Supreme Court Rulings Research Articles

2017/48 Supreme Court rules on scope of collective dismissal procedure (PL)

2017/48 Supreme Court rules on scope of collective dismissal procedure (PL)

Disagreeable Rhetoric and the Prospect of Public Opposition: Opinion Moderation on the U.S. Supreme Court

Elite rhetoric is an important aspect of democracy, and understanding why elites alter their rhetorical tone is vital to understanding the nature of public–elite interaction. In this paper, we identify the conditions under which insulated elites respond to public opinion by changing the amount of disagreeable rhetoric they emphasize. We examine Supreme Court opinions and theorize that the majority limits the use of disagreeable rhetoric—language with harsh, unpleasant, or negative connotations—in salient cases with the intention of dulling public opposition to rulings. We test our expectations on two levels, the first using a broad measure of public mood on a large sample of cases and the second using a small sample with issue-specific public opinion measures. We find that as public opinion diverges from the Court, the majority tones down its disagreeable rhetoric, but only in salient cases.

The Supreme Court Ruling in Sandoz v Amgen

The Supreme Court Ruling in Sandoz v Amgen

Political Voice

Political Voice

Lambretta vrooming away: Italian Supreme Court rules that mark can be revoked for non-use even if it is still well-known

Scooters India Ltd v Brand Concern BV, Corte di Cassazione (Italian Supreme Court), First Chamber, judgment of 28 March 2017, No 7970/17 The ltalian Supreme Court has ruled that for a well-known trade mark to be revoked for non-use, the only condition is lack of genuine use during the statutory period; whether, due to its well-known character, the mark is still in the minds of consumers is not a relevant factor when deciding on a revocation request. Article 24(1) of the Italian Intellectual Property Code (IPC) lists two grounds of revocation of trade marks for non-use: i) if, within five years from the date of the registration, the mark is not used by the rightholder in relation to the products for which the mark is registered; ii) if the use of the mark is suspended for a continuous period of five years. Before the enactment of the IPC revocation for non-use was governed by Article 42(1) of the Royal Decree 929/1942. That provision was similar to the one in the IPC but not in relation to the length of the relevant non-use period. The original text of Article 42(1) of the Royal Decree 929/1942 provided, in fact, for a non-use period of three years. This period was subsequently extended by Legislative Decree 480/1992 to five years as is currently required by the IPC.

Luther v. Borden: A Taney Court Mystery Solved

It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court’s major opinions—those cases that tend to be anthologized and remembered by generalists. Those major cases which Taney did write are consistently about slavery (or states’ rights or state powers, which in Taney’s mind may have amounted to the same thing). There is a notable exception: Luther v. Borden—a case about the Guarantee Clause. This raises a question. Setting aside his opinions on slavery or states’ rights, what could have moved the author of Dred Scott, by consensus the worst Supreme Court opinion in history, to choose Luther v. Borden as one of the few remembered major opinions he did write? To begin to unravel this little mystery of history, a glimpse into the character and judgment of Roger Brooke Taney is offered, with an amusing parallel drawn between the respective nominations to the Supreme Court of Taney and Robert Bork. Luther is reconsidered in light of the Transcripts of Record, and with an unembarrassed presentism rather than historicism. In view of Chief Justice Warren’s thinking in Powell v. McCormack, much of Chief Justice Taney’s reasoning in Luther is shown not only to be evasive, illogical and unconvincing, but also intellectually dishonest, if he is to be credited with the understandings of law and its processes reasonably attributable to a former Attorney General of the United States. Even more disturbingly, Luther v. Borden can plausibly be read as having a darker side than is conventionally understood, with an impact of surprising magnitude and hurtfulness, placing it well within the ambitions of the author of Dred Scott.

PEMBATASAN UPAYA HUKUM PERKARA PERDATA GUNA MEWUJUDKAN ASAS PERADILAN SEDERHANA, CEPAT DAN BIAYA RINGAN

The most important thing for any regulation judicial principle is simple, fast and low cost is to reduce the accumulation of cases in the Supreme Court. That is because, line with the increasing increasing number of incoming cases, and also that successfully terminated in the District Court and Court of Appeal, then the incoming number of decisions in the Supreme Court also increased and began to be a serious problem. In this regard, People's Consultative Assembly (MPR) seriously consider this and responded by provisions, that is TAP MPR No. VIII/MPR/2000 about of the Annual Report of State High Institutions at the Annual Session of the People's Consultative Assembly of the Republic of Indonesia in 2000 which one substance recommend that the Supreme Court immediately resolve pending lawsuits by increasing the number and quality of decisions and that the Supreme Court makes the rules o restrict the entry of cassation cases. Following up on the existence of the MPR decrees, he Supreme Court has issued several provisions n order to limit legal action in order to realize judicial principle is simple, fast and low cost, either in the form of the Supreme Court Rules (Perma) nor Supreme Court Circular Letter (Sema). This article is useful for know and understand how much has been the implementation judicial principle is simple, fast and low cost, in order to reduce the buildup of civil cases.

