Showing papers on "Supreme Court Decisions published in 2013"

The influence of neuroscience on US Supreme Court decisions about adolescents' criminal culpability

Abstract: In the past 8 years, the US Supreme Court has issued landmark opinions in three cases that involved the criminal culpability of juveniles. In the most recent case, in 2012, a ruling prohibited states from mandating life without parole for crimes committed by minors. In these cases, the Court drew on scientific studies of the adolescent brain in concluding that adolescents, by virtue of their inherent psychological and neurobiological immaturity, are not as responsible for their behaviour as adults. This article discusses the Court's rationale in these cases and the role of scientific evidence about adolescent brain development in its decisions. I conclude that the neuroscientific evidence was probably persuasive to the Court not because it revealed something new about the nature of adolescence but precisely because it aligned with common sense and behavioural science.

Why states expand Medicaid: party, resources, and history.

Abstract: After the passage of the Patient Protection and Affordable Care Act in March 2010 and the affirmation of its constitutionality by the Supreme Court in 2012, key decisions about the implementation of health care reform are now in the hands of states. But our understanding of these decisions is hampered by simplistic sortings of state directions into two or three simple, rigid categories. This article takes a different approach--it tracks the variations in relative state progress in implementing Medicaid expansion across a continuum of activities and steps in the decision-making process. This new measure reveals wide variation not only among states that have adopted Medicaid expansion but also among those that have rejected it but have also made progress. We use this new measure to spotlight cross-pressured Republican states that have adopted Medicaid expansion or have prepared to move forward and to explore possible explanations for implementation that extend beyond a simple focus on party control.

Gene Patenting—The Supreme Court Finally Speaks

Abstract: In June 2013, the U.S. Supreme Court unanimously ruled that the patents on BRCA1 and BRCA2 held by Myriad were not valid because human genes are products of nature and therefore not patentable. The authors discuss the implications of this long-awaited decision.

Gene Patents and Personalized Cancer Care: Impact of the Myriad Case on Clinical Oncology

Abstract: Genomic discoveries have transformed the practice of oncology and cancer prevention. Diagnostic and therapeutic advances based on cancer genomics developed during a time when it was possible to patent genes. A case before the Supreme Court, Association for Molecular Pathology v Myriad Genetics, Inc seeks to overturn patents on isolated genes. Although the outcomes are uncertain, it is suggested here that the Supreme Court decision will have few immediate effects on oncology practice or research but may have more significant long-term impact. The Federal Circuit court has already rejected Myriad's broad diagnostic methods claims, and this is not affected by the Supreme Court decision. Isolated DNA patents were already becoming obsolete on scientific grounds, in an era when human DNA sequence is public knowledge and because modern methods of next-generation sequencing need not involve isolated DNA. The Association for Molecular Pathology v Myriad Supreme Court decision will have limited impact on new drug development, as new drug patents usually involve cellular methods. A nuanced Supreme Court decision acknowledging the scientific distinction between synthetic cDNA and genomic DNA will further mitigate any adverse impact. A Supreme Court decision to include or exclude all types of DNA from patent eligibility could impact future incentives for genomic discovery as well as the future delivery of medical care. Whatever the outcome of this important case, it is important that judicial and legislative actions in this area maximize genomic discovery while also ensuring patients' access to personalized cancer care.

U.S. Governors and the Medicaid Expansion — No Quick Resolution in Sight

Abstract: Since the Supreme Court ruling on the Affordable Care Act, states have been grappling with the question of whether to participate in the expansion of Medicaid eligibility. In the aftermath of the 2012 election, how this process will play out is uncertain.

Surveying Difficult Populations: Lessons Learned from a National Survey of State Trial Court Judges*

Abstract: Surveying trial court judges presents a variety of serious challenges, but recent Supreme Court decisions and the use of increasingly complex scientific evidence in trials make it necessary to assess trial judges’ knowledge and views of scientific evidence. In this article, we describe a successful nationwide survey of state trial court judges. Response rates were high, and the information obtained was valuable. Rigorous attention to detail and to proper methodology at every step is important; i.e., knowledge of the topic being investigated and the respondents’ circumstances; creation and assessment of questionnaires; construction and assessment of the codebook; training and assessment of interviewers and coders; creation of analysis plans; and flexibility. This kind of care of is costly and effortful, but it can make the difference between a successful survey and a waste of time and money. There are many compelling reasons to study the judiciary. However, judges are often perceived by researchers and those who fund research as difficult to study. Reasons for this perception of difficulty probably include the high status and professional remoteness of the judiciary in American society, judicial time constraints, assumed resentment or unwillingness to be tested, concerns by judges about confidentiality of responses, and perhaps a distrust, dislike, or perceived irrelevance of social and behavioral science and scientists. 1 The perception that judges are difficult to study can have negative consequences

Transparency tools in gene patenting for informing policy and practice.

