Supreme Court Rulings Research Articles

Analysis of Chilean Supreme Court rulings in medical malpractice cases, 2014–2015

ObjectiveThe objective of the present study is to characterise the epidemiological and legal data on medical malpractice ruled by the Chilean Supreme Court (CSC) in the years 2014 and 2015. Material and methodA search of the CSC electronic database was conducted to identify and analyse CSC rulings for criminal and civil medical malpractice cases. ResultsA total of 110 malpractice cases were identified. The CSC received only civil cases of medical malpractices during the studied period. The average duration of the trial was 39 months. Gynaecologists faced suits more frequently than any other type of specialist. The majority of cases were associated with the public health system. More claims were associated with scheduled than with emergency care. Likewise, more claims were associated with non-surgical treatment than with surgical procedures. More than a third (39%) of the cases resulted in the patient's death. The majority of CSC rulings were in favour of the defendants. ConclusionsAn urgent analysis of the risk factors is necessary, not only of the occurrence of malpractice, but also of doctor–patient conflicts by judicial means, especially in the gynaecological-obstetrics area. In addition, considering that the trials not only involve a high economic cost, but also psychological and emotional one, for all involved, an analysis of the judicial mechanisms of these types of cases could help resolve them, and when possible, in preliminary courts or in shorter judicial processes, benefiting all parties.

Kill Cammer: Securities Litigation Without Junk Science

Securities litigation is a hotbed of junk science concerning market efficiency. This Article explains why and suggests a way out. In its 1988 decision in Basic v. Levinson, the Supreme Court endorsed the fraud on the market presumption for securities traded in an efficient market. Faced with the task of determining market efficiency, courts throughout the nation embraced the ad hoc speculations of a first-mover district court that proclaimed, in Cammer v. Bloom, how to allege (and presumably prove) facts that would do just that. The Cammer court’s analysis did not rely on financial economics for its notions, but instead regurgitated the assertions of a single plaintiff’s expert affidavit – from a securities law professor, not a financial economist – and a securities law treatise equally uninformed by the relevant field. The result has been 30 years of junk science in securities adjudication. This Article traces the development of the fraud on the market theory from its pre-efficient-markets-hypothesis roots through a brief “gilding the lily” phase where an appeal to social science results on market efficiency was only an ancillary, bolstering argument for already-sufficient precedent for the fraud on the market presumption, to the requirement that litigants plead and prove efficiency using indicia with no support in financial economics. The way out of this embarrassing state of affairs is to return to the roots of fraud on the market in the non-technical notion of “a free and open public market” that inquires only whether the market for the security at issue is open to active buyers and sellers and is not subject to substantial seller lockups or bans on short selling. It is reasonable to presume that prices in such free and open public markets can be distorted by fraud, a presumption that is then rebuttable by establishing (1) that the alleged fraud in fact had no price impact; (2) that there are substantial limits on the ability of active investors to buy and sell in the market, such that the market is not a “free and open public” one; or (3) that the plaintiff would have made their purchase or sale at the affected price even knowing of the falsity of the alleged misrepresentation. This formulation is consistent with all controlling Supreme Court opinions.

Lorenzo v. SEC: the supreme court rules on scheme liability under the federal securities laws

PurposeTo analyze the impact of the Supreme Court’s decision in Lorenzo v. SEC.Design/methodology/approachDiscusses the lead up to the decision, the arguments made by both sides, and the opinion of the Court, and makes predictions about the likely impact of the decision.FindingsThe holding is unlikely to have a significant impact on private securities litigation as shareholders, unlike the SEC, are required to prove reliance and, under the Lorenzo fact pattern, reliance cannot be shown.Originality/valueExpert analysis and guidance from experienced securities litigation counsel.

