Economic Reality at the Core of Apple

2021 ◽  
pp. 0003603X2199703
Author(s):  
Tirza J. Angerhofer ◽  
Roger D. Blair
Keyword(s):  
Supreme Court ◽  
Antitrust Enforcement ◽  
Ad Valorem Tax ◽  
Demand And Supply ◽  
The Core ◽  
App Store ◽  
The Supreme Court ◽  
Considerable Confusion ◽  
Economic Reality ◽  
Ad Valorem

In Apple, Inc. v. Pepper, the Supreme Court failed to recognize the economic reality at play which sparked considerable confusion and debate about the continued vitality of Illinois Brick. Apple used proprietary technology and threats to both iPhone owners and app developers to compel them to conduct their business in Apple’s App Store. In so doing, Apple created a presumably unlawful bottleneck. This enabled Apple to impose a 30% ad valorem tax on each transaction. The tax, that is, the antitrust damage, is borne by both the iPhone owners and the app developers according to the relative elasticities of the demand and supply. Distributing damages in this way leads to effective antitrust enforcement that does not reward the wrongdoer with ill-gotten gains nor lead to duplicative damages and complex apportioning. Our analysis clarifies the economic reality of the Apple case and provides useful guidance for handling future bottleneck cases.

Constitutional Law and Islamic Hijabs in Kenyan Schools: The Supreme Court’s Specious Constraint in Methodist Church in Kenya

2021 ◽  
Author(s):  
Brian Sang YK
Keyword(s):  
Supreme Court ◽  
Constitutional Rights ◽  
Religious Expression ◽  
Methodist Church ◽  
The Core ◽  
Majority Decision ◽  
Legal Questions ◽  
The Supreme Court ◽  
Core Issue ◽  
The Right

ABSTRACT This article analyses the content and implications of the Supreme Court of Kenya’s judgment in Methodist Church in Kenya v Mohamed Fugicha and 3 Others. There, by majority decision, the Supreme Court overturned the Court of Appeal’s ruling that reasonable accommodation be made for the wearing of Islamic hijabs by female Muslim students in Kenyan schools. While Methodist Church in Kenya was expected to clarify the scope of the right to manifest religious belief in Kenya, the Supreme Court used specious logic based on legalism to avoid that issue. This article shows how the majority decision contradicts principles of enforcement of constitutional rights by focusing unduly on procedural technicalities, avoiding the core issue of permissible restrictions on religious expression and leaving key legal questions unresolved. It also highlights the well-reasoned dissenting opinion that addressed the core issue and which has crucial import for future development of religious freedom jurisprudence in Kenya

scholarly journals Sounding the Alarm: Government of the Republic of Namibia v LM and Women's Rights during Childbirth in South Africa

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Camilla Marion Sperling Pickles
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Gender Stereotype ◽  
South African Context ◽  
The Core ◽  
The Supreme Court ◽  
African Context ◽  
The Republic ◽  
Labour Pains

Government of the Republic of Namibia v LM [2014] NASC 19 (hereafter the LM case) concerns the involuntary sterilisation of women during childbirth. The Supreme Court of Namibia found that obtaining consent during the height of labour is inappropriate because labouring women lack the capacity to consent because of the intensity of their labour pains. This article recognises that the LM case may make its way into current litigation strategies against involuntary sterilisations in South Africa and for this reason I evaluate the soundness of the court's reasoning in the LM case. I argue that the court relied on the harmful gender stereotype that labouring women lack the capacity to make decisions, I expose this stereotype as baseless and demonstrate the harmful consequences of its perpetuation. Finally, I demonstrate why the reasoning in the LM case is particularly problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth.    

scholarly journals Governing Through Harm to Promote Liberal Values: The Canadian Approach to Obscenity and Indecency Following R. v. Labaye

2011 ◽  
Vol 36 (4) ◽  
pp. 283-312
Author(s):  
Kirsten Kramar ◽  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Expert Opinion ◽  
Political Values ◽  
The Core ◽  
Proper Functioning ◽  
Societal Norms ◽  
The Supreme Court ◽  
History Of ◽  
The Impact

This paper traces the history of the Supreme Court of Canada’s construction of harm(s) tests in the context of its obscenity and indecency jurisprudence from Hicklin (1868) through Labaye (2005). At the core of these tests is a functionality linked to presumptive societal norms. The contemporary harm assemblages are risk-based, and concern the maintenance of cohesion, organized in relation to the impact of obscenity or indecency on abstract political values rather than concretized sexual subjects. What is more, the Labaye Court has constituted an expanded harms-based test which reifies risk of harm as tantamount to proven harm while propagating the nimble lie that Courts are required to rely on expert opinion evidence of harm, when the Courts, in fact, rely on their own judgment. Ultimately, the Court is still concerned in the main with the proper functioning of society, targeting those whose conduct is deemed harmful to a particular view of society.

