Search

Serving on a jury 'constitutes the most direct way citizens participate in the application of our laws.' (1) It is, thus, 'self-evident' that discrimination--or even the appearance of discrimination--within the [...]

Given the complexity of habeas corpus law, (1) one can understand why 'fairminded jurists' (2) have disagreed over the circumstances under which a person in government custody may challenge his [...]

'[T]he biggest threat to US democracy since January 6.' (1) '[A] theory that could upend elections.' (2) 'It's Hard to Overstate the Danger of the Voting Case the Supreme Court [...]

At the heart of corporate governance are fundamental doctrines that limit court scrutiny of fiduciary and stockholder decisions: the business judgment rule limits scrutiny of informed director decisions and, as with Corwin cleansing, informed voting by 'disinterested' shareholders is accorded substantial deference. Only when, for example, the motivations of a director or controlling shareholder are sufficiently suspect would either the 'entire fairness' or 'enhanced scrutiny' standards of review apply. How to assess such motivations, however, is underdeveloped in the case law. This Article addresses this task in three areas, relying partly on a methodology for assessing a person's overall economic motivation flowing from the person's financial stakes in or directly relating to the corporation. The methodology, from the analytical framework for 'decoupling' (e.g., 'empty voting') introduced in 2006, deconstructs the person's 'overall economic interest' in a company's shares ('host shares') from such stakes by considering the net effect of the person's: (a) host shares; (b) 'coupled assets'; and (c) 'related non-host assets.' First, the Article offers a re-calibration of standards of judicial review of fiduciary decisions when a fiduciary has financial stakes on both sides of the challenged transaction (as with Elon Musk in the 2022 Tesla-SolarCity merger case). Dubious outcomes flow from the traditional approach to choosing from the triad of the business judgment rule, enhanced scrutiny, and entire fairness. We show, for example, how courts use entire fairness in circumstances not meriting such review, such as where a controller's percentage ownership stakes in the corporation and a counterparty are identical. We also offer a generalized approach methodically mapping the triad of zero, materially positive, and materially negative 'overall economic interest' to the triad of standards of review., Second, the Article shows that court deference to 'disinterested' shareholder decisions needs rethinking, due largely to the now overwhelmingly institutional ownership of public companies combined with the prevalence of new [...]

ABSTRACT: In his majority opinion, Justice Alito claimed that Dobbs would promote democracy by allowing the matter of abortion to be resolved by the people. He cited John Hart Ely, [...]

ABSTRACT: How the Supreme Court ought to implement the Free Exercise Clause has been one of the most controversial issues in U.S. rights discourse of the past fifty years. In [...]

INTRODUCTION I. THE SUPREME COURT'S INTERPRETATION OF THE ABILITY TO APPEAL REMAND ORDERS 1235 A. 28 U.S.C. [section] 1447(c) and (d) B. The Supreme Court's In Pari Materia Interpretation of [...]

The division of multistate business income among the states is accomplished through formulary apportionment. State formulary apportionment provisions increasingly rely on the receipts factor to divide income, sharpening the focus [...]

The 'supreme law of the land' includes 'this Constitution,' and federal officers are 'bound, by oath or affirmation, to support this Constitution.' In recent years, some people have argued that these words require oath-takers to be originalists and to follow the Constitution's 'original public meaning,' properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: the claim that the term 'this Constitution' mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours., I. 'TO SUPPORT THIS CONSTITUTION' Article VI of the Constitution says this: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all [...]