Naming Names: The Impact of Supreme Court Opinion Attribution on Citizen Assessment of Policy Outcomes

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions' policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation's High Court or to an individual justice influences the public's agreement with the Court's rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policymaking operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

Supreme Court Ruling Encourages Early Filing of Applications to Register Copyrights [Patent Reviews

Supreme Court Ruling Encourages Early Filing of Applications to Register Copyrights [Patent Reviews

보험과 상속․증여세와의 관계에 대한 고찰 - 즉시연금의 세법, 예규 및 판례 사례를 중심으로 (A Study on the Relationship between Insurance and Inheritance and Gift Tax - Centering on Tax Laws, Regulations, and Cases of Precedents About Immediate Pension)

Korean Abstract: 과거에는 우연한 사고를 대비하는 보장기능의 보험 상품들이 대다수였다면 최근에는 재산을 마련하는 저축기능의 상품들도 많이 출시되어 보험 상품의 종류와 수가 많고 다양해 졌다. 보험소비자들은 이런 보험의 기능들을 활용하여 사고에 대한 위험대비 뿐만 아니라 재산 증식 및 더 나아가 재산을 배우자나 자녀 등에게 이전하는 수단으로까지 활용되기도 한다. 이에 과세당국은 이러한 보험계약의 보험차익에 대해서는 소득세, 보험금의 무상이전에 대해서는 증여세 또는 상속세를 부과하려는 것은 당연하다고 볼 수 있다. 그러나 보험 상품 중 즉시연금 보험금에 대한 증여세를 부과하는 과정 속에서 세법에 명시되어 있는 보험금에 대한 증여시기 및 증여재산가액의 산정과 최근 국세청 예규 및 조세심판원, 대법원 판례에 명시되어 있는 보험금의 증여시기 및 증여재산가액의 산정에 다소 차이를 보이고 있어 재산이전을 목적으로 보험을 가입한 보험소비자의 입장에서 볼 때 상당한 혼란을 가져올 수가 있다. 이는 납세자의 세금납부에 대한 법적 안정성과 예측가능성이 저해되어 조세법률주의에 어긋날 수도 있을 뿐만 아니라 보험 상품에 대한 신뢰성을 저하시킬 수 있어 보험소비자들이 보험 상품을 기피하여 보험 산업 발전에 안 좋은 영향을 줄 수 있다. 따라서 조세법률주의에 입각하여 법률에 의한 예규 및 판례가 이루어지거나 사회통념상 또는 형평성에 맞게 법률을 변경할 필요가 있을 경우 그 법률을 변경하여 법률과 예규 및 판례가 일치함으로써 보험소비자의 입장에서는 보험과 관련된 조세를 예측하여 재산 이전 등 합리적인 재무 설계를 함은 물론이고 재무설계사(Financial Planner: FP)의 입장에서는 법률에 근거하여 보험소비자에게 정확한 세금설계를 할 수 있도록 해야 하겠다. 따라서 본 논문에서는 보험 상품 중 즉시연금보험의 보험금 증여를 중심으로 세법과 예규 및 판례에서 나타나고 있는 증여시기 및 증여재산가액 산정에 있어서 그 차이점을 확인해 보고 이러한 차이점이 보험소비자는 물론 재무설계사의 입장에서 바라볼 때 과세납부의 합리적인 추론에 대해 검토해 보고자 한다. English Abstract: In the past, insurance policies that protect against accidents were mostly used, but recently many savings products that provide property insurance have been introduced. This trend has resulted in many different types of insurance products. Insurance is often used not only for the risk of accidents, but also for the growth of assets and for the transfer of assets to spouses and children. In this regard, it is natural the taxation authorities to impose income taxes on the insurance gains of such contracts and on gifts or inheritance taxes on free transfers of insurance money. However, in the process of imposing a gift tax on pension insurance funds, the timing of gift and gift property values for insurance premiums as specified in the tax law and the date of donation of insurance funds and the value of gift assets as specified in the recent NTS rules and Supreme Court rulings are somewhat different. because of that can be quite confusing for the insurance consumers. This would not only undermine the stability and predictability of tax payments, and it would also undermine the credibility of insurance products. This trend could adversely affect the development of the insurance industry as insurance consumers may reject insurance products. Therefore, there should be rules and precedents under the law based on the principle of tax, or change the law if it is necessary to change the law in accordance with social norms or fair. So, laws, rules and precedents should be consistent so that insurance-related taxes can be predicted from an insurance consumer's perspective. And from the perspective of FP(Financial Planners), the correct tax design based on the law should help insurance consumers. This paper examined the differences in the calculation of the timing of the bestowal and the value of the donated properties in the rules and precedents, tax laws, and the rational inference of taxation payments from the perspectives of insurance consumers as well as the FP.

