Supreme Court Cases Research Articles

Ann Hopkins and PwC: Critically Analyzing Culture, Leadership, Policies, and Reporting for Diversity and Inclusion

ABSTRACTLarge public accounting firms are currently prioritizing diversity and inclusion and making commitments to increased transparency by publishing diversity, equity, and inclusion reports. This case explores PwC’s self-described diversity and inclusion journey by juxtaposing the firm’s first publicly released diversity and inclusion report with the decades-earlier experience of Ann Hopkins, who became a partner as the result of a landmark Supreme Court case. This approach provides a longitudinal perspective on diversity and inclusion and facilitates analysis of the roles of organizational policies/procedures, organizational culture, and leadership in creating a more inclusive organization. The case presents an opportunity to analyze PwC’s published diversity data and explore the challenges firms face when trying to increase diversity and develop an inclusive culture.

An intolerable burden: Racist territoriality in theUnited StatesSupreme Court's Insular Cases

AbstractThe Insular Cases are a set of early twentieth‐century US Supreme Court cases establishing the legal relationship between the United States and its territorial acquisitions. The Insular Cases have received limited scholarly attention in geography, despite their integral role in continuing to deny full constitutional protections to over 3.5 million American citizens and nationals. Informed by conceptualisations of territory as both process and political technology, political geography offers a critical lens through which to interpret the spatial implications of the Insular Cases. This article conducts a discourse analysis of the Insular Cases, tracing the US Supreme Court's creation of incorporated and unincorporated territorial statuses as they are positioned within contemporaneous racist logic and international norms. I argue that, by inventing differentiated categories of territory, the Insular Cases sought to spatially accommodate white supremacist imaginaries. This paper advances political geography by centring the judicial production of American territorial categories, and adds a geographic perspective to existing literature that interrogates the white supremacist, imperialist source of territorial status today.

Swiss estates and (offshore) trusts: information gathering—recent Swiss case law

Abstract Trustees, foundations, banks, asset managers or tax advisors are often confronted with information requests from heirs of a Swiss estate. In this article, the author provides an overview of the heirs’ rights to information under Swiss contract law and Swiss succession law. She then focuses on a recent decision of the Swiss Federal Supreme Court (case 5A_30/2020), which addresses a claim for information by an executor against a financial institution in possession of trust information. The Swiss Supreme Court clarified in this decision on which basis an heir or an executor of a Swiss estate may lodge an information claim against a Swiss bank with regard to trust accounts or similar financial institutions holding financial information, of which the deceased was not the legal owner but only the beneficial owner.

Clinical (In)Efficiency in the Prediction of Dangerous Behavior

The prediction of dangerous and/or violent behavior is particularly important to the conduct of the U.S. criminal justice system when it makes decisions about restrictions of personal freedom, such as preventive detention, forensic commitment, parole, and in some states such as Texas, when to permit an execution to proceed of an individual found guilty of a capital crime. This article discusses the prediction of dangerous behavior both through clinical judgment and actuarial assessment. The general conclusion drawn is that for both clinical and actuarial prediction of dangerous behavior, we are far from a level of accuracy that could justify routine use. To support this later negative assessment, two topic areas are emphasized: (1) the MacArthur Study of Mental Disorder and Violence, including the actuarial instrument developed as part of this project (the Classification of Violence Risk), along with all the data collected that helped develop the instrument; and (2) the U.S. Supreme Court case of Barefoot v. Estelle (1983) and the American Psychiatric Association “friend of the court” brief on the (in)accuracy of clinical prediction for the commission of future violence. Although now three decades old, Barefoot v. Estelle is still the controlling Supreme Court opinion regarding the prediction of future dangerous behavior and the imposition of the death penalty in states, such as Texas; for example, see Coble v. Texas (2011) and the Supreme Court denial of certiorari in that case.

