Showing papers on "Supreme Court Decisions published in 2020"

Loyalty over Fairness: Acceptance of Unfair Supreme Court Procedures:

Abstract: Evidence of procedural fairness leads individuals to support Supreme Court decisions, even ones with which they disagree Yet, in some settings, unfair behavior is seen as acceptable, even praisewo

Microbiome therapeutics and patent protection.

Abstract: Obtaining patent protection for microbiome therapeutics has been affected profoundly by the US Supreme Court decisions in Myriad and Mayo, which redefined the scope of which natural phenomena, including microbiome therapeutics, are patent eligible.

US Supreme Court Doctrine in the State High Courts

Abstract: US Supreme Court Doctrine in the State High Courts challenges theoretical and empirical accounts about how state high courts use US Supreme Court doctrine and precedent. Michael Fix and Benjamin Kassow argue that theories that do not account for the full range of ways in which state high courts can act are, by definition, incomplete. Examining three important precedents – Atkins v. Virginia, Lemon v. Kurtzman, and DC v. Heller/McDonald v. Chicago – Fix and Kassow find that state high courts commonly ignore Supreme Court precedent for reasons of political ideology, path dependence, and fact patterns in cases that may be of varying similarity to those found in relevant US Supreme Court doctrine. This work, which provides an important addition to the scholarly literature on the impact of Supreme Court decisions, should be read by anyone interested in law and politics or traditional approaches to the study of legal decision-making.

The President and the Supreme Court: Going Public on Judicial Decisions from Washington to Trump

Abstract: When presidents take positions on pending Supreme Court cases or criticize the Court's decisions, they are susceptible to being attacked for acting as bullies and violating the norm of judicial independence. Why then do presidents target Supreme Court decisions in their public appeals? In this book, Paul M. Collins, Jr and Matthew Eshbaugh-Soha argue that presidents discuss the Court's decisions to demonstrate their responsiveness to important matters of public policy and to steer the implementation of the Court's decisions. Using data from Washington to Trump, they show that, far from being bullies, presidents discuss cases to promote their re-election, policy goals, and historical legacies, while attempting to affect the impact of Court decisions on the bureaucracy, Congress, the media, and the public.

The Effect of Opinion Readability on the Impact of U.S. Supreme Court Precedents in State High Courts

Abstract: Objective This article examines whether more readable U.S. Supreme Court opinions are cited with greater frequency in state courts of last resort. Methods We use random slope, random intercept multilevel models to analyze 30 years of state high court citations to U.S. Supreme Court majority opinions issued during the 1987–2006 terms. Results Our analysis reveals that opinion readability exerts a strong substantive impact on citation rates. This effect holds while accounting for a variety of factors previously shown to influence citation rates. Conclusion Institutional constraints, workload considerations, and audience costs should lead state high courts to find clearly written opinions more attractive than jargon‐laden ones. This makes the readability of a U.S. Supreme Court precedent a useful heuristic for state courts when selecting among potential relevant precedents. As these courts play a major role in implementing U.S Supreme Court decisions, our findings indicate that the readability of U.S. Supreme Court opinions has a strong effect on their long‐term impact.

The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?

Abstract: It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.

Document Similarity of Czech Supreme Court Decisions

Abstract: Retrieval of court decisions dealing with a similar legal matter is a prevalent task performed by lawyers as it is a part of a relevant decision-making practice review. In spite of the natural language processing methods that are currently available, this legal research is still mostly done through Boolean searches or by contextual retrieval. In this study, it is experimentally verified whether the doc2vec method together with cosine similarity, can automatically retrieve the Czech Supreme Court decisions dealing with a similar legal issue as a given decision. Furthermore, the limits and challenges of these methods and its application on the Czech Supreme Court decisions are discussed.

Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts

Abstract: Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have questioned this prevailing belief, no one has yet provided a comprehensive account of litigation challenging EPA rules throughout the agency’s entire history. In this article, we first synthesize the existing disparate empirical studies, each drawn from different time periods, to show how collectively this research creates a picture in stark contrast with prevailing impressions of an EPA besieged by litigation. We also bring new data to bear, providing the first comprehensive empirical effort to track, across the last half-century, both levels of EPA rulemakings and court decisions involving the agency. What we find confirms previous studies in challenging conventional wisdom. EPA has incurred a fairly modest rate of judicial review and invalidation of its rules. Moreover, the variation we do observe over time occurs within a relatively small band, suggesting more continuity than change in litigation patterns over time. The agency appears, from its earliest days, to have quickly achieved a kind of equilibrium in its relationship with the courts. We conclude by suggesting that this outcome would be expected from professional staff efforts within EPA to adapt to changes in the legal environment so as to manage litigation risk and insulate the agency from much judicial scrutiny.