Abstract: The Supreme Court's decision in Myriad highlights the need for tools enabling nuanced and precise analysis of gene patents at the global level.

“It’s the Network”: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court

Abstract: This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing the epistemic community framework, it demonstrates how network members, acting as amici curiae, litigators, academics, and judges worked to transmit intellectual capital to Supreme Court decision makers in 12 federalism and separation of powers cases decided between 1983 and 2001. It finds that Federalist Society members were most successful in diffusing ideas into Supreme Court opinions in cases where doctrinal distance was greatest; that is, cases where the Supreme Court moved the farthest from its established constitutional framework.

Antitrust's Rule of Reason: Only Competition Matters

Abstract: The rule of reason is the standard for testing whether a restraint of trade violates the Sherman Act. The thesis of this article is that the only issue under the rule of reason is the impact of a restraint on the competitive process; the Sherman Act does not employ a welfare standard. This thesis is developed first by clarifying welfare concepts, explaining how the views of Robert Bork have been misrepresented, and examining the relationship between the Sherman Act's goal and its liability standard. The article then reviews Supreme Court decisions articulating and explicating the rule of reason to show that the Court's focus has been on the competitive process rather than welfare. The article also outlines the application of the rule of reason using impact on the competitive process as the test for legality. Finally, the article shows that Sherman Act cases cited by scholars as adopting or implying a welfare standard actually do no such thing.

Ignoring the data and endangering children: why the mature minor standard for medical decision making must be abandoned.

Abstract: In Roper v. Simmons (2005) the United States Supreme Court announced a paradigm shift in jurisprudence. Drawing specifically on mounting scientific evidence that adolescents are qualitatively different from adults in their decision-making capacities, the Supreme Court recognized that adolescents are not adults in all but age. The Court concluded that the overwhelming weight of the psychological and neurophysiological data regarding brain maturation supports the conclusion that adolescents are qualitatively different types of agents than adult persons. The Supreme Court further solidified its position regarding adolescents as less than fully mature and responsible decisionmakers in Graham v. Florida (2010) and Miller v. Alabama (2012). In each case, the Court concluded that the scientific evidence does not support the conclusion that children under 18 years of age possess adult capacities for personal agency, rationality, and mature choice. This study explores the implications of the Supreme Court decisions in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama for the "mature minor" standard for medical decision making. It argues that the Supreme Court's holdings in Roper, Graham, and Miller require no less than a radical reassessment of how healthcare institutions, courts of law, and public policy are obliged to regard minors as medical decisionmakers. The "mature minor" standard for medical decision making must be abandoned.

Punctuated Equilibrium and the Supreme Court

Abstract: In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.

Punctuated Equilibrium and the Supreme Court

Abstract: In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change — here conceptualized as changes in what precedents the Supreme Court most often cites — is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.

The Sell effect: involuntary medication treatment is a "clear and convincing" success.

Abstract: The Supreme Court ruling Sell v. United States in 2003 (539 U.S. 166) set a new precedent by mandating federal judges function as decision makers on the issue of whether “nondangerous” incompetent defendants charged with federal crimes can be involuntarily medicated to restore their competency to stand trial. To provide data to inform future opinions by mental health professionals and decisions for judges involved in these matters, a retrospective record review of all incompetent defendants in the entire U.S. federal court system (N 132) involuntarily treated under Sell over a 6-year period was conducted. Results indicated the majority (79%) of treated defendants suffering from a psychotic related illness were sufficiently improved to be rendered competent to stand trial, surpassing the “clear and convincing” standard established by federal appellate courts. High rates of treatment responsiveness were found across all diagnoses.

Sound Policy Trumps Politics: States Should Expand Medicaid

Abstract: By virtue of the Supreme Court's decision on the constitutionality of the Patient Protection and Affordable Care Act, states may reject the law's expansion of Medicaid without losing all Medicaid funding from the federal government. The Court's ruling potentially permits a range of Medicaid options for states, including some that may be very attractive from state officials' political perspectives. In the context of the presidential campaign, the uncompensated care problem, and their concerns about costs of expansion, state officials are weighing their options, and some have already pledged to opt out of expansion. We argue that despite the politics, expansion is in fact good for patients, providers, and taxpayers, and states should therefore comply.