State Supreme Court Rules as to Charitable Immunity Law and Facts

The Supreme Court of Arkansas, by opinion delivered on April 11, held that, while the availability of statutory charitable immunity is a matter of law for the court to decide, any disputed facts as to the existence of the immunity may be submitted to a jury for its decision (Davis Nursing Association v. Neal).

2019/8 Supreme Court rules on transfer of undertaking (FI)

2019/8 Supreme Court rules on transfer of undertaking (FI)

대법원 판결의 갱신기대권 및 해고의 법리적용의 가부

대법원 판결의 갱신기대권 및 해고의 법리적용의 가부

The Influence of Unique Information in Briefs on Supreme Court Opinion Content

Using a unique and vast dataset and new measures derived from natural language processing, we investigate the flow of information to the Supreme Court via briefs. Our study provides an opportunity to consider the often-nuanced role of information in policymaking. Building on prior work, we contribute in a number of important ways to our understanding of the influence of information on policy generally and briefs on the Court’s decisions specifically. We consider how the repetition of information can signal policy coalescence across interested groups and individuals, as well as proxy quality and exert a psychological effect. We employ nuanced computational text analytic tools that are new to this line of inquiry to assess the extent to which information in a brief is shared among all briefs and lower court opinions in the case. Using these measures, we investigate the relationship between novel and shared information and the content of Supreme Court opinions. We do so over the entire substantive content of a new dataset of more than 12,000 litigant and amicus briefs filed in U.S. Supreme Court cases from 1988 to 2005. Our results provide new evidence that briefs presenting shared information are more likely to have that information adopted in the Court’s majority opinion, raising interesting implications regarding majoritarianism.

Legal Conclusions Of The Supreme Court On The Application Of The Rules Of Family Law As A Source Of Family Law In Ukraine

The scientific article is devoted to the study of the legal nature of the Supreme Court’s legal conclusions regarding the application of family law rules and their place in the system of family law sources of Ukraine. The views of Ukrainian and foreign legal scholars on this issue are analyzed, as well as the legislative regulation of this issue, a number of examples of the Supreme Court’s legal positions are highlighted. It is substantiated that the Supreme Court’s legal conclusions on the application of family law are a source of family law because they have the properties of a source of law: binding on all bodies, including courts applying the applicable law (except physical and legal persons not bound by a legal opinion, albeit in court, but which may invoke it to substantiate their position; the courts may also withdraw their opinion in accordance with the procedure laid down in Articles 403 and 404 of the Civil Procedure Code of Ukraine) regulatory, availability, formality and publicity, legality, ensuring the means of state coercion, law-making significance. It is also determined that the legal position of the Supreme Court exists in the form of a specific legal order, which has a corresponding official form of expression and consolidation, law­making significance. In the system of family law sources issued by the courts, legal opinions on the application of family law rules as issued by the highest authority in the system of courts of general jurisdiction are hierarchically above the acts of local and appellate courts, as well as other Supreme Court rulings after the adoption of the resolution containing the relevant legal opinion, except in cases of deviation from it in accordance with Art. 403 of the Civil Procedure Code of Ukraine. Legal positions can actually get legal expression not only in the decisions of the Supreme Court, but also the decisions of the Plenum of the Supreme Court.