Values in the Supreme Court: Decisions, Division and Diversity

Abstract: This book examines the significance of values in Supreme Court decision making. Drawing on theories and techniques from psychology, it focuses on the content analysis of judgments and uses a novel methodology to reveal the values that underpin decision making. The book centres on cases which divide judicial opinion: Dworkin's hard cases 'in which the result is not clearly dictated by statute or precedent'. In hard cases, there is real uncertainty about the legal rules that should be applied, and factors beyond traditional legal sources may influence the decision-making process. It is in these uncertain cases – where legal developments can rest on a single judicial decision – that values are revealed in the judgments. The findings in this book have significant implications for developments in law, judicial decision making and the appointment of the judiciary.

A Tale of Two Doctrines: Revaluating Bifurcation in Substantive Review before the Supreme Court

Abstract: Debates over bifurcation in substantive review persist; should Wednesbury review subsist alongside a proportionality-based model, or should substantive review depend solely upon proportionality? Drawing on an analysis of UK Supreme Court decisions between 2014 and 2018, we argue that the academic debate and much recent jurisprudence misconstrue substantive review Both proportionality and Wednesbury display their own internal (“intra-doctrinal”) bifurcation between judge-centric and deferential approaches Although proportionality’s application under the Human Rights Act 1998 has generated culture of justification in rights cases, fixation on the test’s rights/aims balancing aspects has embroiled judges in value adjudication Faced with preferring either legal or policy aims, the Court has at times fluctuated between strong and weak oversight Traditional Wednesbury review, while methodologically distinct, can also swing between highly deferential reasonableness review and more robust review drawing, for example, on statutory purpose Substantive review thus currently risks contradictory pathologies; deploying legal trumps to preclude political decision making and permitting clear policy failures These pathologies stem from UK public law’s inadequate engagement with substantive decision making We therefore re-evaluate functionalist constitutionalism, advancing an active functionalist model which urges public lawyers, outwith instances of illegality, to maximise institutional effectiveness By prioritising legitimacy as an organising principle for judicial review, this approach sustains political decision making within the bounds of a liberal democratic order

A road map to decision causation: In misleading conduct and failure to disclose cases

Abstract: Statutory concepts of causation have been front and centre in a series of recent Federal Court and Supreme Court decisions addressing cases of misleading conduct. The statutes all provide compensatory remedies for loss or damage suffered ‘because of’, ‘by’ or ‘as a result of’ misleading conduct. A particularly difficult question is how a failure to disclose some fact or matter can cause a person to suffer loss or damage. How can a person rely on something that was not said?

Robust Ranking of Brazilian Supreme Court Decisions.

Abstract: This work studies quantitative measures for ranking judicial decisions by the Brazilian Supreme Court (STF). The measures are based on a network built over decisions whose cases were finalized in the Brazilian Supreme Court between 01/2001 and 12/2019, obtained by crawling publicly available STF records. Three ranking measures are proposed; two are adaptations of the PageRank algorithm, and one adapts Kleinberg’s Algorithm. All are compared with respect to agreement on top 100 rankings; we also analyze each measure robustness based on self-agreement under perturbation.

Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings:

Abstract: Judicial confirmation hearings offer a rare opportunity for senators to engage in a public exchange with current and future members of the federal judiciary. Below the Supreme Court level, however,...

Does Alice Target Patent Trolls

Abstract: The Supreme Court upended the patent world in the past decade with a series of decisions restricting the scope of patent-eligible subject matter. The culmination of those cases – Alice v. CLS Bank -- has been at the center of a firestorm of controversy in the five years since it was decided. AAs we show in this paper, it has also been the basis of nearly a thousand court decisions. We evaluate how Alice and similar Supreme Court decisions on patentable subject matter have been used in the courts five years in. Using a comprehensive dataset we hand-coded of every district court decision and subsequent appeals to the Federal Circuit involving patentable subject matter, we explore not only how patent owners fare in patentable subject matter cases but how a variety of factors, including industry, the nature of the patent owner, and the judicial venue may influence those results. While we confirm some conventional wisdom, we upend other assumptions common in the legal and policy debates over patent eligible subject matter. In particular, we find that once in court, biotech/life science innovations are more likely to survive patentable subject matter challenges than software/IT innovations. Most surprisingly we find that the entities most likely to lose their patents at this stage are not patent trolls but individual inventors and inventor-started companies. Our findings have important implications for current legislative and judicial disputes over patent reform. As biotech worries about deterrence of new innovation and software worries about patent trolls dominate the debates, we may be ignoring some of the most important effects of Alice.

Contraceptive Mandate, ACA Final Rules, And COVID-19.

Abstract: The Supreme Court upheld broad exemptions to the Affordable Care Act contraceptive mandate; new ACA rules were finalized.