Toward Self-Determination in the U.S. Territories: The Restorative Justice Implications of Rejecting the Insular Cases

Conservatives and liberals alike are increasingly calling for condemnation of the Insular Cases—a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases. For many, rejecting the Insular Cases is a long-overdue reckoning for U.S. colonialism. Nonetheless, some representatives and scholars from the U.S. territories have raised concerns about potential implications for existing local laws in the territories. Many of these local laws protect Indigenous territorial peoples from further colonial harms. If the proposed bill or Supreme Court’s overruling of the cases functioned to extend the U.S. Constitution in full to the territories, these laws may be found invalid under current constitutional jurisprudence. This Article employs a contextual framework for Indigenous peoples to explore the nuanced restorative-justice implications of rejecting the Insular Cases. It emphasizes the varying perspectives of Indigenous peoples of the present-day U.S. territories, who would be most impacted by the measure. Finally, flowing from this restorative justice framework, this Article demands that any resolution to the Insular Cases forward the human rights principle of self-determination for Indigenous peoples—not mere equality.

How Gay Is Your Cake?

This article examines the concept of integrity in scholarly debate on religious accommodation. There is a scholarly consensus on the value of integrity as manifesting one’s commitments (‘MM integrity’) as a way of approaching accommodation disputes, but the article argues that MM integrity is often at stake on both sides of a legal dispute. It defends a divergent view of integrity where it consists in a person’s responsible exercise of her moral and epistemic capacities in seeking to arrive at well-founded commitments (‘MR integrity’). It’s argued that MR integrity is in—sometimes productive—tension with MM integrity. These claims are illustrated by examining two recent Supreme Court cases, from the US and the UK, both of which involve bakeries accused of discriminating against gay customers

"Hugo Will Pull My Hair Out": Justice Black and Mandatory Arbitration on the Warren Court

"Hugo Will Pull My Hair Out":Justice Black and Mandatory Arbitration on the Warren Court Theodore Salem-Mackall (bio) Call arbitration what you want, but do not call it uncontroversial. Early common-law courts refused to enforce contractual agreements to arbitrate claims, holding that parties' could not "oust" courts of their jurisdiction.1 Early American courts adopted this "ouster doctrine," and treated arbitration agreements as "revocable at will."2 Their skepticism, along with a dollop of private sector lobbying, lead to the 1925 passage of the Federal Arbitration Act. The FAA made agreements to arbitrate "as enforceable as other contracts" in federal court.3At the time of the FAA's passage, concerns existed that large corporate interests would use mandatory arbitration clauses contained in form contracts to frustrate worthy claims. The FAA's congressional advocates intended for the bill to have a narrow scope in order to forestall this.4 Yet a few progressive members of Congress were not relieved by such promises. Among them was a young Alabama senator who, though he would not actually join Congress until a year after the FAA's passage, opposed expanding the scope of mandatory arbitration throughout his life: Hugo Lafayette Black. Justice Black, who served on the Court from 1937–1971, is best known for his monumental decisions on school desegregation, freedom of the press, and procedural protections for criminal defendants.5 What he is less known for is his status as one of the Supreme Court's foremost critics of mandatory arbitration. From 1961–67, Black dissented in six cases enforcing a mandatory arbitration clause contained in a contract or collective bargaining agreement.6 His dissents often argued that strict enforcement of arbitration clauses came at the expense of a party's constitutional right to their "day in court."7 The early Warren Court shared Black's concerns. In 1953, the Court held in Wilko v. Swan that the right to bring Securities Act claims in [End Page 54] federal court could not be waived through a form contract containing an arbitration agreement.8 Yet this hostility did not last. In 1967, a very different Warren Court decided Prima Paint v. Flood & Conklin.9 Prima established that the Federal Arbitration Act made arbitration agreements "valid, irrevocable and enforceable" in federal court,10 and superseded any contrary state arbitration rules in diversity cases.11 The decision implicitly overruled a 1956 Supreme Court holding that the Federal Arbitration Act was a procedural statute that could "affect the rule of decision," and could violate Erie R. Co. v. Tompkins if applied to override contrary state law. Prima Paint also made arbitration clauses "severable" from the rest of contracts, allowing arbitrators to review "fraud in inducement" defenses to breach claims rather than courts.12 Prima marked the first in a long line of Supreme Court cases that gradually established modern "liberal enforcement" of arbitration clauses.13 Justice Black opposed every aspect of the case. In a dissent longer than the opinion, he described it as a "statutory mutilation."14 Hugo Black and the Federal Arbitration Act Black's skepticism of arbitration stemmed from his wariness of corporate power and deep belief in each person's right to a fair "day in court." Throughout his life, Black displayed a deep respect for the right to fair trials decided by impartial courts. He began his career as a Birmingham trial lawyer. This experience left him with a "devout belief" in the jury system, and in his eventual political career he pushed for stronger procedural safeguards in trial courts. To Black, only procedures which ensured fundamental fairness could allow the judiciary to achieve just outcomes and maintain its legitimacy.15 Black's political career was shaped by the Great Depression. The traumatic experience of watching Alabama residents beg for food pushed him to support the New Deal's efforts to regulate capitalism. As a Senator from 1927 to 1937, this support brought him into conflict with a range of "high-powered, deceptive, telegram-fixing, letter-framing, Washingtonvisiting [lobbyists]."16 Black sparred with special interests over his attempts to provide municipal power to impoverished Alabama towns.17 He watched them push for exemptions to his Black-Connery bill...

