US Supreme Court Decision Research Articles

Should the Injustice Done to Her be the Law’s Concern? The Case of Cinderella

In this paper I draw on the fairy tale Cinderella to examine the distinction articulated in analytical jurisprudence between harm and injustice. I argue that the wrong done to Cinderella is an injustice, not a harm. While law is increasingly concerned with harms to children, it is persistently unconcerned with the injustices they suffer. This, I argue, is a mistake informed by a deeply gendered understanding of the distinction between the public and private realms. From Cinderella’s case, I turn to the US Supreme Court decision in Brown v. Board of Education and the settlement of the residential schools claims of Indigenous children in Canada to argue that the law ought not to take the view that injustice to children is not legally cognizable unless and until it can be conceptually transposed into harm. Injustice to children ought particularly to engage the law’s concern where (as in both school segregation in the US and the residential schools in Canada) state action is directly responsible for the injustice in question.

Sometimes Sex Is Just a Pain in the Ass; Or, the Paradox of Sexual Politics

In the wake of the US Supreme Court decision in Obergefell et al. v. Hodges, US citizens can now claim a right to marriage without regard to their genital anatomy. No doubt this genital indiscrimination has much to recommend it. Yet we might wonder why this achievement represents the culmination of almost fifty years of sexual politics. To answer this question, the essay returns Guy Hocquenghem’s seminal 1972 text Homosexual Desire to consider the latent friction between sexual and politics that Hocquenghem identifies and that continues to characterize our contemporary moment. It then situates Hocquenghem’s text in relation to Michel Foucault’s reflections about origins of politics in ancient Greek in his first lecture course at the Collège de France, which took place the year before Hocquenghem’s book appeared, to suggest that the relation between the sexual and the political may inevitably entail paradox.

Opportunity and Overrides: The Effect of Institutional Public Support on Congressional Overrides of Supreme Court Decisions

Existing theories of legislative-judicial relations emphasize the role of public support for the judiciary on the likelihood of legislative compliance. Although Congress can strengthen or weaken the Supreme Court’s decisions after initial compliance, the role of public support for the judiciary on subsequent legislative action is unclear. We develop a theory of legislative-judicial interactions, which suggests that Congress considers the court’s current level of public support when determining whether to override a Supreme Court decision. We test our theory using data on congressional overrides of US Supreme Court decisions, finding that high levels of public support for the court shield the court from hostile congressional action. The results underscore the vital role played by the public in interbranch relations, suggesting that public support plays a role in the legacy of a judicial decision beyond ensuring initial compliance.

Did the Trumpian Counterpublic Dissent against the Dominant Model of Campaign Finance?

Trumpism poses a difficult challenge for counterpublic scholarship: should forms of right-nationalism dissenting against dominant publicity be analysed using the same concepts as other types of dissent? This article argues that Trumpism demonstrated counterpublic dissent against dominant campaign finance publicity by criticising the influence of wealthy donors in both political parties. Trumpism also offered an alternative to the dominant logic of necessary ethical compromise shaping publicity about campaign finance in the wake of the 2010 Citizens United US Supreme Court decision. However, Trumpism failed to foster greater democracy because of the way it posed Trump himself as the only necessary solution to the problems of plutocracy. Counterpublic theory should revisit the way it balances its normative and empirical dimensions to account for the rise of radical-right nationalisms and their publicity outlets.

Combatting the ‘Communistic-Mulatto Inspired Movement to Fuse the Two Ethnic Groups’: The Mississippi State Sovereignty Commission, Sickled Cells, and Segregationists’ Science in the Atomic Age

Using the correspondence of George McIlhenny and Mississippi State Sovereignty Commission records as evidence, this article examines how state-sponsored segregationists manipulated developing knowledge of the genetics of sickle cell anaemia and Cold War rhetoric of American anti-communism to defy the 1954 US Supreme Court decision mandating racial desegregation in schools. The Commission benefitted from this moment when germ theory placed science beyond lay understanding, increasing its authority and potential for misrepresentation. The evidence reveals and enlarges our understanding of the logistics of medicalisation within a racial frame. It demonstrates state-level confidence in appeals to science as a source of authority sufficient to challenge Federal law. It shows how the mere appearance of familiarity with the developing subfield of genetics sufficed to place science in the service of racial segregation. Finally, it illustrates both the potential and the limits of these measures in the changing context of medicine and medical professionalisation.

