current state of the regulatory regulation of the means and procedures of tax procedural proof; to study the distribution of the duty of proof from the position of the presumptions proclaimed in tax legislation, the established grounds for exemption from proof, as well as the blocks of circumstances formed by law enforcement practice that are subject to proof, respectively, by the tax authority and a participant in the tax process controlled by it; formulation of the author 's position on the general rule of burden of proof distribution and proposals for adaptation in the Tax Code of the Russian Federation constructions of grounds for exemption from proof according to the presented concept; allocation of stages of evidentiary activity carried out within the framework of the tax process.Methodology. Within the framework of this article, general scientific methods were applied in the framework of comparative, logical and statistical research and analysis of law enforcement and judicial practice in the field of tax process.The main results. Within the framework of the study, a number of issues related to the chosen topic were considered. First of all, it is necessary to understand that by proving in the tax process, one should consider the procedural activities of authorized participants in the tax process for collecting, researching and evaluating evidence, ensuring the adoption of legitimate and justified procedural decisions on issues that are subject to the regulation of tax legislation. The general subject of proof in the tax process is the circumstances relevant to the decision of the tax authority in the cases provided for by the legislation on taxes and fees, determined by the tax authority based on the substance of the relationship and the positions of its participants in accordance with the applicable rules of substantive law in cases where such circumstances are not defined by the legislation on taxes and fees. For the general the rule for distributing the burden of tax procedural proof is to adopt the following judgment: "Each participant in the relationship regulated by the legislation on taxes and fees, in order to comprehensively and most fully establish the facts relevant to the decision of the tax authority in the cases provided for by the legislation on taxes and fees, must prove the circumstances to which he refers as the basis of his procedural position (claims, objections)."Conclusions. The interests of the state in replenishing the budget should not lead to violations of the rights of an unlimited number of taxpayers. To do this, it is necessary to apply the norms on the presumption of innocence and increased standards for proving an offense committed by a taxpayer in tax disputes. The imposition by the tax authorities of their approach to regulating tax legal relations is going beyond the powers of the tax authorities. The application in practice of the presumption of taxpayers' guilt in committing a tax offense, which is not provided for by law, violates not only the private interests of taxpayers, but also represents an encroachment on public interests, on public order, since obvious injustice is being done.

The Limits within which the Contracting Authority may Proceed with the Forced Execution of the Winning Association in the Public Procurement Procedure

This article deals with the possibility for awarding entities to proceed with the forced execution of all members of an association set up for the performance of public or sectoral procurement contracts provided for by Law 98/2016 and Law 99/2016, in the event that, on the basis of a damage inspection report issued by a judicial public authority, the court definitively grants a judgment in favour of the awarding entity. Unlike commercial companies with legal personality, joint ventures are governed only by contractual clauses and are exempt from any incorporation formalities, as they do not benefit from legal personality. The purpose of the article is to highlight the misinterpretation of substantive law rules when concrete situations arise in which the awarding entity benefits from an enforceable title represented by a final court decision by which it executes all the members of the association although the documents underlying the signature and execution of the works or services contract specify an individual liability.

Про застосування окремих положень Договору про заснування Енергетичного Співтовариства

