Showing papers on "Supreme Court Decisions published in 2015"

Same-Sex Marriage in the United States

Abstract: This Chapter gives a brief analysis of the status of same-sex marriage in the United States prior to the US Supreme Court decisions of 2013 and the status of litigation and political reforms triggered in part by these court decisions. It shows that marriage is a central institution in the country’s rationale of family law in ways that separate it from other western countries that have allowed same-sex marriage.

The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions

Abstract: When the U.S. Supreme Court announces a decision, reporters simplify and dramatize the complex legal issues by highlighting dissenting opinions and thus emphasizing conflict among the justices themselves. This often sensationalistic coverage fosters public controversy over specific rulings, despite polls which show that Americans strongly believe in the Court's legitimacy as an institution. In The Limits of Legitimacy, Michael A. Zilis illuminates this link between case law and public opinion. Drawing on a diverse array of sources and methods, he employs case studies of eminent domain decisions, analysis of survey data and media reporting, an experiment to test how volunteers respond to media messages, and finally the natural experiment of the controversy over the Affordable Care Act, popularly known as Obamacare. Zilis finds, first, that the media tends not to quote from majority opinions. However, the greater the division over a particular ruling among the justices themselves, the greater the likelihood that the media will criticize that ruling, characterize it as activist, and employ inflammatory rhetoric. Zilis then demonstrates that the media's portrayal of a decision, as much as the substance of the decision itself, influences citizens' reactions to and acceptance of it. This meticulously constructed study and its persuasively argued conclusion advance the understanding of the media, judicial politics, political institutions, and political behavior.

Measuring the Significance of U.S. Supreme Court Decisions

Abstract: Despite general agreement that Supreme Court decisions are not fungible, no significance variable satisfactory to the judicial behavior subfield has been produced. In this study the concepts of political, legal, and historical significance are differentiated, and a political significance variable is created by factor analyzing the case choices of 15 authorities. The methods conventionally used to identify significant cases are evaluated by comparing their results to the list of politically significant cases generated here. The descriptive value of the new measure lies in finding the proportion of significant cases by term and identifying their opinion authors and its predictive value in the replication and revision of models and propositions explaining judicial behavior.

Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations, and the Symbols of Judicial Authority

Abstract: In the last decade or so, social scientists of a variety of different intellectual orientations have renewed their interest in the concept “institutional legitimacy.” In part, this reflects concerns over the efficacy of institutions, and in particular the assumption that all institutions require a healthy dose of voluntary compliance in order to be effective. The U.S. Supreme Court is more dependent than most political institutions on the normative support of its constituents; without a “reservoir of goodwill” to protect it, the Court as an institution is quite vulnerable to the dissatisfactions and disappointments of both elites and the mass public.

Presidential Rhetoric and Supreme Court Decisions

Abstract: At a joint press conference in April of 2012, a reporter asked President Barack Obama to speculate on how the Supreme Court might rule concerning the Patient Protection and Affordable Care Act Ultimately, the president said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress" (1) Whether or not this statement shaped the Court's decision in June to uphold the Act; the president's rhetoric fueled a debate in the popular media about the appropriateness of the president attempting to influence the Court by going public in this manner (eg, Editorial Board 2012; Hartman 2012) This is so even though the president mentioned National Federation of Independent Business v Sebelius (2012) on only two occasions prior to the Court's decision The bulk of the president s attention to this case occurred after the decision, in dozens of stump speeches delivered during the 2012 presidential election campaign These remarks are not the only high-profile instance of presidents targeting Supreme Court cases in their public rhetoric President Obama famously raised concerns about Citizens United v Federal Election Commission (2010) during his 2010 State of the Union Address and called on Congress to counteract Shelby County v Holder (2013), the Court's decision to invalidate the preclearance provision of the Voting Rights Act of 1965 George W Bush publicized his opposition to affirmative action prior to the Court's decisions in Gratz v Bollinger (2003) and Grutter v Bollinger (2003) (2) Even 50 years ago, President Johnson praised the Court's decisions in Brown v Board of Education (1954) and Shelley v Kraemer (1948) as he encouraged Congress to pass more expansive civil rights legislation (3) Despite these examples of presidential speeches referencing Supreme Court cases, we lack a firm understanding of when, how frequently, and why presidents mention Supreme Court cases in their public statements To date, most going public research that examines the interrelationships between the executive and judicial branches of government focuses on judicial nominations, not Supreme Court cases (Cameron and Park 2011; Holmes 2007, 2008; Johnson and Roberts 2004; Krutz, Fleisher, and Bond 1998; Maltese 1995a) In addition, only limited research shows that presidents increase their public attention to policy issues in response to Supreme Court cases on those issues (Flemming, Wood, and Bohte 1999; see Ura 2014) Moreover, despite the firestorm surrounding President Obama's comments delivered before the Court's ruling in the Sebelius case, we know next to nothing about how frequently presidents speak on pending decisions or whether they focus their public attention on decided cases We remedy this state of affairs by investigating the frequency of both written and spoken comments on historic and recently decided Supreme Court decisions To do this, we have cataloged the number of times per month that presidents mention Supreme Court cases in public comments from the Eisenhower to Obama administrations (1953-2012) We use these data to explore two significant topics First, we analyze the timing of presidential references to Supreme Court cases to determine whether presidents mention cases pending before the Court or discuss cases after they have been decided Because we find that presidents speak almost exclusively about Supreme Court cases after they have been decided, our primary research question asks: what explains the frequency of the president's monthly public commentary on decided Supreme Court cases? To answer this question, we build upon research that explains the number of presidential speeches over time (Eshbaugh-Soha 2010; Hager and Sullivan 1994; Kernell 1997; Powell 1999; Ragsdale 1984), which concludes, to varying degrees, that presidents speak publicly to bolster their reelection, historical legacies, and policy goals …