A study on the issue of the Lexmark judgment of the United States Federal Circuit of Appeals (CAFC)

이 논문은 미국 연방항소순회법원의 Lexmark판결을 살펴봄으로써, 미국 법원의 특허 국제 소진에 관한 입장을 살펴보고자 하였다. 그동안 미국은 연방항소순회법원을 중심으로 친특허적 정책을 취해 오면서, 특허의 국제소진에 대하여 부정적 입장을 견지해 오고 있었고, Lexmark판결에서도 특허의 국제소진을 부정하였다. 그러나 최근 연방대법원이 Kirtsaeng판결을 통하여 저작권의 국제소진을 인정하는 한편, 연방항소순회법원의 친특허적 경향에 대하 여 일정한 제한을 취하고 있어, Lexmark사건에 대하여 어떠한 판결을 내릴지에 대하여 관심 이 모아지고 있다. 연방대법원은 Quanta 판결에서 특허권자의 권리 보장 못지않게 공공의 이익도 중시하여야 한다는 입장을 취하면서, 특허소진원칙에 대한 정책적 판단은 입법부에서 판단하는 것이 바람 직하다는 입장을 취하였다. 그러나 Quanta에서 내려진 연방대법원의 입장도 그다지 연방항소 순회법원의 기존의 입장에서 크게 벗어나는 것은 아닌 것으로 보인다. 조건부 판매원칙에 대 한 양 판결의 결론의 차이에도 불구하고, 두 판결 모두 판매계약 또는 라이선스 계약상 명백 한 조건의 설정과 상대방, 즉 구매자나 실시권자의 명시적 동의는 특허소진을 배제할 수 있다 는 입장을 취하고 있다. 다만 연방대법원은 여기에 공공정책적 고려도 필요하다고 하였고, 연 방항소순회법원은 그 조건이 반독점법에 저촉되거나, 권한 남용이 되는 경우에는 효력이 없는 것으로 판단하고 있다. 한편 미국은 특허법상 권리소진조항이 없으므로 이를 실정법에 근거하여 인정할 수는 없으나, Kirtsaeng판결에서 연방대법원은 소진원칙이 보통법에서부터 연원한 것으로서 이에 근거 하여 국제소진이 인정될 수 있다고 보았으므로, 이것이 향후 Lexmark판결에 어떤 영향을 끼 칠 수 있을 것인지 관심이 모아지고 있다. 미국의 국제소진에 대한 입장의 변화가 국제사회에 서 통일된 국제기준을 확립하는데 있어 중요한 역할을 할 것이라 본다.2016. 2. The US Court of Appeals for the Federal Circuit (“CAFC”) denied patent exhaustion in Lexmark s patents with en banc. The patent exhaustion theory is that after the patent holder sells the patented product, the patent right for the patented product disappears. Therefore, the assignee of the patented product can freely transfer or dispose of it. Since the 1980s, CAFC has been reducing its coverage of patent exhaustion while strengthening its patent policy based on its expertise. Particularly the reduction of the scope of exhaustion through contracts, and the denial of the patent exhaustion of method patents. In the 2000s, the US Supreme Court ruled Quanta Quanta Comp. V. LG Eletronics, criticized this attitude of the CAFC, and gave the impression that it was returning to the passion of the judiciary for patent policy. However, the CAFC still has a patent policy in mind, and Lexmark overruled that Quanta Comp. Quanta Comp. V. LG Eletronics. The Lexmark ruling shows the CAFC s pro-patent position in relation to exhaustion in two respects. First, the principle of patent exhaustion can be circumvented by conditional sale. Second, the patent does not cause international exhaustion. Under the terms of the Quanta judgment, the Supreme Court ruled that patentees could no longer exercise their patents on the product after the initial sale of the patented product, regardless of whether or not it was conditional, Decision was made against the Quanta judgment of the Supreme Court by determining that the post-sale restriction could exclude the exhaustion of the patent right. Next, in connection with the international exhaustion of patents, the CAFC issued a ruling denying it. The US lower court case is divided on the international exhaustion of patents, but Jazz Photo v. Jazz Photo v. International Trade Commission. Since then, the United States has denied the international exhaustion of patents. Nonetheless, the need to acknowledge the international exhaustion of patents has been reexamined since the Supreme Court recently recognized the alienation of copyrights. The case has drawn attention to whether the US Supreme Court will extend patents to Kirtsaeng s international copyright claims. In this paper, we examine CAFC s rulings on Lexmark s case and examine the controversial two issues: the controversial CAFC and federal Supreme Court decisions on conditional sales theory and international exhaustion, I will discuss the direction and implications of the US Supreme Court decision in the future.