The article examines the specialities of applying certain provisions of the Treaty establishing the Energy Community. Attention is drawn to the fact that at the current stage, as Ukraine is not a member of the European Court of Justice, EU legal acts should be a direction of the development of the Ukrainian legislation, which will approximate it to its European counterparts. According to the Law of Ukraine «On the Electricity Market», the law enforcement practice of European institutions (the Energy Community and the European Union) is not a source of law in the formal legal sense (similar to the decisions of the European Court of Human Rights), but it must be taken into account by the subjects of power and courts. Attention is drawn to the fact that these decisions should be applied together with the corresponding act of EU legislation when deciding court cases, if the act of EU legislation is subject to application in accordance with the Association Agreement between Ukraine, of the one part, and the European Union, the European Atomic Energy Community and their member states, of the other part. Decisions of the EU Court should be taken into account for understanding the norm of EU law that is implemented (integrated formally or substantively), that is, in law-making activities, as well as for the interpretation of the norm of Ukrainian legislation that is its analogue. The condition for taking into account such decisions by subjects of power in law-making activities, as well as by courts, should be their relevance. The criteria for the relevance of the judicial practice are generally similar in relation to the practice of the European Court of Human Rights and the practice of the EU Court of Justice (first of all, it is the similarity of facts and taking into account the specialties of the national legislation). When resolving disputes, the court must apply the norm of Art. 41 of the Treaty establishing the Energy Community in accordance with the procedure prescribed for the norms of the national legislation in accordance with Art. 19 of the Law of Ukraine «On International Treaties of Ukraine», as well as other norms of the Ukrainian legislation, including the Law «On the Electric Energy Market», the Transmission System Code. Relevant decisions of the Court of Justice of the EU can be used as an additional source for the interpretation of the content of legal norms to be applied by the court. At the same time, according to the rules of procedural law, it cannot currently be claimed that a decision of the Ukrainian court was made with the incorrect application of the rules of substantive law if it does not correspond to the decision of the Court of Justice of the EU.

Legal professional Privilege—what do we make of it in jurisdiction Malta? The anchors: Part 2

Abstract This article is a continuation of Part 1 which appeared in the previous issue of Trusts and Trustees. The concluding note there was that Privilege in Malta is one and unitary, encompassing without distinction litigation Privilege and legal advice Privilege. Part 2 argues that Malta has received various influences over time on Privilege, not least the European Convention on Human Rights and the EU. However, the law on Privilege should never lose sight of the fundamental and defining link between the Maltese Code of Civil Procedure and the traditional Common Law rules on evidence—these should remain, partly at least, a defining anchor of the Maltese Law on Privilege. This article argues that Privilege extends to all materials communicated between counsel and client in the proper course of professional activity. It also reviews areas such as disclosure and Privilege, asks whether Privilege is a substantive rule of law or one of evidence. Other areas considered are loss of Privilege, partial waiver thereof, secondary evidence referred to in otherwise Privileged material and finally inadvertent disclosure. The conclusion is that Privilege is a deep-seated rule of law, procedure and practice of which Advocates and the Judiciary remain the gatekeepers.

К вопросу о правовом статусе и правовом положении юридических лиц – участников производства по делам об административных правонарушениях

The arsenal of methodological means of studying such a legal phenomenon as a legal entity, of course, requires expansion, the search for solid theoretical foundations, the development, first of all, of a universal conceptual apparatus. One of the significant theoretical aspects that are the subject of scientific discussion is the legal status of a legal entity - the subject of administrative tort legal relations. The article substantiates the possibility and practical necessity of differentiating the legal status of a legal entity and its legal status already as a legal entity participating in real procedural relations aimed at the implementation of the relevant substantive rules of law in connection with the emergence of a certain legal fact, was made a conclusion about the legitimacy of the use of the concept of «administrative delinquency» in relation to the legal status of legal entities. In the course of the study, the authors use a combination of the dialectical general scientific method of cognition with the particular scientific ones characteristic of research in the field of jurisprudence: comparative legal, technical legal, formal logical. The novelty of the research lies in the fact that the authors propose a comprehensive interdisciplinary approach to the study of the delineation of the concepts of legal status and legal status of a legal entity brought to administrative responsibility. As a result of the study, the authors formulated proposals aimed at improving the legislation on administrative offenses, showing the importance of differentiating the concepts of «legal status» and «legal status», «subject of proceedings in cases of administrative offenses» and «participant in proceedings in cases of administrative offenses».

Peculiarities of qualification of criminal offenses against movement safety and transport operation: a review of judicial practice.