International arbitration must strike a balance between two often competing principles. On one hand, parties have an interest in obtaining a prompt and final decision resolving their dispute. On the other hand, both states and parties have an interest in assuring that arbitral proceedings are fair and consistent with basic notions of due process. The interplay between these two principles has led to the conclusion that judicial review of arbitral awards must be limited, thus the widespread notion that the only recourse against an award should be an annulment petition under limited grounds related to the jurisdiction of the arbitral tribunal, the integrity of the arbitral procedure, and the public policy of the arbitration's seat. However, that balance may conflict with the constitutional traditions of Spain and several Latin American states. The possibility of filing applications for constitutional injunctions for the protection of constitutional rights in those states begs the question: Is it possible to file an application for a constitutional injunction against an international arbitral award issued in an arbitration seated in a state that allows applications for constitutional injunctions against judicial decisions? This Article examines court decisions in Spain, Colombia, Peru, and Ecuador on the matter. As context, the Article analyzes the origins of applications for constitutional injunctions, the current contours of such applications, and the relationship between Latin American constitutionalism and international dispute settlement. Then, the Article turns to a discussion of each specific court decision. While Spain has rejected the possibility of filing applications for constitutional injunctions against arbitral awards, the Latin American states have reached the opposite conclusion. This Article argues that the approach taken by the Latin American states fails to strike an optimal balance between the principles of finality and fairness. Reconceptualizing the notion of a violation of public policy as a ground for annulment to include the protection of constitutional rights is necessary to reconcile long-held constitutional traditions with the promotion of international arbitration as a fair and efficient method for the resolution of transnational disputes., I. INTRODUCTION 232 II. APPLICATIONS FOR CONSTITUTIONAL INJUNCTIONS IN LATIN AMERICA AND SPAIN 237 A. The Origins of Applications for Constitutional Injunctions 237 B. The Modern Contours of Applications for [...]

The threshold issue of standing is a linchpin in the efficient and effective operation of the administrative and judicial systems. The test for standing varies slightly at the federal, state, [...]

We want the intelligence community to be aggressive in protecting us, but we want it to adhere to the law at all times. Of course, this requires that the laws [...]

Contents INTRODUCTION I. A DESCRIPTION OF THE IVERS LITIGATION A. The Original In Limine Motion to Exclude in the Federal District Court B. The Subsequent Motion for Clarification in the [...]

ABSTRACT The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 modified the standard of review that federal courts may use when reviewing the legality of a state court's judgment [...]

ABSTRACT Diagnostic tests have become indispensable in the rapidly growing field known as 'precision medicine.' Precision medicine tailors treatments to individual patients by using these diagnostic tests to identify how [...]

CASE AT A GLANCE A consulting firm claims that IRS Notice 2016-66, which requires the firm to collect and report certain client information to the IRS, is invalid for violating the Administrative Procedure Act. Failing to comply with the requirements of Notice 2016-66 could result in financial penalties administered as taxes under the Internal Revenue Code. The question presented is whether the Anti-Injunction Act, which precludes lawsuits 'for the purpose of restraining the assessment or collection of any tax,' bars such pre-enforcement challenges., CIC Services, LLC v. Internal Revenue Service Docket No. 19-930 Argument Date: December 1, 2020 From: The Sixth Circuit Introduction The Anti-Injunction Act (AIA or Act), 26 U.S.C. [section] 7421(a), [...]

This article is part of a (https://prospect.org/justice/what-to-do-about-the-court/) Prospect (https://prospect.org/justice/what-to-do-about-the-court/) symposium on judicial review and the separation of powers. The answer is not to eliminate judicial review. After a disastrous month [...]

Fight against ISIS/Daesh--self-defense against nonstate actors--German constitutional law--deployment of troops--parliamentary control--collective security DIE LINKE V. FEDERAI GOVERNMENT AND FEDERAI PARLIAMENT (COUNTER DAESH), Order of the Second Senate. At https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2019/09/es20190917_2bve000216en.html. Federal [...]

Imagine you find yourself in the following position. You represent a real estate developer who has been denied approval for a project by a local government. The developer previously challenged [...]

Introduction In the wake of the legal challenge to Quebec's law on state secularism, (1) Professor Gregoire Webber, lawyer Eric Mendelsohn, and Dean Robert Leckey jointly published a post. In [...]

A core principle of appellate adjudication is that a party must preserve issues to raise them on appeal. That means, as the Florida Supreme Court reaffirmed in Sunset Harbour Condominium [...]