US Supreme court rules SEC administrative law judges are subject to the appointments clause

PurposeThe purpose of this paper is to analyze the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (June 21, 2018).Design/methodology/approachThe approach of this paper is to discuss the Securities and Exchange Commission’s (“SEC”) use of Administrative Law Judges (“ALJs”), and the litigation challenging the appointment of those ALJs, culminating in the Supreme Court’s decision in Lucia.FindingsIn Lucia, the Court held that SEC ALJs are “officers of the United States,” and thus subject to the Constitution’s Appointments Clause, which limits the power to appoint “officers” to the President, “Courts of Law” or “Heads of Departments.” Because the ALJ who presided over Lucia’s administrative proceeding was not appointed by the SEC itself, the Court held that the ALJ’s appointment was unconstitutional and ordered the SEC to provide Lucia with a new hearing in front of a new (constitutionally appointed) ALJ.Practical implicationsThe Supreme Court’s decision in Lucia provides defense counsel with new ammunition to challenge SEC administrative proceedings. It will likely have a significant effect on many pending and already-concluded SEC administrative proceedings but also leaves open a number of important questions for further litigation.Originality/valueThis paper provides expert analysis and guidance from experienced securities litigators.

Chinese Supreme Court rules that hoarding trade marks in bad faith falls within the scope of ‘other illegitimate means’

Chinese Supreme Court rules that hoarding trade marks in bad faith falls within the scope of ‘other illegitimate means’

Improving Supreme Court Forecasting Using Boosted Decision Trees

Though used frequently in machine learning, boosted decision trees are largely unused in political science, despite many useful properties. We explain how to use one variant of boosted decision trees, AdaBoosted decision trees (ADTs), for social science predictions. We illustrate their use by examining a well-known political prediction problem, predicting U.S. Supreme Court rulings. We find that our ADT approach outperforms existing predictive models. We also provide two additional examples of the approach, one predicting the onset of civil wars and the other predicting county-level vote shares in U.S. presidential elections.

Why did the Supreme Court rule that the issue of foresight had been misinterpreted for the past 30 years with regards to joint enterprise?

Joint enterprise is an area of law that has no statutory definition, instead being developed through the common law. It involves situations where more than one defendant can be convicted of the same crime, even if the co-defendant did not play an active role in the crime and, since it is common law based, many would argue (including Ben Crewe, a scholar) that the laws surrounding it have been created in a ‘hazardous way’. This has ultimately resulted in the Supreme Court ruling in 2016 that the law had been misinterpreted for the past 30 years- and judges had been using the law to wrongfully convict people, with a major factor being the issue of foresight had been misunderstood. In the past the jury had been able to use proof of foresight of a crime as a suitable mens rea for joint enterprise, a lower mens rea threshold than for other convictions of murder and post 2016 this is no longer the case. This essay will therefore explore the leading case where the decision to overturn the law was made, what happened prior to 2016 and any appeal cases and the social context of joint enterprise legislation.

Measuring the Issue Content of Supreme Court Opinions

AbstractThe opinions of the US Supreme Court are central to volumes of research on law, courts, and politics. To understand these complex and often-lengthy documents, scholars frequently rely on dichotomous indicators of opinion content. While sometimes appropriate, for many research settings this simplification of opinion content systematically omits important information. Using all US Supreme Court opinions from 1803 to 2010 in association with structural topic models, I instead demonstrate the value of representing the Court’s attention in opinions in terms of topic proportions.

Ex parte Somers (1927) 48 NPD 1: A story of racial exclusion in the South African legal profession

ABSTRACT The article critically examines the judgment in ex parte Somers (1927) 48 NPD 1 from both a legal and personal perspective. The judgment details the case of an Indian South African who requested the Court to grant his admission as a candidate attorney. The Court refused his application on the basis that he could not complete the set of courses required by the Supreme Court Rules, as his admission to Natal University College had been denied. Without detailing the reasons for the College's refusal, the Court reinforced the College's racial discriminatory policies. The article examines the judgment from two perspectives: courtrooms as a space of protest; and racial exclusion at law schools and the legal profession. Keywords: Racial discrimination, courtroom as a space of protest, law schools, legal profession

The Unsolid South: Mass Politics and National Representation in a One-Party Enclave by Devin Caughey