Medical Assistance in Dying: A Review of Canadian Regulatory Documents

Abstract: After years of heated debate about the issue, medical assistance in dying (MAiD) was legalized in Canada in 2016. Canada became the first jurisdiction where MAiD may be delivered by nurse practitio...

The Incomplete Rule of Completeness: Taking a Stand on Federal Rule of Evidence 106

Abstract: The common law Rule of Completeness served an important role in Anglo-American jurisprudence for centuries. Historically, it was a rule guided by principles of fundamental fairness and was designed to prevent parties from introducing incomplete and misleading statements at trial. What was once a simple rule has been muddled by Federal Rule of Evidence 106. The common law rule language was lost when Rule 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether Rule 106 applies to oral as well as written statements, and whether Rule 106 allows a court to admit otherwise inadmissible evidence. The federal and state courts are split on these issues, and the United States Supreme Court has failed to provide guidance. This Article critically examines current Rule of Completeness jurisprudence. It compares and contrasts the common law with Rule 106, and then dives deeply into the disparate interpretations of the Rule. By using two recent Utah Supreme Court decisions as case studies, the Article highlights the confusion caused by the incomplete understanding of the Rule and demonstrates the unfairness that occurs when the Rule is read too narrowly. Finally, it recommends that the Federal Rules of Evidence Advisory Committee fill the leadership void in this area of Evidence law and draft an expanded Federal Rule of Evidence 106.

Supreme Court Journalism: From Law to Spectacle?

Abstract: Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades? This Article seeks to address those questions by comparing the language used in print media coverage of two highly salient cases involving similar legal issues decided fifty years apart: Brown v. Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments. That conclusion is striking. First, it suggests that in the ongoing scholarly debate over the nature of the Justices’ approach to their work, the press has chosen sides. Rather than closely interrogating the Court’s work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience—because we already know that the Justices’ political views and allegiances are the true drivers of Supreme Court decisions. Thus, contemporary press coverage tends to emphasize such factors as the political affiliation of the president who appointed a particular Justice. Second, it raises questions about the way in which the contemporary press is discharging its responsibility to educate the public about the Court and its work. It also raises the possibility that the public will become predisposed to doubt the Court’s legitimacy, and, indeed, the very legitimacy of the American system of judicial review. If the Court’s decisions really reflect nothing more than the Justices’ political predilections and commitments, or those of the elites to which they belong, it is important for the public to know that. Nothing could be more important than discovering and documenting the fact that the Justices wear no clothes. On the other hand, whether Supreme Court decisions deserve to be viewed in that way is a question that needs to be tested through a careful examination of the Court’s work product. It is something to be proved rather than presumed. The contemporary print media’s seemingly casual assumption that the main point about reporting on the Supreme Court is not to test the validity of the Court’s reasoning, and explore its flaws, but to try to trace connections between the Justices’ voting behavior and their political or other commitments, may well corrode public confidence in the Court. If that occurs unnecessarily, and without adequate justification, the consequences for the institution of judicial review may well be dire. Moreover, if the public’s expectations are lowered, so too may be the standards the Justices set for themselves and each other. In other words, if the press leads us to believe that the Court’s work product is nothing more than politics, that may well become a self fulfilling prophecy—if it has not already happened.

42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter

Abstract: This is an edited and adapted version of the 42nd Annual Foulston Siefkin Lecture, delivered at Washburn University School of Law. The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred. The lecture then details some of the novel surveillance technologies that are likely to reach the Supreme Court over the next several years. These technologies include drones, smart homes and devices, web surfing surveillance, and pole cameras targeting a specific suspect’s home. Many of these technologies have already been used in police investigations and evaluated by judges in lower court cases. The lecture assesses how the Supreme Court is likely to resolve these cases and uses the framework of Carpenter and its predecessors to make predictions about the future direction of Fourth Amendment law.

June Medical Services v. Russo — A Threat to Physicians’ Standing to Challenge Abortion Regulations

Abstract: June Medical Services v. Russo In June Medical Services v. Russo, the Supreme Court rejected Louisiana’s request to revisit long-established precedent and deny the legal entitlement of physicians t...

Free-Expression Rationales, Truth, and the Marketplace of Ideas

Abstract: The First Amendment makes no mention of truth. Assumptions about truth, however, have become the foundations for free-expression rationales, the very basis for such freedoms in democratic society. The Supreme Court gradually, over time, wedded Enlightenment assumptions about truth to the marketplace of ideas rationale for free expression. This paper examines, in light of massive, widespread adoption of networked technologies and AI, as well as Supreme Court decisions that have undermined the distinctive role of truth, whether truth should be removed or replaced as a crucial, justifying concept in freedom of expression. The paper examines the marketplace approach’s history and assumptions, as well as alternative, philosophical understandings of truth and how the Supreme Court has communicated understandings about truth in its opinions. The paper concludes by outlining how installing revised truth assumptions, those that align more with discursive and phenomenological understandings, will better protect these freedoms, as well as the flow of information, in the twenty-first century.