The article reviews some court decisions, which highlight the key features of the assessment of criminal offenses against traffic safety and transport operation. Typical situations of committing criminal offenses of this type with the analysis of difficulties of qualification and further bringing a person to criminal responsibility are studied. In addition, attention is paid to the differentiation of legal liability, where the means of committing an offense or the subject is a vehicle, as well as highlighted key aspects related to the definition, type and nature of the act. Assessment of criminal offenses against traffic safety and transport operation under art. 286 of the Criminal Code of Ukraine should be based not only on the rules of substantive law, ie the law of Ukraine on criminal liability. Within the framework of criminal proceedings, the employee-practitioner is guided by the rules of the Criminal Procedure Code of Ukraine, which provides for the possibility of changing the assessment of a criminal offense, taking into account the available facts and circumstances. Regarding the existence of certain regulations governing the specifics of assessment and further pre-trial investigation into the commission of a criminal offense against traffic safety and transport operation, today the national justice system has formed judicial practice on this issue. However, it requires some generalization and identification of key points in the qualification of the investigated criminal offenses or further criminal proceedings. The decisive evidence in criminal proceedings concerning criminal offenses against traffic safety and transport operation is the experts’ conclusions from various types of examinations, which are appointed in these proceedings. In particular, auto-technical, auto-commodity, transport-trasological expert studies, which establish important circumstances for establishing the suspect’se guilt or innocence.

Legal Problems of the Concepts Legality, Justification and Justice by Judicial Acts

The article deals with the issues of legality, validity and fairness of judicial acts in civil proceedings. It is concluded that a court decision is legal if it is made with strict observance of the rules of procedural law and in full compliance with the rules of substantive law.

The Value of Justice in Czechoslovak Criminal Law Norms in the 20th Century

The authors focus on the legal regulation of criminal substantive law rules and its development in the 20th century in the territory of Czechoslovakia. Specifically, the paper focuses on finding the value of justice in the substantive law provisions and looking for its value in judicial practice. In the conclusion of the paper, the authors consider the meaning of justice in criminal law rules and compare its value in historical and current criminal codes. Justice is not legally defined as an institution or a principle, and therefore, it is very difficult to seek the value of justice in legal branches. The authors present a new hypothesis that works with all kinds of sources of law, which, in their interconnection and agreement, should provide a test to show the value of justice. The authors work with a specific type of criminal law – post-war retribution criminal law. However, the humanities are not exact as science, so subjective evaluations are always present. The second stage of verification of correctness is identical or very similar to the textual and contextual interpretation of the sources of law. The value of justice is not determined by a numerical scale, so only a comparison of specific cases can give us answers as to whether criminal law has been applied more or less fairly in individual trial proceedings

Reasonable Basis for Media Judicial Supervision Under the Scope of Good Governance of Good Law

Good governance of good law are the substantive rule of law, not only need the law to be good law, but also need the legal governance effect to be good governance. The key to achieve good governance of good law is the strict adherence to law, also need to assist in fair and democratic governance. The philosophical methods of judicial trial under good governance of good law is "Legalism-led Consequentialism Supplement", When there is a legitimacy crisis arising from the second-order reasons (i.e legal rules), it is necessary to use consequentialism to consider the law and other first-order reasons to make judgment. The application of consequentialism brings the judgment of media supervision and professional justice to a limited extent consistency, and the judicial timely response to the needs of social concerns, to a certain extent, it increases the smoothness of judicial supervision, but the two are naturally in conflict. The reasonable judicial supervision of media should be based on the requirement of tool rationality and value rationality in order to ensure the justice.

Św. Tomasza z Akwinu koncepcja wspólnoty politycznej - o potrzebie władzy praworządnej

Celem artykułu jest zaprezentowanie dorobku św. Tomasza z Akwinu dotyczącego koncepcji wspólnoty politycznej, zwłaszcza w zakresie odnoszącym się do zagadnienia władzy praworządnej. Bazując w pewnym zakresie na myśli Arystotelesa oraz na Policraticusie Jana z Salisbury, Akwinata rozwija własną, oryginalną koncepcję wspólnoty politycznej, zakorzenioną w chrześcijańskiej antropologii. Wspólnota polityczna jest więc nie tylko naturalna, ale również zajmuje ważkie miejsce w Bożym planie zbawienia, nabierając – poprzez swój cel, jakim jest dobro wspólne – wymiaru eschatologicznego. Nieprzemijającą wartość ma również twórczość Akwinaty dotycząca władzy praworządnej, która jest antycypacją późniejszej koncepcji praworządności materialnej, a zatem determinowanej nie tylko formą stanowienia prawa (jego legalnością), ale również treścią norm prawnych.