Collusion/Competition

Ever since the U.S. Supreme Court opinion in Matsushita, various U.S. district courts have issued a series of rulings that appear to constitute a new learning on the economics of collusive behavior and to elevate the economic evidentiary bar for successful proof of price-fixing and bid-rigging. The rulings use game theory constructs expressed as pure, interdependent behavior that theoretically can result in supracompetitive prices in the absence of any agreement. The most recent explanation of this learning is contained in the 2016 titanium dioxide (TiO2) opinion Valspar v. E. I. DuPont, which raises the bar for proving a Sherman Act Sec. 1 violation. This and earlier rulings appear counterintuitive when their reasoning is tested against the context of Judge Richard Posner’s opinion on the value of circumstantial evidence in High Fructose Corn Syrup and In re Text Messaging. This article identifies market structure and behavioral features typically found in cartel arrangements, and tests the efficacy of what is perceived as a new learning on collusion/competition with empirical data from twelve alleged price-fixing conspiracies successfully litigated over the past two decades.

Medical aid in dying

Death is an inevitable reality. Throughout our lives, each of us will experience the deaths of loved ones and confront our own mortality. Given our role as healthcare providers, pharmacists frequently care for people who are dying, and we are trained to approach these patients with compassion and empathy while maintaining our clinical objectivity. Nonetheless, discussions about death continue to be excruciatingly difficult for patients, their families and friends, and healthcare professionals. Over the past 50 years—with the work of Elisabeth Kübler-Ross, the emergence of modern hospice care, establishment of patients’ and surrogates’ legal rights to refuse life-sustaining treatments, approval of the Patient Self-Determination Act of 1990, and passage of Death with Dignity laws—there has been more open dialogue about dying and death in society.1 In particular, over the past 20 years, beginning with the passage of Oregon’s first Death with Dignity referendum in 1994 and the subsequent U.S. Supreme Court rulings on the issue,2 the nation has been forced to engage, often with deep disagreements, in conversations surrounding end-of-life issues. Throughout this time frame, ASHP has provided a forum for these debates, and the pages of AJHP have included numerous articles on terminally ill patients’ decisions to end their lives with the support of the healthcare team. Last year, ASHP Councils, the ASHP House of Delegates, and the ASHP Board of Directors initiated a comprehensive and deliberative process to shape existing ASHP policy into a position on pharmacists’ participation in medical aid in dying.

The 9/11 Terror Cases: Constitutional Challenges in the War against Al Qaeda

In retrospect, it now seems obvious that the zealous counterterrorism policies pursued by the U.S. government in the aftermath of the September 11 terrorist attacks would provoke years of litigation—and, in some cases, sustained pushback from the federal courts. But as Allan A. Ryan explains in this usefully concise and succinct volume, that endgame was hardly obvious at the beginning, as government lawyers pushed the envelope not only on substantive authorities ranging from military detention and interrogation to surveillance and immigration roundups but more fundamentally on the role of the courts as well, arguing for an almost nonexistent judicial role in supervising counterterrorism policy. Ryan’s volume recounts the story behind, and rulings in, four major U.S. Supreme Court rulings militating rather sharply in the other direction, including a pair of 2004 decisions involving the government’s power to detain (and the courts’ power to review the detention of) enemy combatants; a 2006 ruling striking down the first iteration of the Guantánamo military commissions; and a landmark 2008 precedent rejecting efforts by Congress to prevent the courts from hearing habeas petitions from noncitizens held without trial at Guantánamo. Ryan’s book offers not just a fantastic and accessible exegesis of these complex rulings but a narrative of the stories behind these cases that illuminate their personal, political, and constitutional stakes.

Using Bankruptcy to Reduce Foreclosures: Does Strip-Down of Mortgages Affect the Mortgage Market?