INTRODUCTION Judicial deference doctrines have been under attack in the last few years. For example, Congress has tried multiple times to eliminate some forms of deference entirely (see, e.g., Separation [...]

ABSTRACT The forum non conveniens ('FNC') doctrine allows a federal court to dismiss a case from the U.S. legal system in favor of a more convenient foreign jurisdiction. When a [...]

Supreme Court of the United States--deference to foreign government filings--Federal Rule of Civil Procedure 44.1--determining foreign law ANIMAL SCIENCE PRODUCTS, INC. V. HEBEI WELCOME PHARMACEUTICAL CO. LTD., 138 S. Ct. [...]

For the past several years, the Committee on Civil Practice Law and Rules (CCPLR) of the New York State Bar Association ('NYSBA') has proposed an amendment to CPLR 5501. (1) [...]

Litigation over commercial and operational arrangements among affiliates are becoming more prevalent, as several recent Delaware cases illustrate. In such cases, there is a focus on when the transaction was timed, how it was initiated, structured and negotiated, disclosed to directors and how the approval of the directors and shareholders were obtained., Recent cases in the Delaware Court of Chancery and the Delaware Supreme Court involving commercial arrangements among affiliates provide guidance on the governance of portfolio and affiliated companies.Because Delaware litigation [...]

In 1993, the Florida Supreme Court announced its opinion in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), setting out the parameters for dismissing a case with prejudice, or [...]

Byline: Manuraj S The findings of the panel set up to assess judicial review in the United Kingdom may have significant and far-reaching repercussions, even in India. Recently, in a [...]

The term medical necessity or medically necessary appears only three times in the Patient Protection and Affordable Care Act (ACA)--Section 2707, Section 520K, and Section 9007--and none of these sections [...]

Introduction When and how does the Parliament of Canada examine proposed legislation for its compliance with the Canadian Charter of Rights and Freedoms? (1) While the Federal Court has observed [...]

For Thomas Hobbes, nothing illustrated the 'inconstant use of words' better than the confusion between 'Counsels and Commands,' for the words 'Doe this,' he said, 'are the words not only [...]

II. THE SIGNIFICANCE OF FORBIDDEN LEGISLATIVE INTENT UNDER CURRENT DOCTRINE Beyond questions concerning the Supreme Court's aims when it asks whether a legislature had constitutionally forbidden intentions looms a further [...]

In litigation under the Equal Protection, Free Exercise, Establishment, Free Speech, and dormant commerce clauses, among others, the Supreme Court sometimes inquires whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent. In a comprehensive reexamination of the nature and significance of forbidden legislative intentions, purposes, and motivations, this Article shows that the Court's references invoke varied senses of legislative intent, some of which are subjective and others objective, some of which are coherent and others of which are incoherent. The Article also demonstrates that the Court has provided disparate indications of the significance that should attach to a finding of forbidden intent. These include automatic statutory invalidation, the application of strict judicial scrutiny, and further inquiry into whether the legislature, absent a forbidden motivation, would have enacted the same statute anyway. After mapping confusions in current law, this Article argues that courts should never invalidate legislation solely because the legislature acted with forbidden intentions. Substantive tests of validity should ultimately determine constitutionality. Nevertheless, the Article defends a role for intent-based inquiries--pursuant to intelligibly specified rules for ascribing intentions to multimember bodies--in triggering elevated judicial scrutiny under some constitutional provisions., CONTENTS I. CONCEPTIONS OF FORBIDDEN OR DISCRIMINATORY INTENT IN CURRENT CONSTITUTIONAL DOCTRINE 534 A. Subjective Conceptions of Legislative Intent 1. Collective Intentions 2. Counting-Based Ascription Rules 3. Aggregation of Individual [...]

What is good, true, and just in religion will not always comport with the law's view of the matter, nor will society at large always properly respect conscientious adherence to [...]

'We are all broken by something. We have all hurt someone and have been hurt. We all share the condition of brokenness even if our brokenness is not equivalent.... We've [...]