Wartości preferowane przez racjonalnego prawodawcę w prawie prywatnym międzynarodowym

Normy kolizyjne prawa prywatnego międzynarodowego cechuje odmienna budowa od norm prawa merytorycznego (materialnego), co uwarunkowane jest celem, któremu służą. W litera-turze wskazuje się, że normy kolizyjne prawa prywatnego międzynarodowego mają charakter norm technicznych, w związku z tym pojawia się pytanie, są one nośnikiem wartości, analogicznie jak normy prawa materialnego. Odpowiedź twierdząca wymaga dalszego rozstrzygnięcia, a mianowicie urzeczywistnieniu jakich wartości normy te służą, a także które wartości powinny być szczególnie preferowane przez racjonalnego prawodawcę. Celem niniejszego opracowania jest udzielenie od-powiedzi na pytanie, czy i jakie wartości, a także w jaki sposób urzeczywistniają normy kolizyjne prawa prywatnego międzynarodowego tworzone przez racjonalnego prawodawcę.

EVIDENCE LAW AS THE ELEMENT OF THE LEGAL SYSTEM

In the science of civil procedural law, there is considerable interest in the study of evidence law. In some cases, the evidence law is considered purely in the sense of the subjective right to prove the circumstances of the case but most researchers have attempted to determine the place of evidence law in the general system of law. However, the conclusionson this point are very different; the evidence law is proposed to be considered as both a legal institute, and as a branch of law, and as an independent formation. To characterize evidence law, it is necessary to determine what legal rules are parts of it, how they are interconnected, and how they are involved in the proving. This will provide a basis for answering the question of the place of evidence law in the system of law.Evidence law is, first and foremost, rules of procedural law which establish the procedure for proving at all stages of it, determine the basic requirements under which procedural actions aimed at establishing the circumstances of a case must be made. The connection between the evidence law and the procedural law is obvious but proving in civil cases is directly influenced by substantive law.Rules of substantive law are the basis for the formation of the subjectmatter of proof. From these rules follows the main content of the evidentiary activity in the case and the relevance of evidence submitted to confirm the claims and objections of the participants in the case. Providing the form of committing certain transactions, the procedure for issuing various kinds of documents, the competence of different bodiesto make certain decisions, the substantive law rules help to determine the admissibility of the means of proof. They also establish legal presumptions that affect the distribution of the circumstances to be proven between the parties to the case, the legal status of judicial experts, the procedure for conducting judicial examinations and the requirements for expert opinions. Therefore, the evidentiary activity in civil cases cannot be carried out with the application of the rules of civil procedural law only and requires the application of the rules of substantive law.Despite this, unlike procedural law, substantive law does not contain any rule which is applicable in every civil case. The subject-matter of the case, the relevance of the evidence, and the substantive element of its admissibility are largely derived from substantive law, in each case being quite different legal provisions. That is, while some rules of procedural law, in particular, Art. 76-81, 83, 89 of the CPC are applicable in proving in all civil cases, there is no universal rule of substantive law whichwould be involved in proving in every case without exception. Rules of procedural law regulate proving directly by establishing the rights and obligations of the subjects of proving, specific rules and procedures for the submission, investigation and evaluation of evidence. The rules of substantive law are included in proving selectively, their action is always individual and contextual in nature and limited to the resolution ofindividual issues. Therefore, it seems that the effect of the rules of substantive and procedural law in proving is as follows: the order of proving is governed by the rules of procedural law, and substantive law creates the preconditions for proving.The rules of procedural and substantive law in evidence law are combined in a complex, rather than systematic way, since the set of these rules is not characterized by the construction inherent in the system. The set of these rules is not peculiar to the unity of the object and method of legal regulation, commonality in the use of the same institutions and reciprocity of influence, so evidence law does not belong to any of theelements of the system of law. This is a legal phenomenon, an independent complex formation which is based on the rules of procedural law and is characterized by a special order of application of substantive law.