Historic Times v. Sullivan and Gertz v. Welch Supreme Court Decisions and Online Social Media Libel Law

Abstract: This article re-examines two historic Supreme Court’s decisions—the 1964 Times v. Sullivan and the 1974 Gertz v. Welch—as they apply to the digital era. The Court’s decision in Sullivan established the federal legal guidelines for a victim to prove a libel case including actual malice. In Gertz v. Welch the Court established three categories of public figures who must prove actual malice in a libel claim. The article reviews both cases within the context of social media defamation claims. The authors conclude that the Supreme Court decisions in Times v. Sullivan and Gertz v. Welch are still relevant in the era of online communication and social media.

Microsimulation of private health insurance and medicaid take-up following the U.S. Supreme Court decision upholding the affordable care act

Abstract: On June 28, 2012, the Supreme Court of the United States (SCOTUS) upheld most of the provisions of the Patient Protection and Affordable Care Act and the health care provisions of the Health Care and Education Reconciliation Act (P.L. 111-148 and P.L. 111-152; henceforth referred to as the ACA).1 Starting in 2014, individuals without an offer of insurance from their employer and small businesses will be able to buy insurance on state and federal exchanges, with premium subsidies depending on their incomes. Certain employers that do not offer health insurance will be penalized, and individuals will be required to have coverage or pay a penalty. At the same time, however, the Supreme Court ruled that states could opt out of the ACA expansion of Medicaid coverage for all individuals up to age 65 with incomes less than 133 percent of poverty. Under the ACA as enacted, but before the Supreme Court ruling, the Medicaid expansion was mandatory for states that wanted to keep their federal matching funds for any part of the Medicaid program. The Supreme Court's decision immediately raised the prospect that some states might opt out of the Medicaid expansion. The U.S. Congressional Budget Office (CBO 2012) estimated that 6 million people previously covered by the Medicaid expansion in its March 2012 baseline would not be covered; some of these would enroll in exchanges, but the number of uninsured people would rise by 4 million. Our research has two goals. First, we predict how many people will take up private health insurance under provisions of the ACA. Second, we predict Medicaid take-up under several possible patterns for states opting out of the Medicaid expansion. Unlike the CBO, which did not make estimates for specific states but instead utilized average probabilities of opting out, we make predictions for specific states.2 We also predict enrollment in specific types of private plans (e.g., the “metallic” plans offered in health insurance exchanges). We find the ACA will increase coverage substantially in the private health insurance market and Medicaid. However, if states opt out of the Medicaid expansion, this could increase the federal cost of health reform, while reducing the number of newly covered lives. If six states (Florida, Louisiana, Mississippi, Nebraska, South Carolina, and Texas) opt out, the number of uninsured people will increase by 7.9 million with a drop in Medicaid coverage of 4.4 million by 2021, compared with the pre-SCOTUS situation. Our predictions are based on a microsimulation model of health plan choice that we originally developed to predict the effect of the Medicare Modernization Act of 2003 (MMA) on take-up of high-deductible health plans in the individual health insurance market (Feldman et al. 2005; Parente et al. 2005).3 We begin the study with a section that describes the model. This is followed by our simulation of the ACA effects on private health insurance and Medicaid take-up.

Moving Beyond “Isolated” Gene Patents

Abstract: The U.S. Supreme Court decides that not all gene patents are alike—what does this mean for research, innovation, business, and patients?

I Respectfully Dissent: Linking Judicial Voting Behavior, Media Coverage, and Public Responses in the Study of U.S. Supreme Court Decisions.

Abstract: .................................................................................................. viii