APA Amicus Cites Safety, Effectiveness of ECT in California Supreme Court Case

APA Amicus Cites Safety, Effectiveness of ECT in California Supreme Court Case

Review of Supreme Court Case Law for Dismissal

Review of Supreme Court Case Law for Dismissal

법원의 인권합치적 법해석에 관하여

Supreme Court Full Bench Decision 2019Do2037 on April 21 2022 dealt with statutory interpretation of Military Criminal Act Article 92-6 which states that a person who commits an indecent act such as anal intercourse with any military personnel shall be punished by imprisonment with labor for not more than 2 years. The court overruled it’s prior ruling by declaring that the Article shall not be construed to include acts taking place in private places with mutual consent. It is of utmost importance to note that this case was decided against the background of Constitutional Court Decision 2012Hun-Ba258, July 28 2016 which held that ‘an indecent act’ of the Article is not void for vagueness and does not violate complaint’s right to sexual self determination, right to privacy, and personal liberty. Aforementioned Supreme Court Case provides a valuable opportunity to look into how the court should consider Human Rights in statutory interpretation, in other words, what the structure and function of Human Rights conforming interpretation consists of. This study suggests that Human Rights conforming interpretation is an interpretative principle that can be derived from requirements of Constitution conforming interpretation(verfassungskonforme Gesetzesauslegung) and respect for international law as provided by Artcle 6 (1) of the Constitution. Understood as an interpretative mandate guided by the fundamental rights and international human rights norms, it requires that the meaning given by the mandate should be preferred even if the initial meaning without consideration of the mandate is not identical with the former. As such, it can be characterized as micro-level, as well as weak-form of judicial review(as formulated by Mark Tushnet). The determining factors in Human Rights conforming interpretation can be summarized as the following: 1) whether multiple interpretations can be legitimately presented within the boundaries of the statutory language, 2) what is the nature of the doubt regarding rights violation, and 3) when such interpretation should be adopted in relation to the referral to the Constitutional Court. The Supreme Court Decision provides multiple opinions addressing these issues. The dissenting opinion differed from other opinions in stating that there are no multiple interpretations possible within the boundaries of the given statutory text. The court’s opinion and the separate opinions 1, 2 all agreed that other possible interpretations were available but disagreed on what those versions actually were. The right to sexual self determination and equal treatment violations were well argued by the court’s opinion, but it would be more adequate to consider it to be an establishment of legitimate doubt on rights violation rather than the final judgment as the Constitutional Court would present its rulings. Human Rights conforming interpretation requires a disciplined sense of interpretive practice as well as an understanding that statutory interpretations operate in a sphere closely related to the goals of respect, protection and fulfillment of Human Rights. Provided that these conditions are met, it might be able to secure a middle ground standing inbetween democratic legislative process and strong form constitutional review.