Social Equity and Voting Rights : A Shrinking Regime

Abstract: For Rohr, the manifestation of regime values contained in the U.S. Constitution are best understood by analyzing Supreme Court decisions. Most recently, the Supreme Court significantly narrowed the regime by permitting voting restrictions that disproportionately impact African Americans. This chapter examines the ruling and subsequent implementation of this landmark 2013 decision, Shelby v. Holder, which ruled core aspects of the Voting Rights Act of 1965 unconstitutional. Following the ruling, several states formerly covered under provisions of the Voting Rights Act passed laws removing provisions such as early voting and online voter registration; while some states have also implemented more restrictive voter identification laws and purged voter rolls more aggressively. There are important racial implications of these changes, particularly for African Americans, including the closing of polling locations in predominately African American communities. In examining ease or difficulty of voting restrictions, in general, states with large African American populations have stricter voting; and states with higher white populations have more voting ease. The aftermath of Shelby v. Holder offers a critical social equity paradox by significantly reducing voting protections derived from the original intent of the 15th Amendment. This signals a fundamental shift in the composition of the voting regime and raises compelling social equity concerns.

Topic Modelling of the Czech Supreme Court Decisions

Abstract: The Czech Supreme Court produces significant amount of decisions totalling more than 130 000 decisions since 1993. The amount makes it difficult for law practitioners to research this case law. This work focuses on topic models for enhanced information retrieval through identification of case law approaching the same or similar issues. We provide initial quantitative evaluation of Latent Dirichlet Allocation (LDA) and Non-negative Matrix Factorization (NMF) models according to CV coherence score for different number of topics modelled n= {10, 20, ..., 90, 100}. Additionally, we provide qualitative evaluation for LDA and NMF models n= {20, 30} that will serve as a starting point for subsequent expert-user evaluation.

A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemptions

Abstract: What are the consequences of religious exemptions? And what are the normative implications of these consequences? These questions are currently at the center of a heated debate. Opponents argue that granting exemptions would extend LGBTQ discrimination. Proponents of religious exemptions argue that religious exemption would not expand discrimination against same-sex couples. The troubling aspect of this debate is that none of the parties rely on actual data. Particularly missing are data on the effects of exemptions granted in Supreme Court decisions, an issue that the Court has addressed repeatedly in recent years—and is set to do so once again this term, in Fulton v. City of Philadelphia. This Article intervenes in the debate based on the results of a large-scale field experiment that measured the effect of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) on same-sex couples in the wedding market. The field experiment revealed that Masterpiece reduced vendors’ willingness to provide wedding services to same-sex couples as compared with heterosexual couples, even for vendors that provided these services prior to the decision. Following Masterpiece, the odds that same-sex couples would experience discrimination are estimated between 61% and 85%. These results have several implications for the debate on religious exemptions. First, they discredit the argument that the effect of religious exemptions is negligible and that exemptions will not expand discrimination. Second, the results complicate the conventional portrait of religious objection as fixed and unyielding to change, showing that the demand for discrimination is elastic and socially constructed, even when coercion and sanctions are absent. Third, Masterpiece’s negative effects establish the pillar of the strict scrutiny doctrine of religious burdens, by showing that states have a compelling interest to enforce antidiscrimination law without exemptions to ensure access to public accommodations. Fourth, I advance an empirical approach to religion-equality conflicts that can guide legislatures that deliberate whether and how to enact religious exemptions from antidiscrimination laws. Finally, the troubling consequences of Masterpiece require the Supreme Court to proceed with great care as it sets to decide Fulton v. City of Philadelphia and any religion-equality conflict in the future. However the Court decides to resolve the constitutional issue at hand, it must take into account that even a deliberately narrow and case-specific exemption might have a significant negative impact on the market and its customers.

Race, Politics, and the Criminalizing of Juvenile Justice: Changing Conceptions of Adolescents’ Competence and Culpability

Abstract: This chapter focuses on the experience of African American children in the juvenile justice system. It provides an overview of the early juvenile court—its structural origins, philosophical underpinnings, historic mission, and discriminatory practices. The chapter examines the Warren Court’s due process revolution of the 1960s—its response to racial inequality, its decisions to grant delinquents some procedural safeguards, and its intended and unintended consequences. It explains why and how perceptions of youth and crime changed during the Get Tough Era of the 1980s and 1990s. The chapter also examines adolescent culpability and competence through the lens of Supreme Court decisions reaffirming that “children are different.” The Supreme Court developed its jurisprudence of youth—“children are different”—in response to get-tough laws that ignored adolescents’ reduced culpability. The political and legal responses to African Americans provide the connection between the Warren Court’s emphases on civil rights and procedural justice and subsequent efforts to get tough on youth crime.