Reviewed by: The Unsolid South: Mass Politics and National Representation in a One-Party Enclave by Devin Caughey Eric Rauchway The Unsolid South: Mass Politics and National Representation in a One-Party Enclave. By Devin Caughey. Princeton Studies in American Politics. (Princeton and Oxford: Princeton University Press, 2018. Pp. xiv, 214. Paper, $35.00, ISBN 978-0-691-18180-6; cloth, $99.00, ISBN 978-0-691-18179-0.) Although the mid-twentieth-century South was not a democracy, Devin Caughey writes, it did have competitive primary elections whose winners understood themselves as beholden to the majority share of their voting constituents. The resulting connection to these voters ensured that southern members of Congress pursued policies reflecting the preferences of those empowered to choose legislators. Scholars should therefore understand that the shift of southern politics in a more conservative direction reflected a shift in the feelings of white voters, who felt their racial status increasingly challenged by pro-labor New Dealers. Caughey uses selectoral connection, a term more common among scholars of dictatorships than democracies, to describe the responsiveness of southern legislators to those who put them in office. A “selectorate” is a limited group, whose factions compete fiercely to put their preferred candidate in office. If an elected official owes his or her place to the triumphant faction, the official has a connection to the faction and is keen to please these constituents while in office. Thus, although the Jim Crow South was undemocratic, Democratic Party primaries were still competitive. Even stalwarts like Sam Rayburn and Wright Patman frequently had to fight primary challengers. They had no guarantee of remaining in office, and to retain power they felt obliged to reflect the will of the majority faction in their districts. Caughey’s principal method is the analysis of public opinion data and congressional voting, and he finds that the former leads the latter. In a 1937 poll that asked whether Americans identified as liberals or conservatives, 63 percent of white southerners declared they were liberals, as against only 55 percent of respondents nationwide. By 1948 a similar poll showed that only 34 percent of white southerners thought of themselves as liberal, as against 51 percent nationwide. A majority of white southerners found that New Deal laws, particularly those empowering workers, posed a threat to Jim Crow. Southern members of Congress who sought to keep their seats responded by voting often against New Deal legislation. Against the backdrop of these quantitative trends, Caughey stages occasional dramas that illustrate his point, including the tale of Representative Luther Patrick of Alabama. Patrick won nomination as a New Deal liberal against a business-friendly opponent in 1936 and became one of the few southern Democrats in Congress to support the Fair Labor Standards Act in 1938. Increasing antiunion sentiment and a move to the right among his constituents, however, compelled Patrick to support antistrike legislation in 1941. But Patrick did not shift rapidly or far enough, and he lost a primary [End Page 946] election to an antilabor Democrat in 1942. As Caughey notes, this story shows how Democratic primary elections could be competitive and force elected officials to change their behavior in response to shifting constituent opinion. Caughey’s distinction between authoritarian regimes and undemocratic, if factionally competitive, ones may seem too nice, but it affords an indispensable understanding of southern elections, highlighting the centrality of widespread racism to the twentieth century’s changing partisan alignments. Such factional competition allowed Democratic administrations to hasten the end of Jim Crow. In 1941 the Civil Rights Section of the Justice Department brought a lawsuit, U.S. v. Classic, that let the Supreme Court rule that the federal government could regulate primary elections. The case proceeded from factional competition within the Democratic Party and its resulting electoral criminality. The Court’s ruling brought the white primary a step closer to its demise. Eric Rauchway University of California, Davis Copyright © 2019 The Southern Historical Association

The Long Civil War in the North Georgia Mountains: Confederate Nationalism, Sectionalism, and White Supremacy in Bartow County, Georgia by Keith S. Hébert

