The US Supreme Court does Kompetenz-Kompetenz

2019 ◽  
Vol 35 (2) ◽  
pp. 263-273
Author(s):  
Adam Samuel
Keyword(s):  
Supreme Court ◽  
Interstate Commerce ◽  
The Us ◽  
Us Supreme Court ◽  
The Right

Abstract In Henry Schein and New Prime, the US Supreme Court reached two unanimous decisions on arbitration. Both cases in quite different ways gave rise to questions about the original German doctrine or version of Kompetenz-Kompetenz, the ability of the parties to submit by agreement their jurisdictional disputes to arbitration. Each decision, though, contains so much more. In Henry Schein, the court rejected the view that the court could effectively terminate an arbitration by concluding that the right to arbitrate was clearly not there. It required a proper enquiry including an investigation as to whether the AAA Commercial Rules constitute a Kompetenz-Kompetenz agreement. The facts presented suggested a more complex enquiry than that about the arbitrator's jurisdiction and powers. In New Prime, the Court applied the exclusion from the Federal Arbitration Act for employees engaged in interstate commerce to a self-employed lorry driver. It refused to save the clause on the basis on a Kompetenz-Kompetenz agreement or an inherent jurisdiction.

The Use and Abuse of Definitions in Constitutional Law

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Alec Walen
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Same Sex ◽  
Same Sex Couples ◽  
The Us ◽  
Us Supreme Court ◽  
Constitutional Right ◽  
Definition Of ◽  
The Right ◽  
Constitutional Meaning

AbstractJustice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

Judges in Politics: USA

1968 ◽  
Vol 3 (4) ◽  
pp. 499-518
Author(s):  
Vivian Vale
Keyword(s):  
Supreme Court ◽  
High Water ◽  
State Legislature ◽  
State Legislators ◽  
State Courts ◽  
Congressional Districts ◽  
The Us ◽  
Us Supreme Court ◽  
The Right ◽  
First Time

‘HISTORIC’, ‘MOMENTOUS’ AND ‘REVOLUTIONARY’ ARE ONLY A FEW OF the epithets freely bestowed upon the case of Baker v. Carr. By that justly celebrated judgment of 26 March 1962 the US Supreme Court implied for the first time that the weight of an American's vote might no longer depend on whereabouts in the country he lived. It did so by ruling that a scheme of apportionment which permitted inequalities of population between electoral districts represented in a state's legislature could be challenged in federal (not merely state) courts, which had competence to protect the right in question. The tide of ensuing litigation attained a new level on I7 February 1964, when the Court in Wesberry v. Sanders held that a like symmetry must prevail among US Congressional districts also. High-water mark was reached on 15 June of that year with Reynolds v. Sims, where the constitution was held to requirethat the seats of both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.

The Right to an Unchanging World – Indirect Expropriation in International Investment Agreements and State Sovereignty

ICL Journal ◽  
2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Ivan Pupolizio
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
Global Scale ◽  
State Sovereignty ◽  
Property Rights Protection ◽  
International Investment Agreements ◽  
The Us ◽  
Us Supreme Court ◽  
The Right ◽  
Investment Agreements

AbstractThis paper examines indirect expropriation in international investment agreements and compares current foreign investments protection with property protection in the XIXth century USA, when the US Supreme Court adhered to an abstract and de-physicalized conception of property later contested by legal realists. Its central claim is that investor state arbitration poses a serious and underestimated challenge to state sovereignty, granting arbitrators a ‘proto-constitutional’ power of judicial review on regulatory powers, including the legislative one. Moreover, the indeterminacy of indirect expropriation leads to a potential transformation of property rights protection that could eventually give transnational enterprises a new ‘right to an unchanging world’, as the US Supreme Court did more than a century ago, albeit this time on a global scale.

US Supreme Court hears carefully chosen gun case

2021 ◽  
Keyword(s):  
Interest Groups ◽  
Supreme Court ◽  
Content Type ◽  
Second Amendment ◽  
The People ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution ◽  
The Right ◽  
State Restrictions

Significance The case, which concerns the power of a state to prohibit the carrying of concealed handguns, involves the Second Amendment to the US Constitution, which protects “the right of the people to keep and bear Arms”. The outcome may see the Court restrict state regulatory power in unprecedented ways. Impacts This case could continue a trend begun in 2008 that has broadened the scope and applicability of the Second Amendment protections. The Court could adopt an ends-and-means evaluation that would permit greater variability for state restrictions on guns. Other interest groups will pursue well-chosen cases before the newly conservative court.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

Religious Neutrality and the Government’s Freedom of Speech in the Jurisprudence of the us Supreme Court

2015 ◽  
Vol 10 (1) ◽  
pp. 1-23
Author(s):  
András Koltay
Keyword(s):  
Supreme Court ◽  
Freedom Of Speech ◽  
The State ◽  
Social Conditions ◽  
Religious Symbols ◽  
The Us ◽  
Us Supreme Court ◽  
The Government ◽  
Hard Cases

The issue of the use of religious symbols by the State, the Government, the Municipalities and Courts has emerged as a practical constitutional problem during the last quarter of a century. Contradictory examples of us Supreme Court jurisprudence prove that this issue is among the constitutional ‘hard cases’. The relatively recent appearance of the problem clearly indicates the ways in which American social conditions have changed and the transformation of us society’s attitude to religion.

Judges and Policy Making Authority in the United States and the European Union

ICL Journal ◽  
2014 ◽  
Vol 8 (2) ◽  
Author(s):  
Antonios E. Kouroutakis
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
The United States ◽  
Legal Order ◽  
European Court Of Justice ◽  
Judicial Activism ◽  
Court Of Justice ◽  
European Court ◽  
The Us ◽  
Us Supreme Court

AbstractInstitutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reason­ing.In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activ­ism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it ex­presses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would even­tually react and would limit such activism.

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