“Boarding” Psychiatric Patients in Emergency Rooms: One Court Says “No More”

Abstract: "Boarding" involuntary psychiatric patients in medical emergency rooms is common in many parts of the United States. The practice, driven by a shortage of alternative resources, including limited inpatient capacity, can result in patients' being held for days without treatment or a hospital room, often in busy corridors or treatment rooms. A recent challenge to this practice led the Washington Supreme Court to declare it illegal and resulted in the appropriation of substantial funding to create new psychiatric beds. Centralized psychiatric crisis services, with appropriate payment models, may offer another approach to reducing the need for holding patients awaiting inpatient admission.

The Best for Last: The Timing of U.S. Supreme Court Decisions

Abstract: This Article investigates the hypothesis that the most important and, often, controversial and divisive cases—so called “big” cases— are disproportionately decided at the end of June. We define a “big case” in one of four ways: front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, Los Angeles Times, Washington Post, and Chicago Tribune); the number of amicus curiae briefs filed in a case; and the number of subsequent citations by the Supreme Court to its decision in a case. We find a statistically significant association between each measure of a big case and end-of-term decisions even after controlling for the month of oral argument (cases argued later in the term are more likely to be decided near the end of the term) and Copyright © 2015 Lee Epstein, William M. Landes, and Richard A. Posner. † Ethan A.H. Shepley Distinguished University Professor, Washington University in St. Louis. †† Clifton R. Musser Professor Emeritus of Law and Economics and senior lecturer, University of Chicago Law School. ††† Judge of the U.S. Court of Appeals for the Seventh Circuit and senior lecturer at the University of Chicago Law School. Professor Epstein thanks the National Science Foundation and the John Simon Guggenheim Foundation, and Professor Landes and Judge Posner thank the law and economics program at the University of Chicago, for research support. All data used in this article are available at http://epstein.wustl.edu/research/SupCtTiming.html. We are grateful to Todd Collins, Christopher Cooper, Ryan Black, Maron W. Sorenson, and Tim Johnson for providing some of the data we used in this paper; and to Mitu Gulati, Adam Liptak, and Andrew Puzder for insights on which we’ve drawn. PEL IN PRINTER FINAL (DO NOT DELETE) 3/6/2015 3:19 PM 992 DUKE LAW JOURNAL [Vol. 64:991 case attributes (e.g., dissents and concurrences) that increase the time it takes to decide a case. We also speculate on why big cases cluster at the end of the term. One possibility is legacy and reputational concerns: when writing what they think will be a major decision, the Justices and their law clerks take more time polishing until the last minute with the hope of promoting their reputations. Another is that the end-of-term clustering of the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism just before they leave Washington for their summer recess.