CASE AT A GLANCE This case is about the timing of judicial review. In particular, landowners can ask the U.S. Army Corps whether the Clean Water Act applies to certain [...]

For decades, it has been considered an 'axiom of federal and Florida law that written agreements to arbitrate are binding and enforceable.' (1) This wasn't always true. Before the enactment [...]

C. RECOMMENDATIONS DIRECTED TO FEDERAL AND STATE LEGISLATURES AND SUPREME COURTS 1. The United States Supreme Court, state supreme courts, and legislatures should require open file discovery in all felony [...]

While most prosecutors adhere to the maxim that their primary task is to obtain just results, there are some who violate their ethical responsibilities in order to rack up convictions. This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. This article summarizes the rules requiring all members of the bar to report unethical conduct. We focus particularly on lawyers who serve in prosecutors ' offices, defense lawyers, and trial and reviewing court judges and their lawyer clerks, each of whom has a personal, non-delegable responsibility to report their knowledge of ethical breaches to disciplinary authorities. In addition, the article identifies reforms to the justice system designed to reduce prosecutorial abuses: (1) substituting for the Brady rule a verifiable open-file pretrial discovery requirement on prosecutors; (2) instead of invoking harmless error, requiring reversal of convictions if serious prosecutorial misconduct is proven; (3) identifying errant prosecutors by name in trial and appellate opinions; (4) providing prosecutors with qualified instead of complete immunity from civil damages for misconduct; and (5) authorizing the Department of Justice's Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors. The article also proposes that attorney disciplinary bodies adopt changes designed to more effectively discover and sanction misbehaving prosecutors. Lawyer organizations and bar associations are urged to speak out when prosecutors deviate from appropriate conduct, and law schools are encouraged to include instruction on ethical rules peculiar to the criminal practice., TABLE OF CONTENTS INTRODUCTION I. LACK OF DISCIPLINE FOR PROSECUTORIAL MISCONDUCT A. Examples of Cases Involving Prosecutorial Misconduct with No Resulting Discipline B. Surveys and Articles Illustrating Lack of Discipline [...]

This article has two modest aims pertaining to the Florida Supreme Court's discretionary jurisdiction under FLA. CONST. art. V, [section]3(b)(3) to review 'any decision of a district court of appeal...that [...]

Seeking a stay in district court litigation pending post-grant proceedings (1) can be a powerful tool for a party sued for patent infringement. Often, the decision to stay the case [...]

When the US Court of Appeals for the Federal Circuit issued its decision in In re Cuozzo Speed Technologies in February 2015--the first decision in an appeal from an inter [...]

I. INTRODUCTION The Court of Appeals has engaged in sharp and divisive debates on the preservation rule over the past few years. These debates are important in light of how [...]

2. The Mechanics of Foreign Hard Look Review In transferring hard look review to foreign relations law, four issues are particularly important: how the doctrinal analysis changes from domestic to [...]

For decades, courts and scholars have been engaged in a protracted and largely polarized debate over a seemingly simple question: how should courts address cases that implicate foreign affairs? On [...]

'BRIDGE OF VARVARIN.' Nos. 2 BvR 2660/06,2 BvR 487/07. At http://www.bundesverfassungsgericht.de. Federal Constitutional Court of Germany, August 13, 2013. In the Bridge of Varvarin case, the Federal Constitutional Court of [...]

Many of the Supreme Court's cases involving the federal habeas claims of prisoners convicted in state court in the years since the Warren Court find that the prisoner's constitutional challenge [...]

Federal appeals Judge A. Raymond Randolph is an admirer of the 18th century English critic Samuel Johnson. But it was Nick Carraway, the narrator of F. Scott Fitzgerald's The Great [...]

ABSTRACT This Article examines the concept of deference as it affects First Amendment speech rights under the Roberts Court. Using six recent decisions as analytical springboards, including high-profile disputes in [...]

Over the past decade, Ohio, California, Florida, and other states commissioned over a dozen separate, independent scientific assessments of their deployed or contemplated electronic voting systems. Each published report documented [...]