Who Wins?

2020 ◽  
pp. 239-262
Author(s):  
Chris Hanretty
Keyword(s):  
Supreme Court ◽  
Predictors Of Success ◽  
Lower Court ◽  
The Supreme Court ◽  
Lower Courts

This chapter looks at whether appellants succeed before the Supreme Court. Around half of appellants succeed, and these rates of success vary by area of law and by the type of appellant. The strongest predictors of success, however, have to do with the route the case took to the court. Appellants are more likely to succeed if the Supreme Court itself granted permission to appeal (rather than having leave granted by the lower court), and if appellants were able to convince at least some judges in lower courts. Success is not wholly determined by what happens in lower courts, however: litigants who employ one additional senior lawyer are more likely to succeed.

The Persistent Problem of Media Taxation: First Amendment Protection in the 1990S

1997 ◽  
Vol 74 (3) ◽  
pp. 579-590 ◽  
Author(s):  
Cathy Packer ◽  
Karla K. Gower
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Lower Court ◽  
Persistent Problem ◽  
The Supreme Court ◽  
Lower Courts ◽  
Explicit Recognition ◽  
One Step ◽  
The Media ◽  
Substantial Change

This article examines U.S. Supreme Court decisions regarding the constitutionality of taxation of the mass media. It concludes that the Court's 1991 decision in Leathers v. Medlock does not represent a substantial change in the law governing taxation of the media but is one step in the evolution of two distinct lines of media taxation cases. The article also examines how the lower courts have applied Leathers in the six years since it was decided. The lower court decisions uniformly - although not explicitly - recognize the two lines. What is needed now is explicit recognition by both the Supreme Court and the lower courts.

scholarly journals An Examination of the Coherence of Fourth Amendment Jurisprudence

2018 ◽  
Author(s):  
Nicholas Kahn-Fogel
Keyword(s):  
Supreme Court ◽  
Fourth Amendment ◽  
The Body ◽  
High Rate ◽  
Systematic Evaluation ◽  
Court Cases ◽  
Lower Court ◽  
Wrong Answer ◽  
The Supreme Court ◽  
Lower Courts

For decades, scholars have routinely attacked the Supreme Court’s Fourth Amendment jurisprudence as an incoherent mess, impossible for lower courts to follow. These scholars have based their claims almost entirely on qualitative analysis of the Court’s opinions. This Article presents the first systematic evaluation of the consensus view of Fourth Amendment law as incoherent. The primary method I use to evaluate the coherence of the body of law is an assessment of lower court performance on Fourth Amendment issues the Supreme Court would later resolve. Because the Supreme Court’s agreement with lower courts likely reflects, at least in part, the clarity of the Supreme Court’s previous pronouncements, a high rate of agreement between lower courts and the Supreme Court would tend to suggest the coherence of the field. On the other hand, if the Court concludes most lower courts got the wrong answer to a Fourth Amendment question, that conclusion suggests either a lack of clarity in the Court’s precedent or that the Court simply shifted course after having issued seemingly straightforward pronouncements in the past. Either of these possibilities would suggest a kind of incoherence or instability in Fourth Amendment law. I examine lower court decisions dealing with issues the Supreme Court subsequently addressed over the course of twenty Supreme Court terms. Because Supreme Court cases tend to deal with the most difficult, divisive issues, I also compare the frequency with which the Court has felt compelled to review Fourth Amendment questions to the rate at which the Court has dealt with other important constitutional issues.

scholarly journals Declarations of Invalidity in Superior Courts

2019 ◽  
Vol 28 (3) ◽  
Author(s):  
Mark Mancini
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Short Paper ◽  
Lower Court ◽  
Stare Decisis ◽  
Binding Effect ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law

Section 52(1) of the Constitution Act, 1982 empowers courts to declare unconstitutional laws that are inconsistent with the Constitution “to the extent of their inconsistency.”1 Section 52 is a powerful tool in the hands of judges. For example, a claimant need not be directly affected by an unconstitutional law to raise a challenge to that same law,2 and once a court declares a law invalid under section 52, the law is effectively removed from the statute books.3 A key question is whether such a declaration, issued by one judge of a multi-member lower court, binds another judge of that same court. This phenomenon can be broadly described as “horizontal stare decisis.”4 But the Supreme Court has only explored horizontal stare decisis in the context of revisiting its own decisions.5 It has never opined on whether there is something special about horizontal stare decisis in lower courts, especially involving constitutional declarations under section 52; specifically, whether one judge is bound by another judge’s declaration of invalidity. This issue was directly confronted in the McCaw case at the Ontario Superior Court.6 Faced with a previous section 52 declaration of invalidity issued against section 33.1 of the Criminal Code, Spies J found that she was bound by that declaration. Accordingly, she found section 33.1 unconstitutional. In this short paper, after reviewing the salient facts of McCaw, I argue that Spies J’s ruling is broadly consistent with Supreme Court constitutional remedies doctrine, which is basically formalist in nature and permits no discretion on the part of judges to depart from the binding effect of a s.52 remedy. I then deal with two objections to this position. Ultimately, while one can question the coherence of the Supreme Court’s doctrine, McCaw represents a defensible application of it.