Про деякі практичні аспекти кримінологічної характеристики злочинів, вчинених у сфері виконання покарань України

У статті з’ясовано сутність і зміст кримінологічної характеристики злочинів, які мають місце в органах та установах виконання покарань, а також доведено їх практичну значущість для сфери виконання покарань та запобігання рецидивної злочинності в цілому в Україні.

The Rule of Law and the Human Rights of Women

It is no wonder that there are still some vulnerable groups in society such as women even in the modern era of the rule of law. Even the vulnerability of women gets worse in some areas of law as well as in reality.The reason for this is the ideal of justice and the conception of the rule of law have not been fully figured out. As mentioned in Aristotle and Rawls, distributive which deals with proportionate aspects of return should be considered as well as rectificatory justice. Okin, Cornell, and Butler’s arguments are also in line with distributive justice.On the rule of law, modern legal scholars, including Fuller, Raz, and Tamanaha have demonstrated how much valuable the rule of law is in every aspect of law and society. The value of law was especially well presented in three themes of the rule of law, suggested by Tamanaha. But the rule of law still has limitations as seem in Tamanaha and Raz.Probably, the limitations of the rule of law could be resolved within the ideal of justice and substantial rule of law. Because the conception and application of the formal rule of law have some limitations despite the valuable nature of the formal rule of law, as seen in Tamanaha’s arguments, Cornell, and Butler, it should be remandedIn this way, the human rights of women, especially in sexual harassment and patriarchy in family law could be properly resolved in law and society even though it might take time.In case of sexual harassment, the law on sexual harassment could contribute in to eliminating the problem through the formal rule of law. But nevertheless the underlying serious problem of sexual harassment, happening everyday life of people, could find a proper solution through the substantive rule of law and the ideal of distributive justice.In case of surname, the amended provision of family law contributed to reducing patriarchal character of the law, but the law should consider the matter more substantially to approach the legal provision on surname because the law on surname will not solve the problem, despite contribution of legal amendment, because of embedded patriarchy in society and law in general.Therefore, the rule of law, both from formal perspective and a substantial perspective should be considered together to enhance the human rights of women in vulnerable areas of law and society.

ПРАВОВЫЕ ОСНОВЫ НЮРНБЕРГСКОГО ПРОЦЕССА: НОРМЫ И ИСТОЧНИКИ ПРАВА

The article is devoted to the issue of procedural and substantive rules of law, on the basis of which the International Military Tribunal was created and conducted its work over the main functionaries of the Nazi regime in Germany. The author explains the legal foundations of the Nuremberg tribunal's activities from the point of view of the law sources (forms) doctrine, and indicates the main sources and their role in the process of preparing the legal framework for the trial of war criminals. The author studied the main normative agreements drawn up by the countries of the anti-Hitler coalition for the organization of the trial of the fascist regime functionaries in Germanу, and examined the acts relating to the establishment of a military tribunal and determining the order of its work. As a special source underlying the conviction, the generally recognized principles of law are highlighted: humanism, moderation of repression, respect for human rights, etc. The author concludes that the procedural side of the legal support for the activities of the Nuremberg Tribunal had a solid basis in the form of a number of normative treaties concluded by authorized representatives of the winning countries, and the charges were based on an extensive layer of legal rules, denounced in the form of international treaties and recognized by the world community principles of law. At the same time, a distinctive feature of the sources underlying the charges was the lack of unified and universally recognized sanctions, which marked an obvious gap in international law, filled by the granting broad powers to the international military tribunal on the nature of possible defendants punishment. According to the author`s opinion, the importance of the Nuremberg tribunal, as a precedent that marked the beginning of the formation of institutions for bringing war criminals to justice, lies in the creation of a mechanism for the application of international criminal law sanctions.