A Quantitative Analysis of Writing Style on the U.S. Supreme Court

Abstract: This paper presents the results of a quantitative analysis of writing style for the entire corpus of US Supreme Court decisions The basis for this analysis is frequency of function words, which has been found to be a useful “stylistic fingerprint” and which we use as a general proxy for the stylistic features of a text or group of texts Based on this stylistic fingerprint measure, we examine temporal trends on the Court, verifying that there is a “style of the time” and that contemporaneous Justices are more stylistically similar to their peers than to temporally remote Justices We examine potential “internal” causes of stylistic changes, and conduct an in-depth analysis of the role of the modern institution of the judicial clerk in influencing writing style on the Court Using two different measures of stylistic consistency, one measuring intra-year consistency on the Court and the other examining inter-year consistency for individual Justices, we find evidence that clerks have increased the institutional consistency of the Court, but have reduced the individual consistency of the Justices

Health Implications of the Supreme Court's Obergefell vs. Hodges Marriage Equality Decision

Abstract: The United States Supreme Court's Obergefell vs. Hodges groundbreaking marriage equality decision also created new terrain for lesbian, gay, bisexual, and transgender (LGBT) persons regarding health, healthcare, and health benefits. This article addresses the health implications of this decision by examining its impact on minority stress and stigmatization and health-related benefits. It also includes a discussion of several impending issues affecting LGBT health that remain after Obergefell.

Windsor and Perry: Reactions of Siblings in Same-Sex and Heterosexual Couples

Abstract: The U.S. Supreme Court decisions in U.S. v. Windsor (570 U.S. 307) and Hollingsworth v. Perry (570 U.S. 399) created a focal point for public discussion of marriage equality for same-sex couples. This article reports the results of an exploratory study of the reactions of individuals currently or previously in same-sex couple relationships and a heterosexual sibling who is currently or previously married (N = 371) to the Supreme Court decisions. Thematic content analysis was used to explore participants’ responses to an open-ended question on a survey. Reactions of individuals from same-sex couples revealed the following themes: (1) longitudinal perspectives on the advancement of rights for same-sex couples; (2) emotional responses celebrating the decisions or expressing relief; (3) affirmation of their relationship or rights; (4) practical consequences of the extension of rights; and (5) minority stress related to anticipation of future prejudice or discrimination. Themes in the heterosexual siblings’ re...

From Normative Debates to Comparative Methodology: The Three Waves of Post-Charter Supreme Court Scholarship in Canada

Abstract: This article surveys the literature on the Supreme Court of Canada following the 1982 introduction of the Canadian Charter of Rights and Freedoms, and argues it has taken place in three distinct “waves.” The first involved tentative, prospective, and normative arguments about the impact of the Charter on national unity and Canada’s political institutions. The second was characterized by the legitimacy debate, the dialogue debate, and qualitative examination of how other political actors responded to Supreme Court decisions. By contrast, the third wave, initiated by American scholars drawing from American research, has been less normative, more comparative, and methodologically rigorous. While this comparative shift has been beneficial, the retreat from normative questions contributes to a misplaced sense that important debates are now settled. We urge scholars to engage in intellectual cross-fertilization by drawing from third-wave contributions to address normative questions about the Supreme Court’s inc...

Holding Steady on Shifting Sands Countermajoritarian Decision Making in the US Courts of Appeals

Abstract: Empirical claims that US Supreme Court decisions tend to follow public opinion raise important questions about the countermajoritarian role of the American judiciary. Yet, for the vast majority of federal cases, the de facto court of last resort is actually a US court of appeals. We examine the role of public opinion in shaping decisions on these courts. We argue that the courts of appeals’ position in the judicial hierarchy, lack of docket control, and lack of public attention encourage circuit judges to ignore public opinion and adhere to consistent legal rules; however, appeals by federal litigants are strongly associated with public opinion. Consequently, circuit judges actively resist ideological shifts in public opinion, as they issue consistent rulings in the face of varying case facts. Applying multilevel modeling techniques to a data set of courts of appeals decisions from 1952 to 2002, we find strong support for our theory.

The New Peonage

Abstract: Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II. This Article examines the phenomenon of what the Author calls “the new peonage.” It posits that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the most basic physical and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system. This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.