In re Anastaplo Revisited - A Half Century Later

A sitting US Federal Judge re-examines the 50 year old supreme court case In Re Anastaplo.

Voting Rights: Justice Alito’s False, Partisan Facts

In October 2022, during oral arguments in a US Supreme Court case concerning reapportionment, Justice Samuel Alito suggested from the bench that racial bloc voting in Alabama is a partisan, ideological difference, unrelated to race. Steve Suitts reviews this voting rights case and briefly explains how Alito ignores Alabama's long history of race-based voter suppression and why, if adopted in future cases, Alito's ahistorical assertion could devastate Black voters' chances to win voting rights challenges across the nation.

Victim Intoxication and Capacity to Consent in Sexual Assault Statutes across the United States.

Alcohol use is common in cases of sexual assault. These cases raise significant questions about a victim's capacity to consent to sexual intercourse. In many United States jurisdictions, intoxicated victims may be considered mentally incapacitated only if they have been administered alcohol or other substances involuntarily. A recent Minnesota Supreme Court case illustrated why reform is necessary in this area of criminal sexual conduct law. We present this case and the results of a review of felony criminal sexual conduct laws in the fifty states of the United States and the District of Columbia. We find that nearly half of the jurisdictions surveyed require that a victim must be involuntarily intoxicated to be considered incapacitated or impaired. We draw on Minnesota's experience with legislative reform of its sexual assault laws as well as judicially mediated reform mechanisms to present a roadmap for overcoming this voluntary intoxication caveat. Finally, we discuss the implications of these laws for victims of sexual assault and for the practice of forensic psychiatry in cases of criminal sexual conduct involving victim intoxication.

Lois Curtis, lead plaintiff in Olmstead case, dies

Lois Curtis, the lead plaintiff in Olmstead v. L.C., the monumental Supreme Court case that solidified the right for people with disabilities to receive services in the most integrated settings possible, died of pancreatic cancer on Nov. 3, at 55, reported the nonprofit, disability‐led organization able South Carolina, along with several news outlets. Curtis fought for the elimination of unnecessary segregation of people with disabilities. Curtis had cognitive disabilities and schizophrenia and was known to wander off into the community. Because of a lack of education and understanding of disabled people, Curtis often found herself in the custody of authorities who demanded that her family force her into institutionalization. In the mid‐90s she sought help from the Atlanta Legal Aid Society, asking to be released and given services that would allow her to live on her own in the community. They filed a case against the state of Georgia, the defendant being the commissioner of the Georgia Department of Human Resources, Tommy Olmstead. In 1999, Curtis won her case after the Supreme Court found that she was unjustly segregated as a person with a disability and that such segregation was discrimination in violation of Title II of the Americans with Disabilities Act! Curtis went on to live her life in her community, just as she wanted. Ira Burnim, legal director of the Bazelon Center, in an article in The New York Times about Curtis' life and death, wrote, “This is the first time the court has announced that needless institutionalization is a form of discrimination.”

An evaluation framework for juvenile defense: A theory of change and logic model measurements

AbstractThis paper presents an evaluation framework for juvenile defense. The evaluation framework establishes a theory of change, logic model categories, and potential measurements for understanding the systemic variation in juvenile defense across the US. Grounded in the US Supreme Court case affirming the due process right to defense counsel, In re Gault, the evaluation framework offers a method of studying juvenile defense to assist youth in delinquency court, defenders, policymakers, and researchers. The methodological shift to an evaluation framework asserts a refocus on the legal objectives for provision of defense counsel in delinquency court.