Reviewed by: The Long Civil War in the North Georgia Mountains: Confederate Nationalism, Sectionalism, and White Supremacy in Bartow County, Georgia by Keith S. Hébert L. Bao Bui The Long Civil War in the North Georgia Mountains: Confederate Nationalism, Sectionalism, and White Supremacy in Bartow County, Georgia. By Keith S. Hébert. (Knoxville: University of Tennessee Press, 2017. Pp. xii, 282. $50.00, ISBN 978-1-62190-317-8.) A considerable body of scholarship has made the case for the distinctiveness of white Appalachian society and culture. In The Long Civil War in the North Georgia Mountains: Confederate Nationalism, Sectionalism, and White Supremacy in Bartow County, Georgia, Keith S. Hebért provides a sharp [End Page 174] counterpoint. His book, derived from his dissertation research, argues that Bartow County represents on a smaller scale not just the South but also all of America. Situated in the northwest corner of Georgia, the county's 460 square miles of fertile land once belonged to the Cherokees. Their forced removal in the 1830s during the era of Andrew Jackson marked another ignominious chapter in the long history of both white populist democracy and white supremacy in the region. By the 1840s, slaves made up more than a fifth of the county's population. The profits derived from their forced labor sustained the political power of the county's dominant planter class. The racial ideology that justified and upheld slavery in Bartow County, and elsewhere throughout the South, provided the social glue that held together the South's white population despite the significant differences in politics, religion, and social class. For sure, the pro-Union sentiments held by many white Appalachians during the Civil War proved a major thorn in the Confederacy' s war effort. Yet, as Hebért points out, the desire of many white southerners in the antebellum period to peacefully resolve the slavery debate within the framework of a federal union could not match their shared conviction that black people should forever stay in a position of permanent legal and social inferiority. That conviction, combined with ties of kinship and culture, explains why the white citizens of Bartow County chose secession and how they maintained the will to wage war despite hardships and deprivations. The belief in both white supremacy and black slavery, more than anything else, propelled nearly a nearly a third of the county's white men to fight for the Confederacy; a third of those who did enlist gave their lives for a cause they felt worthy of their sacrifice. Hebért's use of personal letters from the 1860s gives voice to people—male and female, rich and poor, black and white—who navigated, negotiated, and influenced the events of that tumultuous decade. His book does a fine job of shedding light on the impact of the war on the lives of Bartow County's residents and the challenges they faced in the postwar world. The freedpeople of Bartow County, nominally elevated to the status of free citizens after the war, struggled to assert their full claims to American life. As The Long Civil War in the North Georgia Mountains makes clear, the white majority population held hard and fast to the notion of white supremacy. In Appalachian Georgia, as in the rest of the United States, the Civil War wiped out legalized slavery and the vast wealth invested in human bondage. Still, no amount of destruction and suffering, no experience of military defeat and occupation, no constitutional amendments and Supreme Court rulings, could persuade white southerners to surrender the foundational principle that underpinned their society and their way of life since the 1600s. Hebért adds to our understanding of this small corner of Appalachia and the role of geography in American history. More important, he reminds us of the enduring power of racial ideology to shape American identity and collective memory. [End Page 175] L. Bao Bui Stephen F. Austin State University Copyright © 2019 The Southern Historical Association

The Quantum of Suspicion Needed for an Exigent Circumstances Search

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts. To resolve this conflict and provide guidance to law enforcement officials and lower court judges, this Article proposes a three-step solution. First, the Court should reaffirm that probable cause to enter is a prerequisite for any exigent circumstances search: probable cause to believe, for example, that a suspect or piece of evidence is presently located on the premises. Second, the Court should clarify that any full search also requires probable cause of exigency: an independent finding of probable cause to believe that taking the time to obtain a warrant would result in some untoward consequence. This Article thus rejects the views expressed by some scholars that the Court already does—or should—allow at least some exigent circumstances searches on a standard lower than probable cause. Third, the Court should retreat from its opinions holding that a police officer’s subjective motivations are irrelevant in the subset of exigent circumstances cases where the entry is purportedly intended to provide emergency aid or further some other nonlaw- enforcement interest. Rather, the Court should recognize that these searches are, in essence, administrative inspections and therefore should demand proof that the primary purpose of the entry was actually to provide assistance, rather than to investigate a crime or conduct a pretextual search for evidence.