scholarly journals U.S. Supreme Court Upholds Presidential Proclamation Restricting Entry of Individuals from Covered Countries

2018 ◽  
Vol 112 (4) ◽  
pp. 741-745 ◽  
Keyword(s):  
Supreme Court ◽  
The United States ◽  
Establishment Clause ◽  
Lower Court ◽  
Security Interest ◽  
Foreign Countries ◽  
The Supreme Court ◽  
Legal Challenges ◽  
Travel Restrictions ◽  
Preliminary Injunction

On June 26, 2018, the U.S. Supreme Court upheld President Trump's most recent iteration of restrictions on entry to the United States by nationals from certain foreign countries. Following several rewrites of this travel ban, ensuing legal challenges, and lower court injunctions, the Court, in a five-to-four decision authored by Chief Justice Roberts, reversed the latest ruling of a lower court that had granted a partial preliminary injunction against the ban. Although acknowledging that there was considerable evidence tying the travel ban to bias against Muslims, the Supreme Court found that the plaintiffs were nonetheless unlikely to succeed either in their statutory claim that Trump lacked the authority to impose this ban or in their constitutional claim that the ban violated the Establishment Clause of the First Amendment. The Court accordingly reversed the lower court's injunction and remanded the case for further proceedings. The ruling, based on the Trump administration's asserted national security interest, leaves in place travel restrictions imposed on nationals of seven countries—Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—only two of which are not Muslim-majority countries.

scholarly journals Imprisonment during COVID-19 in Brazil: A Brief Review on the Prison Situation during the Pandemic

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Flávio Mirza Maduro
Keyword(s):  
Supreme Court ◽  
Status Quo ◽  
Historical Background ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
House Arrest ◽  
The Supreme Court ◽  
Lower Courts

This mini-review aims to reflect upon the conditions of penitentiaries in Brazil during times of the pandemic; it also brings to discussion the recent decision by the Supreme Court of Brazil which allowed for certain detainees to carry out their sentences under house arrest; in addition, it aims to discuss how the judges on lower courts have decided in light of the aforementioned Supreme Court ruling. By outlining the conditions of imprisonment that can be observed in the jailing system, the authors seek to critically reflect upon the role of justice in the society during times of hardship. The authors begin by tracing a historical background in a concise way, in order to elucidate how situations of illnesses and bereavement have developed during the years. After that, the authors compare judicial rulings involving the current prison status quo. To conclude, the authors seek to add to the debate joining the voices who cry out for more assertive measures in the preservation of life and health of detainees and prison workers.

scholarly journals The Contractual Interpretation of Tipping J

2016 ◽  
Vol 47 (2) ◽  
pp. 227
Author(s):  
Matthew Barber
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
The Supreme Court ◽  
Comprehensive Examination ◽  
The Future ◽  
Lower Courts ◽  
The Way

In the Supreme Court decision of Vector Gas Ltd v Bay of Plenty Energy Ltd, Tipping J put forward an approach to contact interpretation that, while indebted to that of Lord Hoffmann, was expressed differently and promoted the use of evidence of prior negotiations. Despite not gaining the support of any of the other sitting judges, this approach was swiftly taken up in the lower courts and, until recently at least, seems to have been accepted as representing New Zealand law. This article attempts a comprehensive examination of Tipping J’s approach. It concludes that, while coherent in principle, the detail of the approach is flawed in a number of ways, especially the way in which evidence of subsequent conduct is assumed to work. The future of Tipping J’s approach is considered.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

Summary Procedures in Israel and Abroad

1967 ◽  
Vol 2 (2) ◽  
pp. 210-231 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
European Institutions ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of ◽  
New Israel ◽  
Rules Of The Game ◽  
Summary Procedure

The new Israel Civil Procedure Rules, 1963 re-enact in rr. 269–82, with certain amendments, rr. 241–50 of the Palestinian Civil Procedure Rules, 1938 dealing with “Summary Procedure on Specially Endorsed Statement of Claim”, which in their turn were a colonial version of Order XIV of the English Rules of the Supreme Court. A glance at some recent judgments in Israel shows a surprising number of cases in which doubts have arisen as to the application and scope of the Summary Procedure in general and the defendant's right to be heard in particular. One may wonder whether litigants and lower courts quite understand the rules of the game or whether the game is after all not as easy as might be expected of a summary procedure. And indeed, compared with institutions in continental Europe, where scores of thousands of claims are disposed of without discussion and complaint, our Summary Procedure seems inelegant and burdensome on plaintiff and defendant alike. It is the object of this study to compare it, and the procedure under the English Order XIV, with those European institutions. In view of the gap between Anglo-Israel and Continental notions of civil procedure it may be useful also to sketch the history of the various forms of action, viz. the (summary) trial by documents, the non-litigious executory instruments and the conditional command to pay.

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