Peer Effects on the United States Supreme Court

Using data on essentially every US Supreme Court decision since 1946, we estimate a model of peer effects on the Court. We consider both the impact of justice ideology and justice votes on the votes of their peers. To identify these peer effects we use two instruments. The first is based on the composition of the Court, determined by which justices sit on which cases due to recusals or health reasons for not sitting. The second utilizes the fact that many justices previously sat on Federal Circuit Courts and are empirically much more likely to affirm decisions from their “home” court. We find large peer effects. Replacing a single justice with one who votes in a conservative direction 10 percentage points more frequently increases the probability that each other justice votes conservative by 1.63 percentage points. In terms of votes, a 10 percentage point increase in the probability that a single justice votes conservative leads to a 1.1 percentage increase in the probability that each other justice votes conservative. Finally, a single justice becoming 10% more likely to vote conservative increases the share of cases with a conservative outcome by 3.6 percentage points – excluding the direct effect of that justice – and reduces the share with a liberal outcome by 3.2 percentage points. In general, the indirect effect of a justice’s vote on the outcome through the votes of their peers is typically several times larger than the direct mechanical effect of the justice’s own vote.

Law and Collective Identity. Religious Freedom in the Public Sphere

Does religion represent a threat to public life and freedom of individuals or perhaps an opportunity for integral development that stems from care for the state as the common good? Christianity does not regard faith as a private matter. It must enjoy freedom in the public sphere. Therefore, assuming that state regulations have no concealed or overtly anti-religious bias, they are certain to entail endeavours to set the barely defi nable boundaries of the permissible and the impermissible. Richard John Neuhaus proved that the naked square is an illusion, an imposture rather than an opportunity or a decent objective. Public life, as any other kind of existence, abhors vacuum. The calls for confi ning religion to the private sphere are always to be a failure for the health of the public life. The freedom of religion, as any other freedom, is a challenge that requires defense and price to be paid by nations and individuals. The specific and true cases demonstrate that the numerous antireligious metaphors are not matched by the actual experience. The US Supreme Court decision in Zubik v. Burwell is thoroughly discussed below to give a clear and the most recent example of complexity of both the issue and possible ways of resolving controversies on various aspects of religious freedom.

Issue Divisions and US Supreme Court Decision Making

Majority opinions are the most important output of the US Supreme Court, not only disposing the instant case but also providing guidance for other institutions, lower courts, and litigants as to the state of the law. The authoring of dissenting opinions, though, is frequently regarded as deleterious to the Court’s institutional legitimacy and the efficacy of the majority opinion. Leveraging the content of all Court opinions between 1979 and 2009, I argue dissenting justices use dissenting opinions to strategically alter the issue dimensions addressed in the majority opinion. An examination of the effect of separate opinion content on majority opinions indicates dissenting opinions yield majority opinions addressing a greater number of topics, and I provide evidence that the dynamic is driven by the strategic behavior of dissenting justices seeking to realign the Court.

A successful software patent [Patent Reviews

Recently the US Supreme Court, in "Alice Corporation v. CLS Bank International," defined a two-step process for determining if a software claim is eligible for patenting. The first step is to determine whether the claim is directed to a patent-ineligible concept, such as an abstract idea. Other ineligible concepts are laws of nature and natural phenomena, but software's ineligibility usually arises from a finding of abstractness, so this will be our focus. If it is found that a patent claim is directed to an abstract idea, the second step is to determine whether the elements of the claim, both individually and as an ordered combination, transform the claim into a patent-eligible application. Surviving the analysis of the US Supreme Court's decision in 'Alice' does not complete a patent's journey to success. It must also pass the other tests for patentability. In another recent decision, "Enfish, LLC v. Microsoft Corporation," the US Court of Appeals for the Federal Circuit found that claims to a logical model for a computer database did not conflict with the Alice test for abstractness. For software patentees, amid a flurry of bad news, decisions like 'Enfish' provide hope that, perhaps, some software inventions can continue to be patented.