Life after Myriad: The Uncertain Future of Patenting Biomedical Innovation & Personalized Medicine in an International Context

Abstract: In a unanimous judgment the US Supreme Court held in the 2013 Myriad gene patent case that patent claims directed to isolated genomic DNA are identical to the naturally occurring sequence and thus not patent eligible "products of nature". It appears therefore that for a new biological composition of matter to be patent eligible, it must not be identical to the naturally occurring biological composition. This decision affects all isolated "products of nature", including genes, gene fragments, and other naturally occurring nucleotide sequences, as well as naturally occurring amino acid sequences, including peptides, ligands, and proteins. Consequently, Myriad has a severe impact on many patent portfolios. Although Myriad does not directly affect the patentability of cDNA or sufficiently modified compounds, and the most recent USPTO guidance provides some hints on how the new eligibility standard can be met, it is still not entirely clear how much modification is required to render a molecule sufficiently distinct from naturally occurring counterparts. Moreover, when combined with the US Supreme Court decisions in Prometheus and Alice, Myriad may affect method claims which depend upon unmodified biological materials. The USPTO guidance, however, still leaves much uncertainty over the patentability of such methods and diagnostics. The substantial impact of these decisions on the biomedical sector and personalized medicine, as recently demonstrated by the 2015 CAFC decision in Ariosa, as well the methodology used by the generalist Supreme Court in reversing a specialized CAFC judgment is particularly interesting from a comparative perspective. This paper analyses and discusses these U.S. developments, and compares them with the situation in Australia and in the EU.

The Economics of Class Actions and Class Action Waivers

Abstract: Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims This group of cases raises the question whether class action waivers should be permitted on policy grounds I examine the economics of class actions and waivers in this paper I distinguish between the standard one-on-one litigation environment and the class action environment In the standard environment, waivers between informed agents enhance society’s welfare In the class action environment, in contrast, not all waivers are likely to enhance society’s welfare

Bylaws Mandating Arbitration of Stockholder Disputes

Abstract: Would a board-adopted bylaw mandating arbitration of stockholder disputes and eliminating the right to pursue such claims on a class action basis be enforceable? That question came to the fore as a result of late June 2013 decisions from the United States Supreme Court and the Delaware Court of Chancery, which, when read together, suggest that the answer to this question is yes. In American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, interpreting the Federal Arbitration Act, upheld a mandatory arbitration provision, including a class action waiver, in a commercial contract. The decision focused upon the arbitration provision as a contract subject to the FAA. Next, the Delaware Court of Chancery rendered its opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp. The decision, which emphasized that bylaws are contracts between a corporation and its stockholders, upheld the validity of bylaws adopted by the boards of Chevron Corporation and FedEx Corporation requiring that intra-corporate disputes be litigated exclusively in Delaware courts. Subsequent United States Supreme Court and Delaware Supreme Court decisions addressing forum selection and the board’s power to adopt bylaws have only strengthened the argument. In addition to complementing each other, both American Express and Boilermakers address a similar issue, namely, the explosion in class action and derivative litigation that settles primarily for attorneys’ fees, most commonly in the context of mergers and acquisitions. Stockholders ultimately bear the costs of such litigation. Class actions and derivative lawsuits are forms of representative litigation, in which named plaintiffs seek to act on behalf of a class of stockholders or the corporation itself. The plaintiffs are customarily represented by attorneys on a contingent fee basis, making the lawyer the “real party in interest in these cases.” If mandatory arbitration bylaws barring class actions were enforceable, the logical outcome would be a marked decline in class actions, since the alleged existence of a class is a principal driver of attorneys’ fees. This Article examines the legal and policy issues raised by arbitration bylaws, whether adopting such bylaws would be attractive to public companies, likely reaction from stockholders and opportunities for private ordering. Since arbitration is a creature of contract, this article argues that there are opportunities for corporations to craft bylaws that take into account company-specific issues, while responding to many likely criticisms. However, the inherent bias of some stockholders and corporations against arbitration is likely to make experimentation in this area slow and difficult.

Hall v. Florida: Capital Punishment, IQ, and Persons With Intellectual Disabilities

Abstract: The United States Supreme Court has ruled on the question of persons with intellectual disability and capital punishment in several notable cases, including Penry v. Lynaugh (1989) and Atkins v. Virginia (2002). In 2014, the U.S. Supreme Court revisited the subject in Hall v. Florida. Although Florida Statute § 921.137 prohibits imposing a sentence of death on a defendant convicted of a capital felony if it is determined that the defendant is intellectually disabled, the Florida Supreme Court strictly interpreted the law so that, because Mr. Hall's IQ was not below the cutoff of 70, further evidence could not be presented to show that he had an intellectual disability. In Hall v. Florida, the Court analyzed the relevance of the standard error of measurement of IQ testing, whether there is a consensus among the states regarding capital punishment, and whether there is a consensus among professional associations regarding these questions. The Court also adopted the term "intellectual disability" as opposed to "mental retardation," following changes in both the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and the U.S. Code and Code of Federal Regulations. We examine the Court's decision and offer commentary regarding the overall effect of this landmark case.

“Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty

Abstract: The Supreme Court's death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is also based in large part on the assumption that prosecutors and judges will act

Folk on the Delaware general corporation law

Abstract: As reporter for the revised Delaware Corporation Law, Ernest L. Folk played the decisive role in the actual drafting of the law. His great subsequent analysis -- now in its Fifth Edition -- is organized by code section, with incisive and extensively annotated commentary that includes: strategies and options for specific business decisions and activities under the statute - detailed analysis of the practical applications and effects of each statutory provision and judicial decision - and all the major cases, many of them unreported and unavailable in any other source. You'll find easy-to-follow, ready-to-use guidance on such important matters as: duties of officers and directors - director and officer liability - the business judgment rule - standards of fairness in corporate transactions - administrative guidelines on filing - mergers and acquisitions - the poison pill defense and other takeover tactics - contested takeovers, leveraged buyouts, and proxy contests - appraisal rights - and alternative business entities. Discusses and analyzes Delaware legislation and recent Delaware Supreme Court decisions.

Freedom of Speech in US Supreme Court Justices’ Opinions: Political Speech Protection as Applied by the Roberts Court

Abstract: This study seeks to reveal whether certain patterns can be traced in the current US Supreme Court decisions pertaining to First Amendment protection of speech. It reviews how the Roberts Court applied the philosophy of effective self-governance and its principles in its speech-related decisions and looks at what opinions were provided by the majority, and concurring and dissenting Justices. The study shows that the Roberts Court seems to be especially prone to arguing its holdings in terms of political speech values and especially protective of political speech as applied to the cases concerning campaign funding.

Is the Class Action Really Dead? Is that Good or Bad for Class Members?

Abstract: Recent Supreme Court decisions have tightened up the standards for obtaining class certification and virtually eliminate class arbitration as well. However, while the Court has made it more difficult for plaintiffs’ attorneys to use class resolution of claims as a prosecutorial tool, the lower federal courts appear to relax certification standards when the parties seek to certify a settlement class. Because of the preclusive power of a class action, which binds all class members who do not opt out, the class action remains a potent settlement tool. The 2014 Randolph W. Thrower Symposium panel that served as the foundation for this paper, “Binding the Future: Global Settlements and the Death of Representative Litigation,” asked, however, whether class settlements are bad for class members.This Article begins by analyzing the Supreme Court’s certification decisions and agrees with most commentators that although class actions are not dead, the device’s utility as a prosecution tool has been compromised. However, the Article then shows that certification of class actions for settlement purposes is alive and well. Finally, the Article identifies possible alternatives to the use of class actions. Although much attention has been (and should be) directed at the fairness of proposed settlements, the Article suggests that it is fortunate that the lower federal courts are not applying class certification standards as stringently in the class settlement context. This is because, despite all the problems inherent in class action practice, class actions remain the best of a range of options for protecting the rights of class members, particularly in low-value claim cases.

Informed Consent and the First Amendment

Abstract: In recent years, U.S. states have been adding to the requirements for physicians seeking “informed consent.” Now, an appeals court decision striking down a North Carolina statute on pre-abortion ultrasonography may bring the issue back before the Supreme Court.

Examining legal authoritarianism in the impact of punishment severity on juror decisions

Abstract: Recent Supreme Court decisions point to an increased reliance on juries to determine a defendant's sentence. Evidence is mixed on whether jurors are more likely to convict when the potential punishment is mild. The current study examined this issue, as well as the impact of legal authoritarianism (LA) (Kravitz, D. A., Cutler, B. L., & Brock, P. 1993. Reliability and validity of the original and revised legal attitudes questionnaire. Law and Human Behavior, 17, 661–677. doi: 10.1007/BF01044688), on jurors’ decisions. An ethnically diverse sample of participants completed the individual difference measure prior to viewing a videotaped, reenacted criminal trial. We manipulated the severity of the punishment the defendant would receive if convicted. Results indicated LA moderated the effect of punishment severity on verdict. Specifically, at higher levels of punishment severity, civil libertarians convicted less, while legal authoritarians convicted more. That is, the severity-leniency effect held for civil l...