We assess the credit market impact of mortgage “strip-down” -- reducing the principal of underwater residential mortgages to the current market value of the property for homeowners who file for bankruptcy under Chapter 7 or Chapter 13. Strip-down of residential mortgages in bankruptcy was proposed in 2009 as a means of reducing foreclosures during the Great Recession but was blocked by lenders on the grounds that it would greatly increase the cost of mortgage loans. Our goal is to test this hypothesis and determine whether the change would in fact have a large adverse impact on mortgage availability. Our identification is provided by a series of U.S. Court of Appeals decisions in the late 1980s and early 1990s that introduced mortgage strip-down under both bankruptcy Chapters in parts of the U.S., followed by two Supreme Court rulings that abolished mortgage strip-down all over the country. We find that neither the circuit court decisions to allow strip-down nor the Supreme Court decisions to abolish it had any significant effect on either mortgage availability or mortgage interest rates. The lack of systematic response suggests that, at least during normal economic times when bankruptcy and foreclosure rates are low, introducing mortgage strip-down under bankruptcy would not adversely affect mortgage loan availability and could be a useful new policy tool to reduce foreclosures.

What it Means to Do Gender Differently: Understanding Identity, Perceptions and Accomplishments in a Gendered World

Recent changes in policies, laws, and public opinion have brought discussions about gender and gender-related topics to the forefront of cultural discourse. In spite of increased acceptance of gender nonconformity in public laws and Supreme Court rulings, we continue to see acts of hostility towards people who express their gender in nontraditional ways on both macro-system and individual levels. Viewing questions surrounding the issues of gender through an identity-oriented lens may shed light on some aspects of this complex topic. The present research utilizes social psychological and gender theories in order to better understand and explore the apparent contradictions in the gender discourse. Through the analysis of survey data on gender identity gathered from a university student population, we seek to illuminate the complex interactions that occur between self-meanings, perceptions, and behaviors related to gender identities. Specifically, we analyze: 1) how self-views of gender relate to perceptions of non-conforming gender displays, 2) how self-views relate to doing gender differently and 3) how these variables relate to perceptions of inclusiveness and safety. We find that self-meanings seem to not relate to perceptions or experiences, but that doing gender differently is related to increases in experiences discrimination and aggressions as well as perceptions about safety and inclusion. Implications and future research options are also discussed.

The practice of prosecuting child maltreatment: Results of an online survey of prosecutors

Despite efforts by advocates, practitioners, and legislators to alleviate the burden on child maltreatment victims in the criminal justice system, many challenges remain for prosecutors as they seek to hold offenders accountable while minimizing the emotional impact on children. More than 200 state and local prosecutors in 37 states responded to an online survey to share their perspectives on current challenges, procedures to support children in the adjudication process, and the impact of the U.S. Supreme Court opinion in Crawford v. Washington (2004), sex offender registries, and "Safe Harbor" legislation to protect child sexual exploitation victims. Respondents' most pressing challenges were obtaining evidence to corroborate children's statements and the difficulties of working with child victims. Child testimony was ranked as more frequent than any other type of evidence, and least frequent were DNA, photos or videos of criminal acts, and other physical evidence. Prosecutors rely primarily on victim/witness assistants and courtroom tours to prepare children for testimony; technological alternatives are seldom used. Results suggest a real but limited impact of the Crawford opinion on the need for child testimony and on the decision to prosecute. Survey findings indicate a need for greater attention to thorough investigations with particular attention to corroboration. Doing so may strengthen the child's credibility, which is especially critical in cases lacking physical or medical evidence of maltreatment.

Italian Supreme Court rules that mere reproduction of Vespa image may amount to counterfeiting

Italian Supreme Court rules that mere reproduction of Vespa image may amount to counterfeiting

Pondering personal privacy: a pragmatic approach to the Fourth Amendment protection of privacy in the information age

As technology with surveillance capacities has advanced, the debate over the rights of the citizenry to be free from governmental breaches of personal privacy has intensified. Within the United States, government actions legally challenged as intrusions into personal privacy have been analyzed under the Fourth Amendment, but Supreme Court rulings in such cases lack a clear and consistent rationale. Additionally, while more than a dozen federal privacy statutes have been enacted, each piece of legislation pertains to a specific type of information (e.g. driver’s license information, education records, and financial records). There is no overarching federal legislation which protects the individual’s private affairs from warrantless government inspection. A key issue underlying the scope of the debate and the variation in court decisions and public policies pertinent to invasions of privacy by government agencies is the lack of a clear and cogent definition of ‘privacy.’ By means of a review of the evolution of legal protections of privacy under the Fourth Amendment and a review of the evolution of technology with surveillance applications, it is suggested that there is a need for a sound operational definition of privacy. As a starting point for an informed and pragmatic dialogue on this matter, an operational definition of privacy built upon extant case and statutory law is provided.

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.