Introduction to the Special Issue: New Media, Old Money: Digital Technology, Social Media, and the Challenges to Campaigning and Democracy

Electronic media have played a central role in politics almost since their introduction. The role of media in election campaigns is often seen as the origin of media and communication studies. The variety of political systems worldwide, the wide range of media systems that operate within them, and the extensive array of regulatory schemes that govern this association raise thought-provoking questions about the role of media in democracy. The media–politics–capital triad has raised concerns about the effect of money on the health and fairness of political and media structures. The use of digital technologies and collaborative media has now become a critical part of these complex relationships.Increasingly, political campaigns are built around digital strategies rather than traditional broadcast ad buys. The Internet offers many additional groups cheap access to the public sphere and new possibilities for information and discussion. Accordingly, much of the most “impactful” money is spent “online,” calling on expertise in building networks, conversations, and communities using social networking platforms, combined with applications designed to amplify messaging. At the same time, volunteers and users generate their own content. In addition, the ability to find, analyze, and apply personal information from “big data” is becoming more important than market research and the focus has shifted to the development of comprehensive social media strategies for young, ethnic, gendered, and special interest groups. Finally, legacy media and their traditional business models are affected by change as well, raising questions about implications of the Internet for journalism and democracy.As a result, any current understanding of campaign spending and political communication must incorporate not just traditional advertising, but equal spending on Internet and social networking platforms, and the use of information technologies to identify and reach voters through multiple platforms. The same “Old Money” is being used to try to gain influence, but new media offer new approaches both to enhance and conceal its effects. Moreover, the same media brands with the same powerful owners prevail online as well.In order to discuss these issues, the Institute for Information Policy at Penn State, the Department of Communication and Media Research at the University of Fribourg, and the Journal of Information Policy held a two-day workshop at the Embassy of Switzerland in Washington, DC, in September 2015. The three articles presented in this special issue were first presented at that workshop.In the first, Linards Udris, Mark Eisenegger, and Jörg Schneider examine whether money talks in political campaign coverage, using the unique Swiss system of direct-democratic campaigns as their context. They conclude that votes involving expensive campaigns and populist proposals correlate with high media attention, favoring large parties—in the Swiss case, the populist right-wing Swiss People's Party. With the addition of the effect of the media's self-interests, the result is that the news media in Switzerland fail to cover a truly wide diversity of actors and topics.In the next article, Christopher Ali takes a broad view on the value of local journalism for political discourse. He argues that while local journalism is often categorized as a public good, the discourse of public goods is insufficient to fully capture their social democratic importance. He proposes to regard them as merit goods, which may lead to increased regulatory support for their sustenance and encourage efforts to support their viability.In the final contribution, John Fortunato and Shannon Martin discuss how the agenda-setting function of the media has transformed with the rise in importance of social media networking applications as purveyors of political communications, as well as as a result of the makeover of campaign financing practices following the US Supreme Court decision in Citizens United. Both changes have made political advertising more central in setting the agenda.

“The Indians of every denomination were free, and independent of us”: Anglo-Virginian explorations of indigenous slavery, freedom, and society, 1772–1830

ABSTRACTIn arguing against Indian slavery, plaintiff’s attorneys in the 1772 Virginia General Court case Robin v Hardaway faced a dilemma: how could they condemn enslavement while mollifying public conviction that Indigenous “savagery” made them dangerous to community stability? Their solution, rooted in a nearly two-century discourse of slavery and freedom, was to insist that Indians derived from independent polities (unlike other enslaved communities). As such, they were both inherently free and outside the evolving Anglo-American body politic, and whites could legitimately deprive them of property, happiness, and safety. Subsequent Virginia freedom cases contributed to the discourse employed in Robin, as did early-nineteenth-century US Supreme Court decisions. It came to underpin civilization policies as well as removal, once older understandings of Anglo-American “civility” became untenable to Southern whites.