To Court Without the Corps? The U.S. Army Corps of Engineers and Florida v. Georgia

highlights:•The U.S. Army Corps of Engineers has altered the Apalachicola-Chattahoochee-Flint (ACF) river system.•Past and current Army Corps projects in the ACF contour legal conflicts between states.•Florida v. Georgia invites future geographic engagement with the history and practices of engineers in the ACF.This paper examines the role of the U.S. Army Corps of Engineers (the Corps) in a recent Supreme Court case, Florida v. Georgia, concerning water allocation in the Apalachicola-Chattahoochee-Flint (ACF) river basin. Although several non-federal, run-of-the-river hydropower dams exist on the Chattahoochee and Flint rivers, the system of five federal dams operated by the Corps most profoundly impacts the flow regime of the Chattahoochee and Apalachicola rivers. While the Corps was not a party in Florida v. Georgia, findings throughout the legal proceedings demonstrated the centrality of the Corps to contemporary politics and conflicts in the ACF. We propose the results of Florida v. Georgia can serve as inspiration for geographers studying the ACF river basin and other transboundary rivers to analytically and politically engage with experts and technical knowledge in new ways.

2021년 소득세제, 국제조세 판례회고

2021년 한 해 선고된 대법원 판결 중 소득세, 법인세, 국제조세에 관한 판결 6개를 선정하여 소개하였다.BR 대법원 2021. 4. 8. 선고 2020두53699 판결은 물상보증인이 담보로 제공한 부동산이 경매절차에서 매각된 다음 채무자의 파산 등으로 물상보증인의 구상권 행사가 불가능하게 된 경우 이를 국세기본법 제45조의2 제2항, 같은 법 시행령 제25조의2가 정한 후발적 경정청구사유로 볼 수 없다고 판단하였다.BR 대법원 2021. 5. 7. 선고 2016두63439 판결은 특수관계에 있는 개인과 법인 사이의 주식 등 재산 양도에서 ‘그 대가가 법인세법 시행령 제89조에서 정한 시가에 해당함’을 전제로 하여 해당 법인의 거래에 대하여 부당행위계산부인에 관한 법인세법 제52조가 적용되지 않는 경우 그 상대방인 개인에 대하여도 양도소득의 부당행위계산부인에 관한 소득세법 제101조 제1항을 적용하지 않는다는 것일 뿐, 달리 개인과 법인에 적용되는 시가를 법인세법상 시가로 일치시키는 규정으로 볼 수 없다고 판단하였다.BR 대법원 2021. 6. 10. 선고 2020두55954 판결은 주식매수선택권을 행사하여 신주를 인수하는 경우 신주인수권의 수입금액 계산에 관한 구 소득세법 시행령 제51조 제5항 제4호, 제6항은 적용되지 않는다고 판단하였다.BR 대법원 2021. 7. 29. 선고 2017두63337 판결은 주식회사가 차입금으로 자기주식을 취득하는 것이 상법 제341조 제1항 단서에 따라 허용된다고 판단하였다.BR 대법원 2021. 7. 29. 선고 2020두39655 판결은 법인이 정당한 사유 없이 특수관계가 소멸되는 날까지 회수하지 않은 업무무관 가지급금 등은 구 법인세법 제15조 제1항이 정한 익금에는 해당하지 않지만 소득처분을 위한 조세정책상 이유로 익금으로 보는 것으로서 구 법인세법 제15조 제3항의 위임 범위를 벗어난 것으로 볼 수 없다고 판단하였다.BR 대법원 2021. 7. 21. 선고 2018두54408 판결은 한 · 일 조세조약 제10조 제2항 (가)목이 정한 ‘이윤발생이 발생한 회계기간’은 ‘배당결의일이 속한 회계기간’이 아니라 ‘배당의 대상이 되는 회계기간’을 의미한다고 판단하였다.