Moore's Potential

This article was written as a contribution to the Fordham Law Review Symposium entitled Moore Kinship. It examines the various Supreme Court opinions in Moore v. City of East Cleveland to show how they foreshadow the tension between the growing desire of individuals to define “family” in terms of their own choosing and the state’s power to define what constitutes a legitimate family form and, thus, to decide who is entitled to state support. As the article notes, Moore is a methodologically conservative opinion that celebrates the traditional institution of the family through the vehicle of a grandmother-headed extended family. In this sense, Moore has much in common with Obergefell v. Hodges, which reconciled an alternative family with mainstream institutions. The various opinions in Moore saw the grandmother-headed family structure as a fallback option that served as a privatized form of insurance to provide for children in times of financial or other family stress. Thus, while crafting an opinion that does not challenge the deference due to land use decisions, the Justices also avoided laying a foundation for alternative families to claim state support in either practical or doctrinal terms. On the other hand, writing only for himself, Justice Stevens issued what is probably the most far-reaching opinion, concurring only in the judgment. While his concurrence is viewed as idiosyncratic, Stevens may well have anticipated later judicial developments in his desire to avoid a publicly imposed definition of family. He framed the case in terms of the arbitrariness of the city’s ordinance. He accorded Moore constitutional protection as a homeowner, rather than on the basis of her family form. Today, as much as in 1979, there is no agreement about whether the relationship between the constitution of family and the constitution of community should involve a red embrace of established values in the public square or a blue celebration of individual choice coupled with the construction of communities designed to support all of our children.

From Legal Theory to Practical Application: A How‐To for Performing Vote Dilution Analyses*

ObjectivesThe Supreme Court opinion in Thornburg v. Gingles three decades ago established a three‐prong test whereby a vote dilution claim can be substantiated. This article provides practitioners and social scientists with a working understanding of the operational steps involved in analyzing a vote dilution claim.MethodsA brief primer is offered on how to translate the Gingles preconditions into a set of practical, real‐world tests. At each stage, we buttress these explanations with examples from actual court proceedings.ResultsThis primer furnishes readers with the basic knowledge necessary to carry out a vote dilution analysis under the current legal standard.ConclusionWhile the generic process for conducting a test of vote dilution has been well‐defined by decades of case law, practitioners should be mindful that some aspects of these procedures will continue to be affected by future court proceedings.

A Comparative Examination of Unhealthy Behaviors and Negative-LGBT Experiences among Individuals in Legal Same-Sex Marriages and in Committed Same-Sex Relationships

Extant literature on different-sex marriage has widely demonstrated its beneficial and protective effects. Given that legal same-sex marriage has been available on a state-by-state basis only since 2004 starting with Massachusetts and nationwide since 2015 after the Supreme Court Ruling on Obergefell v. Hodges, it is imperative to understand if those in entering legal same-sex marriage are different from those who are not entering this institution. We identify unhealthy behaviors, such as binge drinking and not being faithful and negative LGB-experiences, such as stigma and bullying, to examine if those in legal same-sex marriage participate in these behaviors or have these experiences at different levels compared to those in committed relationships. Using a U.S. sample convenience (N = 158), represented strongly by the state of Texas, we found that those in legal marriages participated in unhealthy behaviors and experienced negative LGB-experiences at levels lower than those in committed relationships. Results from multivariate analyses, using Poisson’s regression model, indicate that being legally married as opposed to being in committed relationship reduced unhealthy behaviors and negative experiences after controlling for sociodemographic factors. We recommend further research on same-sex marriage because of its potential implications on health.

Brief of 44 Law, Economics and Business Professors as Amici Curiae in Support of Respondent in Impression Products, Inc. v. Lexmark International, Inc.

Patent transactions are a key component of technology markets, enabling patent owners and other firms to efficiently commercialize new technologies on the costly and risky path from “lab” to “market.” Mandatory patent exhaustion without the possibility of contractual waiver or modification substantially limits the range of possible transactions by precluding the enforcement via patent infringement actions of downstream restrictions relating to sales of patented products. Although mandatory patent exhaustion can mitigate problems of notice and related transaction costs, its categorical approach substantially reduces the static and dynamic benefits — including to consumers — of customized patent transactions. Instead, we support a presumptive approach to patent exhaustion, which allows contractual opt-out when clear notice is provided of a downstream limitation that is otherwise lawful. Such a rule best promotes the invention and commercialization goals of patent law and also is more consistent with the body of prior Supreme Court opinions. Thus, presumptive exhaustion should apply to domestic sales of patented products. Additionally, we argue that while there is little legal basis for exhaustion in the context of foreign sales, should the Supreme Court adopt an international exhaustion doctrine, it should be presumptive for similar reasons.