11. Unfair terms in consumer contracts

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Supreme Court ◽  
Subject Matter ◽  
Good Faith ◽  
Broad Application ◽  
Freedom Of Contract ◽  
The Core ◽  
The Supreme Court ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Court Of Appeal

This chapter addresses the Directive on Unfair Terms in Consumer Contracts and its implementing legislation: the Unfair Terms in Consumer Contracts Regulations 1999 and the Consumer Rights Act 2015. The legislation is of broad application to unfair terms in consumer contracts. The fairness test, with its reference to good faith, and significant imbalance in the rights and obligations of the parties, is considered. The ‘core exemption’, from the fairness test, of price terms and those dealing with the main subject matter of the contract is looked at. The tensions in the different approaches to ‘core exemption’ in the Court of Appeal and the Supreme Court in Abbey National, and the different emphases on freedom of contract, and protection of the weaker party, are highlighted.

INDIRECT ENRICHMENT IN THE SUPREME COURT

2017 ◽  
Vol 76 (3) ◽  
pp. 490-492
Author(s):  
Rajiv Shah
Keyword(s):  
Supreme Court ◽  
Unjust Enrichment ◽  
Investment Trust ◽  
The Supreme Court ◽  
Economic Reality ◽  
Customer Purchases ◽  
Court Of Appeal

A customer purchases services from a supplier to which VAT at the applicable rate is added but VAT was not actually due. Is the customer able to recover these payments by bringing an unjust enrichment claim against the Revenue and Customs Commissioners? “Yes”, answered the Court of Appeal, on the basis that as a matter of “economic reality” the Commissioners were enriched at the expense of the customers, and that such an enrichment was unjust because VAT was not actually due. Lord Reed, giving the unanimous judgment of the Supreme Court, reversed that decision: Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2017] UKSC 29; [2017] 2 W.L.R. 1200. The customers did not have an unjust enrichment claim against the Commissioners because their enrichment was not “at the expense of” the customers.

Pre-constitutional Laws in India: Beyond Presumption of Constitutionality

2020 ◽  
Author(s):  
Snehil Kunwar Singh
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian Law ◽  
Judicial Scrutiny ◽  
The Impact

Abstract Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.

scholarly journals The Revival of the Right to Property in India

2015 ◽  
Vol 10 (1) ◽  
pp. 23-52
Author(s):  
Tom ALLEN
Keyword(s):  
Supreme Court ◽  
Social Issues ◽  
Social Revolution ◽  
Constitutional Design ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right

AbstractOver the last six decades, the Supreme Court of India has created and re-created a right to property from very weak textual sources, despite constitutional declarations calling for social revolution, numerous amendments to reverse key judgments, and even, in 1978, the repeal of the core constitutional provisions guaranteeing a right to property. This article challenges the usual account of these developments. The primary contention is that the 1978 repeal is much less significant than it appears, due to the Court’s creative interpretation of other constitutional provisions. The Supreme Court has consistently advanced liberal models of constitutionalism and property, despite the influence of other models on the original constitutional design and later amendments. This article also examines whether the Court’s liberalism is compatible with the egalitarian values of theConstitution, and how its position will affect attempts to address social issues relating to the distribution of property in India.

scholarly journals Antitrust Arbitration and Illinois Brick

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Federal Court ◽  
Court Decision ◽  
Antitrust Law ◽  
Antitrust Enforcement ◽  
The Supreme Court

For nearly forty years, since the Supreme Court decision in Illinois Brick,federal antitrust law has prevented indirect purchasers from complaining ofovercharges caused by antitrust violations. The Court reasoned that directpurchasers are the best and most motivated antitrust plaintiffs. But in its2013 Italian Colors decision, the Court made it extremely difficult fordirect purchasers to bring an antitrust claim in federal court. In doingso, it undermined the policy rationale for Illinois Brick, opening the wayfor courts to reconsider the ban on antitrust enforcement by indirectpurchasers.

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

scholarly journals Ochberg v CIR: No “benefit” to the benefactor

2019 ◽  
Vol 19 ◽  
pp. 25-46
Author(s):  
K Coetzee ◽  
P Van der Zwan ◽  
D Shutte ◽  
H Van Dyk ◽  
EM Stack
Keyword(s):  
Supreme Court ◽  
South African ◽  
Thematic Analysis ◽  
Income Tax ◽  
The Supreme Court ◽  
Before And After ◽  
Economic Reality ◽  
Gross Income ◽  
Definition Of ◽  
A Company

This article analyses the South African case of Ochberg v CIR, which dealt with the question whether shares issued by a company to Ochberg, who was, for all intents and purposes, the sole shareholder, in consideration for services rendered and an asset provided to the company, constituted “income” in terms of the definition of “gross income” in section 7(1) of the Income Tax Act No. 40 of 1925 (as it then applied). Ochberg’s contention was that he had received no benefit from the additional shares issued as the value of all the shares issued had been the same both before and after the issue of the shares. Accordingly, there had been no increase in his wealth and thus no income had been received. The majority decision (two of the five judges dissenting) of the Appellate Division of the Supreme Court held that the shares were “income” and had to be valued at their nominal value. The article first provides a glimpse into the life of Isaac Ochberg, who was a substantial benefactor to charitable causes. It then presents a thematic analysis of the four separate judgments set down in the case, and finally, discusses certain tax principles arising from the judgments. In conclusion, the article considers to what extent Ochberg benefited from the transaction in terms of the Haig-Simons model of taxation and the economic reality of the transaction. The lasting value of the decision is demonstrated with reference to citations of Ochberg v CIR in a number of more recent landmark cases.

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