Reckoning with Hammers and Mallets: Indiana’s Approach to Licensing English Learner Teachers

INTESOL has actively advocated for appropriate certification and training of Indiana’s EL teacher workforce, informing the policy of the Indiana English Learner (EL) Teacher of Record. The Indiana EL Teacher of Record requirement, established in 2019 by the Indiana Department of Education asserts that by 2022, all Indiana school districts will have an established 30:1 ratio of EL students to EL-licensed teachers meeting the minimum criterion of two Supreme Court cases, Lau v. Nichols (1974) and Castañeda v. Pickard (1984). The Indiana Department of Education, the funder of this policy, granted accredited universities in EL education to train and license educators, increasing the overall capacity of districts to meet the needs and rights of their ELs with appropriate staffing and programming. While efforts to meet 30:1 goal are still in progress, Indiana’s approach has contrasted with other states who addressed such licensure initiatives with a heavy hammer, whereas Indiana has done it with a softer mallet. Implications for universities, districts, and families are discussed.

Protectors in Liechtenstein: protecting or threatening trust and foundation assets?

Abstract When setting up trusts and foundations, settlors and founders struggle with giving away assets and control to professional trustees in Liechtenstein whom, in many cases, they have never met. At first, to bridge that gap, settlors’ confidants accepted roles as protectors and the settlor conferred powers on them aimed at policing and, if necessary, firing the trustee. In the absence of enforceable rights to information and locus standi in Liechtenstein courts, discretionary trust beneficiaries greatly rely on the assistance of such protectors, especially when trusts are in crisis or dispute. More recently, however, protectors have undergone sophisticated (re-)structuring and adopted new identities, e.g. as corporate entities, thus not necessarily facilitating governance, but sometimes adding complexity. Increasingly, the international regulatory framework has impacted that structure, as the threat of being considered a controlling protector might lead to undesired effects, including protectors being registered and exposed in BO Public Registers, or, even worse, being reported as beneficial owners of trusts and foundations to their local tax authorities. As is the case with any legal concept, structuring provides protectors with both opportunities and pitfalls. This article wishes to set out how protectors can save trusts and foundations from collapsing and how to protect assets from the onslaught of the settlors’ creditors. That said, there are some downsides: a very recent Supreme Court case shows that using protectors might doom the trust or foundation to failure unless pristine standards and principles are followed.

면책 주장과 기판력 및 청구이의의 소

Once a judgment has been finalized on a cause of action, parties are precluded from raising pleadings in support of, or defense to avoid the cause of action, which have existed prior to the final judgment but have not been submitted during the litigation. In the same vein, debtor cannot bring up pre-existing defense to object the execution based on the final judgment(Civil Execution Code Article 44②). During the lawsuit brought by the creditor seeking for monetary payment of his/her claim, if the debtor has not raised the fact that he/she has already been discharged, could the debtor later file an objection suit against the execution claiming that he/she has been discharged? The Supreme Court allowed this in 2017Da286492 case.
 In order to offer strong protection to the debtor, the Supreme Court analogized discharge to qualified acceptance of inheritance, and took the same approach. Namely, the scope of liability is irrelevant to the cause of action, and unless it is raised by the parties during the litigation, it does not become a matter to be decided upon, and therefore bringing up the issue of discharge, which releases the debtor from liability, is not precluded by res judicata effect of the prior judgment. However, the Supreme Court case law regarding qualified acceptance of inheritance is inconsistent and does not conform with the jurisprudence in procedural rules. Such conclusion was inevitable in the case of qualified acceptance of inheritance, as it was necessary to protect the heir who had to inherit the decedent’s debt which he/she was unaware of and had no reasons attributable to. On the other hand, the rationale for the debtor is less compelling, since it was his/her debt which he/she was supposed to be liable with his/her entire asset, yet has been discharged due to special consideration. Also, the substantive and procedural treatment regarding discharge is quite different from that of the qualified acceptance of inheritance. Moreover, 2017Da286492 judgment forces the creditor to relitigate on the same issue just because the debtor did not submit discharge defense during the prior lawsuit.
 In order to maintain procedural fairness and legal certainty, in principle the debtor should not be allowed to bring up pre-existing discharge defense in order to file an objection suit against execution because it is precluded by the res judicata of the prior judgment. As for the exceptional cases in which the debtor needs to be protected, good faith principle could be applied and the special circumstances of the debtor should be considered as a factor.