Supreme Court Ruling Broadens BRCA Testing Options

Abstract: The day after Mother’s Day, actress Angelina Jolie wrote an op-ed in the New York Times revealing her decision to undergo a double mastectomy after learning that she carries a deleterious mutation in the BRCA1 gene. Jolie and women like her who have certain germ-line BRCA1 or BRCA2 mutations are at higher risk for breast and ovarian cancers. Jolie, whose mother died from ovarian cancer, said she wanted other women who may have a familial history of these cancers to be aware of their genetic testing options. She also highlighted that not all women can afford the $3,000 individual risk assessment the test offers. The predictive genetic test that screens for mutations in both BRCA genes has been available only through Utah-based Myriad Genetics, a molecular diagnostics company that holds patents on the BRCA genes. But the Supreme Court has lifted what was a monopoly on BRCA genetic testing, invalidating five of Myriad’s BRCA patents. In a unanimous ruling on June 13, the high court deemed isolated genes natural phenomena that companies may not patent. Still, both plaintiffs and defendants announced that the ruling was in their favor. “The opinion is clear when it comes to isolated genomic DNA. The decision overturns the patent office’s policy,” said Sandra Park, attorney with the American Civil Liberties Union, who was involved in the case. On the other side, Myriad announced that the decision still upholds 24 of its patents, including claims on methods to analyze the genes. “Those claims around BRCA analysis are strong,” said Ron Rogers, spokesperson for Myriad. But Park pointed out that if the company thought the rest of the patents would allow it to maintain a monopoly, Myriad didn’t need to keep fighting the lawsuit. The ACLU filed the initial lawsuit against the validity of Myriad’s BRCA patents in 2009, along with the Public Patent Foundation and medical researchers, clinicians, genetic counselors, patients, and cancer survivors. The case has been argued in several federal courts. The U.S. Patent and Trademark Office has already issued preliminary guidance on patent filings, stating that the Supreme Court decision would significantly change their policy in reviewing patent claims on naturally occurring DNA sequences.

Human rights and mortgage repossession: beyond property law using Article 8

Abstract: Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

Raising the bar on achieving racial diversity in higher education: the United States Supreme Court's decision in Fisher v University of Texas.

Abstract: In Fisher v University of Texas, the U.S. Supreme Court revisited the constitutionality of race-conscious admissions practices aimed at fostering student diversity in university programs. Although it concluded that student diversity remains the type of compelling state interest that justifies consideration of race in admissions, the court nonetheless raised the bar on the use of such practices by requiring universities to prove that no workable race-neutral methods can produce the same result. Whether this standard of proof is one that can be met-and whether challenges will mount against universities that continue to use the holistic methods sanctioned 10 years ago in Grutter v Bollinger-remains to be seen. In this commentary, the authors review the background and history of the Supreme Court's decisions on race as a factor in university admissions decisions and examine the potential effects of Fisher on medical education specifically.

Implications of the Supreme Court's ACA Medicaid decision.

Abstract: In the typical case, states are expected to act like independent sovereigns and reject federal funding conditions they do not like. In National Federation of Independent Business v. Sebelius (NFIB), however, the Supreme Court found that Congress unduly coerced states when it enacted the Affordable Care Act's Medicaid expansion provision. This article provides an overview to NFIB and discusses its implications. Focusing on Chief Justice Roberts' plurality opinion, the article explains that undue coercion may occur when the following four elements come together: (1) Congress enacts a new spending program; (2) Congress seeks to induce state participation in the new program by threatening to terminate all federal funding to an existing program; (3) the federal funding to the existing program is significant; and (4) the requirements of the new program are not related to the old program and, thus, could not have been anticipated by the state.

Conflict-of-Laws Considerations in State Court Human Rights Actions

Abstract: As U.S. Supreme Court decisions have curtailed the availability of civil redress for human rights violations under the Alien Tort Statute, victims of human rights abuses are beginning to consider U.S. state courts as a possible forum. In some cases, state courts may prove to be a superior forum, however in many cases they will offer little -- if any -- hope of meaningful redress. In the paradigmatic case of a civil plaintiff seeking redress for torture, forced labor or other atrocities -- usually as the result of an alleged conspiracy between foreign governments and private corporations or individual operating abroad -- state choice-of-law doctrines will often require the application of the tort law of the foreign country, as well as the law relative to damages available. In many cases, the law choice will prove to have a crippling effect on the viability of U.S. litigation. Moreover, recent U.S. Supreme Court decisions limiting the personal jurisdictional reach of state courts over foreign corporations may make state courts unavailable for jurisdictional reasons. Finally, the common law doctrine of forum non conveniens may make state courts unavailable to victims of human rights abuses even if the state court has jurisdiction. In some cases, state courts will prove to be a preferable forum to federal court. However, prospective litigants and their counsel will need to carefully consider the potential pitfalls of filing in state court.