Religious Institutionalism, Implied Consent and the Value of Voluntarism

Abstract: Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions - exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby - stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because they are created through the voluntary choices of individuals to join together in the pursuit of collective religious objectives such as faith and salvation. In so doing, these individuals implicitly authorize their religious institutions to make rules and develop doctrine that can promote these shared religious objectives. This process of consent - what the Supreme Court referred to in Watson v. Jones as “implied consent - empowers the religious institution to promulgate rules that promote shared religious values. In this way, the creation of religious institutions represent the voluntary free exercise of religion on the part of many individuals, each granting a religious institution authority over internal religious life among the membership in order to promote shared religious objectives. And in focusing on the core voluntarism of voluntarism, the article proposes answers to some of the more vexing questions left unanswered by recent Supreme Court decisions such as which institutions count as religious institutions and to what extent should these institutions be excused from complying with otherwise valid laws.

Fictions in Tort

Abstract: This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure (beginning with Fairchild v Glenhaven Funeral Services and considered most recently in The ‘Trigger’ Litigation). These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning.

Dolly and Alice.

Abstract: The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court's decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court's further direction on patentable subject matter. In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a 'products of nature' analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court's current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.

The Difficulty of Constitutional Amendment in Canada

Abstract: Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. This article suggests that the Constitution of Canada may be even harder to amend. Canadian constitutional politics have proven the textual requirements for major constitutional amendment so far impossible to satisfy. But the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the text. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Religious Institutionalism, Implied Consent and the Value of Voluntarism

Abstract: Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions - exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby - stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because they are created through the voluntary choices of individuals to join together in the pursuit of collective religious objectives such as faith and salvation. In so doing, these individuals implicitly authorize their religious institutions to make rules and develop doctrine that can promote these shared religious objectives. This process of consent - what the Supreme Court referred to in Watson v. Jones as “implied consent - empowers the religious institution to promulgate rules that promote shared religious values. In this way, the creation of religious institutions represent the voluntary free exercise of religion on the part of many individuals, each granting a religious institution authority over internal religious life among the membership in order to promote shared religious objectives. And in focusing on the core voluntarism of voluntarism, the article proposes answers to some of the more vexing questions left unanswered by recent Supreme Court decisions such as which institutions count as religious institutions and to what extent should these institutions be excused from complying with otherwise valid laws.

: Reactions of Siblings in Same-Sex and Heterosexual Couples

Abstract: The US Supreme Court decisions in US v Windsor (570 US 307) and Hollingsworth v Perry (570 US 399) created a focal point for public discussion of marriage equality for same-sex couples This article reports the results of an exploratory study of the reactions of individuals currently or previously in same-sex couple relationships and a heterosexual sibling who is currently or previously married (N = 371) to the Supreme Court decisions Thematic content analysis was used to explore participants’ responses to an open-ended question on a survey Reactions of individuals from same-sex couples revealed the following themes: (1) longitudinal perspectives on the advancement of rights for same-sex couples; (2) emotional responses celebrating the decisions or expressing relief; (3) affirmation of their relationship or rights; (4) practical consequences of the extension of rights; and (5) minority stress related to anticipation of future prejudice or discrimination Themes in the heterosexual siblings’ responses were (1) ally support; (2) flat support without emotion or elaboration; (3) indifference to or ignorance about the decisions; and (4) disapproval of the decisions These themes are compared and discussed in light of prior research on reactions to marriage restriction debates and marriage (in)equality and family relationships

Patentability of Stem Cells in the United States.

Abstract: Until recently, the patentability of stem cells was well established within the judicial and statutory framework in the United States. However, the shifting landscape of patent law, particularly with regard to patent-eligible subject matter under 35 U.S.C. §101, presents new challenges to the patentability of stem cells. In this paper, we discuss the legal precedent that paved the way for stem cell patents, including Diamond v. Chakrabarty and In re Bergy. Additionally, we review recent Supreme Court cases and recent guidance issued by the U.S. Patent and Trademark Office that impose new limitations on patent-eligible subject matter and thereby threaten the patentability of stem cells in the United States.