The Repair of Civil Developments with Environmental Compensation: An Analysis in Brazilian the Court of Superior Based on Special Appeal 896.863

This article analyzes the Special Appeal (Resp) No 896863-DF in the Superior Court of Justice (STJ) defines the non-occurrence of bis in idem when even with the implementation of an environmental compensation the degrading is sentenced to repair civilly damage caused by your enterprise. This analysis will unfold in the definition of environmental responsibility in the Brazilian law and forms of civil damages the environment. It will be observed that the environmental compensation has the distinct nature of civil damages, each institute applied due to pipelining by facts that have no connection. Through deductive methodology with theoretical and documentary research, verify that the rules of substantive law adequately serve the purpose of civil remedies and do not have the same purpose of environmental compensation. However, it is still addressed the deficiency of judicial protection due to the lack of specific procedures and consistent to environmental protection, especially in relation to the liquidation of environmental damage.

Foreseeability of legal grounds for disciplinary liability of judges: a general theoretical aspect

The purpose of introducing disciplinary measures against judges is to ensure that the judges are competent, appropriate, and that they have public trust. In view of their functional role, the means of disciplinary liability may interfere with the sphere of judicial independence, sometimes legitimately, sometimes not. The legal challenge is how to strike a fair balance between these two principles – judicial accountability and independence – for the benefit of the public. This issue arises, first of all, in the context of substantive law. The matter can be examined both at the level of drafting legal rules and at the level of their application.As regards drafting rules of substantive law by describing the grounds for disciplinary liability of judge, they should provide a certainty for the public on the question of what judicial misconduct is. This function of substantive law is translated into the requirement of legal foreseeability: there is a need for a precision and accuracy in substantive rules describing disciplinary misconduct. A certain degree of generalization is necessary if we want the legal rule remains applicable to various similar facts. This has been acknowledged in the soft law of the Council of Europe as well as in the case-law of the European Court of Human Rights. The latter has stated that the level of precision required of domestic legislation depends to a considerable degree on the content of the considered instrument, the field it is designed to cover, and the number and status of those to whom it is addressed. However, unjustified vagueness of legal rules may produce the risks of arbitrary interpretation and abuse by disciplinary authority and threaten judicial independence. Therefore, on the law-drafting level, it is appropriate to enumerate an exhaustive list of specific disciplinary offences, limiting as much as possible the use of general and vague terms. The practice of giving a general definition with vague and ambiguous terms, which still exists in many countries, should be avoided. In any event, the question of how to ensure the legal foreseeability on the law-drafting level cannot be examined in isolation from the level of law enforcement. At this second level, the further foreseeability may be attained by means of adjudicatory interpretation which should be restrictive, consistent and sufficient. Cumulatively, keeping in line with the above requirements will ensure an appropriate degree of legal certainty in the area of judicial discipline and its harmonious interaction with the principle of judicial independence.Article received 18.02.2019

The End is Near For the Per Se Rule in Criminal Sherman Act Cases

What do “progressive” Supreme Court Justice Sonia Sotomayor and “textualist” Justice Neil Gorsuch have in common? To quote one commentator, “they are on a mission to restore criminal defendants’ constitutional rights:” In November, the two justices teamed up to champion Sixth Amendment safeguards against notoriously flawed forensic analysis. Weeks later, they came together to attack policing for profit, endorsing Eighth Amendment protections against civil forfeiture. And on Monday, the two joined forces once again to stick up for the right to a trial by jury when the government seeks to impose crippling fines in the form of criminal restitution. The per se jury instruction in criminal Sherman Act trials will also fall. In a per se case, the court is the initial fact-finder, deciding whether the agreement violated the Sherman Act. If the court determines the indictment alleges a per se violation the jury then only decides whether the charged agreement existed and whether the defendant joined the agreement. Justices Gorsuch and Sotomayor will extend their “right to a jury” advocacy, and gather a majority to hold that: 1) the per se rule is a substantive rule of law, which only Congress, not the Supreme Court can create; and 2) this substantive per se rule improperly takes away the defendant’s Sixth Amendment right to have the jury be the fact finder regarding whether the agreement charged in a Sherman Act indictment actually was a restraint of trade.