Revlon Is a Standard of Review: Why It's True and What It Means

Abstract: INTRODUCTIONPowerful imagery from the Revlon decision1 has long influenced Delaware's mergers and acquisitions ("M&A") jurisprudence. In that landmark 1986 opinion, the Delaware Supreme Court stated that when a board of directors stops resisting a hostile takeover and decides to sell the corporation, the directors' role changes "from defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company."2 Adding bite to the metaphor, the court held that the Revlon directors breached their fiduciary duties in selling the corporation for cash to their chosen bidder, and the court enjoined the parties from complying with certain aspects of the merger agreement.3 Both the language and result of the decision suggested the existence of special "Revlon duties," a set of affirmative conduct obligations imposed by the Delaware courts in particular factual circumstances that require directors to take certain actions and forgo others.Nearly thirty years of subsequent judicial development have readied this stereotypical interpretation for well-deserved retirement. Revlon is now understood to be a form of enhanced scrutiny, the innovative standard of review created in Unocal.11' Revlon does not establish special duties or impose particular conduct obligations on directors.5 Rather, it is a standard of review under which the extent of judicial deference given to board decisions narrows from rationality to range-of-reasonableness.6Although post-millennial Delaware opinions consistently describe Revlon as a standard of review, echoes of "Revlon duties" reverberate in Delaware law's nominally disparate treatment of third-party mergers.7 If the merger consideration consists of cash, then Revlon applies. If the merger consideration takes the form of stock, then Revlon does not apply. But, if the consolidated entity would have a controlling stockholder, then Revlon applies again.8 The divergent treatment stems from two well-known Delaware Supreme Court decisions: TimeWarner9 and QVC.W Both of these cases involved Paramount Communications Corporation, so the resulting patchwork of standards appropriately can be labeled the Paramount doctrine.""Because Revlon is a standard of review, Delaware law no longer needs the Paramount doctrine.12 As decisions by the Delaware Supreme Court and the Court of Chancery explain, the potential conflicts of interest present in a negotiated acquisition provide the impetus for applying enhanced Revlon scrutiny.13 Those conflicts exist regardless of the form of consideration or whether the post-merger entity would have a controlling stockholder.14 Therefore, enhanced scrutiny should apply to all negotiated acquisitions, and as a practical matter, it already does.15 Only the Delaware Supreme Court can get rid of the Paramount doctrine, and in my personal view, the high court can and should officially bid it farewell.I. From Unocal to RevlonUntil the watershed year of 1985, Delaware recognized only two standards of review for evaluating board decisions: the business judgment rule16 and the entire fairness test.17 The two doctrines reflected a binary world view in which directors fell into one of two categories: independent and disinterested directors who made decisions that a court would have no cause to second-guess and interested directors who made decisions that were inherently suspect.In Unocal, the Delaware Supreme Court recognized that when responding to a takeover bid, target management and the incumbent directors face a potential conflict of interest.18 The directors are not "interested" in the traditional sense as they would be if they were transacting with the corporation.19 However, they are not truly disinterested or independent either, because the hostile bid threatens their positions with the corporation.20 The resulting structural conflict muddies the waters for purposes of judicial review. …

Vaccine Mandates Are Justifiable Because We Are All in This Together

Abstract: Influenza is a deadly disease. Every year, in the United States, 200,000 people are hospitalized with influenza and 23,000–33,000 people die of the disease (Heron 2008). Unimmunized health care wor...

The future of gene patents and the implications for medicine

Abstract: The Supreme Court decision in Myriad Genetics struck down the patenting of human genomic DNA. What will this mean for genetic testing and medicine, more broadly?

Computer Law: Drafting and Negotiating Forms and Agreements

Abstract: "Computer Law" includes an overview of computer technology, featuring a unique computer law glossary, and keeps you up to date on the latest legislative developments and significant Supreme Court decisions. This two-volume desk set comes complete with a CD-ROM containing all the forms discussed in the text. You'll be able to draft high-quality legal documents with less work and in less time than ever before. This book is two volumes. It is updated as needed, generally two times each year.Practice Area: Commercial LawIntellectual PropertyInternet Law

American juvenile justice system: history in the making

Abstract: The original theory behind separating juvenile offenders from adult offenders was to provide care and direction for youngsters instead of isolation and punishment. This idea took hold in the 19th century and became mainstream by the early 20th century. In the 1950s and 1960s, public concern grew because of a perceived lack of effectiveness and lack of rights. The Supreme Court made a series of rulings solidifying juvenile rights including the right to receive notice of charges, the right to have an attorney and the right to have charges proven beyond a reasonable doubt. In the 1980s, the public view was that the juvenile court system was too lenient and that juvenile crimes were on the rise. In the 1990s, many states passed punitive laws, including mandatory sentencing and blanket transfers to adult courts for certain crimes. As a result, the pendulum is now swinging back toward the middle from rehabilitation toward punishment.