Money, Campaign Finance and Elections A Case Study of the US Federal Elections

The influence of corporations and interest groups on US elections is a much-debated issue. The issue became more pronounced after the 2010 Citizens United V. Federal Election Commission US Supreme Court decision. In this study, we analyze changing patterns of US election contributions and federal election outcomes. For our study, we used data from FEC database for federal elections held between years 2002 and 2014. We use Difference-in-Difference and instrumental variables (IV) to measure the net effect of 2010 court decision on election contributions and their subsequent influence on election outcomes.

Sexuality and aging: a focus on lesbian, gay, bisexual, and transgender (LGBT) needs in palliative and end of life care.

Sex and sexuality are core components of the human experience. Many older adults and people with terminal illness still consider sexuality important in their lives. The palliative care experiences of lesbian, gay, bisexual, and transgender (LGBT) persons are unique in a number of important ways with regard to sexuality and sexual expression. To date, there has been relatively limited scholarly research on sexual health needs of people in palliative care and near end of life, and an even greater paucity of data specifically about sexual minorities. Forms of sexual expression may change with advancing age and illness. Physical intimacy and emotional connection may take on greater roles compared with more traditional concepts of sexual activity. Several recent studies have examined sexual health in palliative care and a few have examined LGBT cohorts. Advances in public policy, including the recent US Supreme Court decision regarding marriage equality, have continued to shape the cultural landscape for LGBT people. This article reviews recent literature with considerations for future research. Sexuality and intimacy remain important for many people facing terminal illness. LGBT people face unique challenges with regard to sexuality during palliative care. Clinicians should work to avoid heteronormative stereotypes and focus on goals of care to enhance quality of life for all patients.

Persistent confusion and controversy surrounding gene patents.

The development of patent-specific educational resources and prompt resolution of patentability rules unsettled by recent US Supreme Court decisions are urgently needed in the genomics industry.

Using courts of law to tackle poverty and social exclusion: The case of post-2010 Kenya

Intellectual and political skepticism about the place of the courts in effecting social transformation is not uncommon. In The Hollow Hope, American scholar Gerald Rosenberg strongly criticised the famous US Supreme Court decision in Brown v Board of Education and asserted that it was nearly impossible to generate significant social reforms through litigation, primarily because courts are relatively ineffective and weak. He also argued that courts pale into significance in comparison with other social and political forces, such as, a reforming parliament, a foresighted Executive or a determined civil society. Just as Hitler asked the Pope: where are your battalions? courts lack the financial muscle or the political authority to effect change on their own, thereby attracting a similar kind of cynicism and doubt.

One Step Forward, Two Steps Backwards: A General Analysis of the US Supreme Court's Decisions in the Enemy Combatantss Cases

As we seem to be witnessing the last chapters of the closure of the Guantanamo detention camps, we are compelled to evaluate the successes and the failures of the US Supreme Court’s decisions on the cases emerging from Guantanamo bay. Such an assessment is vital in that it enables us to establish an emerging pattern in the modalities of the interaction between the judiciary and the executive in the Twenty First century. My paper will seek to scrutinise two main dimensions of the Guantanamo cases, namely, procedural and substantive restraints put on the detention powers of the US executive by the US Supreme Court. On the account of a detailed analysis of the aforementioned dimensions, and with a view to the implications of these decisions for the future judgements of a similar nature, I will conclude that whilst the US Supreme Court showed a great degree of fortitude in upholding some procedural safeguards for the Guantanamo detainees, its overall conduct fell a long way short of putting substantive restraints on the authority of the US executive.

The Two Browns: Policy Implementation and the Retrenchment of Brown v. Board of Education

The colorblind individualism that pervades American politics and society keeps schools segregated although Americans support integrated public education. While the 1954 US Supreme Court decision Brown v. Board of Education has never been overruled, later cases and policies have encouraged its retrenchment. We argue in this multi-disciplinary review of published literature that there are two different versions of Brown—the iconic, pro-integration symbol supported by most Americans, and a formal, juridical requirement that permits continued school segregation. The formal, juridical Brown is supported by the implementation of multiple educational policies, particularly neighborhood schools, magnet schools, and charter schools, all built on the firm belief that there is no violation of Brown. Rather than promoting a vision of Brown that champions a strong integration goal, these policies bolster the second interpretation of Brown: one that allows segregation to occur, so long as it is not outwardly deliberate.

'Life's Hurried Tangled Road': A Therapeutic Jurisprudence Analysis of Why Dedicated Counsel Must Be Assigned to Represent Persons with Mental Disabilities in Community Settings

This paper will be published as part of a symposium issue of Behavioral Sciences and Law.Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. Wainwright and Argersinger v. Hamlin, and in state statutes and court cases implementing these US Supreme Court decisions. Such representation would best fulfill the Supreme Court’s goal of “restor[ing] constitutional principles established to achieve a fair system of justice” and ensuring that “every defendant stands equal before the law,” (Gideon, 372 U.S. 335, 344 (1963)) and would make it far less likely that this population would end up in jail or prison on minor, nuisance charges, as is so frequently the case today. We believe that without this mandated representation, we will not be able to reverse the current state of affairs that results in the wholesale institutionalization of this population; further, without this mandated representation, it is far from likely that this population will ever be able to enjoy meaningful freedom in community settings, as they will inevitably face the ongoing and deadeningly-familiar cycle of arrest-institutionalization-release-arrest-institutionalization. In this paper, we will show how the current state of affairs further flies in the face of all precepts of therapeutic jurisprudence, a legal theory that seeks to reshape legal rules, procedures, and lawyer roles to enhance their therapeutic potential while not subordinating due process principles, in accordance with the key principles of voice, validation and voluntariness. In this paper, we make the following arguments:• There is a shocking lack of such counsel available to persons with mental disabilities in community settings. No state currently provides regularized and dedicated counsel to this population, and without the presence of such counsel, it is likely that the massive changes in the law and in the operations of state hospital systems will not be replicated in the community.• The issues here are exacerbated in cases involving persons enmeshed in the criminal justice system, a cohort that generally has little access to meaningful counsel. Even the most salutary solutions (e.g., the Memphis model) fail to provide counsel for this population at the “drop off centers” that are often mandated by such programs.• As indicated above, “voice, validation and voluntariness” are now universally seen as the core therapeutic jurisprudence values; the current system – in which the population discussed in this paper – has no access to dedicated, effective counsel – insures that these mandates cannot be met.• To remediate this situation, we recommend:o TJ must be integrated into all community practices, with a special focus on the need to mandate the right to counsel as “the core of therapeutic jurisprudence”; o Communities must learn from the experiences where a TJ-centric approach has been tried, focusing on the successes and failures of the Protection and Advocacy Systems so as to better mold a regulatory scheme for provision of counsel in the community;o Counsel must be provided to this population where they will be in the community –the development of drop-off centers as part of the New York Police Department’s crisis intervention program is an important starting point at which to make this connection;o Systems must be put in place to ensure quality; competent, effective counsel for this population is a requirement, not only because of the difficult, intractable legal issues faced but because of the omnipresent biases that come from this population’s association with the mental health system and the criminal justice system, and the resultant taint of sanism (the irrational and stigmatizing prejudice faced by persons with mental disabilities enmeshed in the criminal justice system, and often exhibited by their own attorneys).

Conscientious Objection in Healthcare Provision: A New Dimension.

The right to conscientious objection in the provision of healthcare is the subject of a lengthy, heated and controversial debate. Recently, a new dimension was added to this debate by the US Supreme Court's decision in Burwell vs. Hobby Lobby et al. which effectively granted rights to freedom of conscience to private, for-profit corporations. In light of this paradigm shift, we examine one of the most contentious points within this debate, the impact of granting conscience exemptions to healthcare providers on the ability of women to enjoy their rights to reproductive autonomy. We argue that the exemptions demanded by objecting healthcare providers cannot be justified on the liberal, pluralist grounds on which they are based, and impose unjustifiable costs on both individual persons, and society as a whole. In doing so, we draw attention to a worrying trend in healthcare policy in Europe and the United States to undermine women's rights to reproductive autonomy by prioritizing the rights of ideologically motivated service providers to an unjustifiably broad form of freedom of conscience.