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Copley v. United States involved a question at the intersection of tax law and bankruptcy law: can a debtor invoke bankruptcy exemption rules to shield an anticipated income tax refund from offset by the Internal Revenue Service? When the Fourth Circuit Court of Appeals was presented with this question of first impression — a question that has divided bankruptcy courts in recent years — it held that the IRS right of offset prevails over the debtors’ right of exemption. To date, Copley is the only circuit court opinion that rebuffs the so-called “majority view” on this question while also explicitly finding the income tax refund to be part of the bankruptcy estate. The stakes are significant for the IRS as a creditor, and this outcome underscores the primacy of tax offsets as a collection tool for the agency. As this essay describes, bankruptcy lawyers and tax lawyers alike need to be aware of this decision and the practical implications thereof so that they can advise debtors accordingly.

By making the App Store the only official channel for iPhone owners to buy apps, Apple has created the only market in which iPhone owners and app developers may transact their business. Apple exploits the bottleneck that it creates by imposing a 15 percent or 30 percent commission on transactions between iPhone owners and app developers. The array of Apple litigation elicited by this conduct may pose a case of first impression, since there does not appear to be a pigeonhole for Apple’s conduct. Apple neither buys nor sells third-party apps and therefore it does not exercise monopsony or monopoly power. If plaintiffs frame their antitrust challenges correctly, a court will have to determine whether Apple’s conduct—use of its proprietary technology and threats aimed at both app developers and iPhone owners—offends Section 2 of the Sherman Act. If the court finds that Apple has violated Section 2 of the Sherman Act, then it must also decide who has suffered antitrust injury and who has standing to sue under Section 4 of the Clayton Act. We offer an economic analysis of these issues.

Traditionally, under the “silent witness” theory, when video-surveillance recordings are authenticated and admitted at trial, the video “speaks for itself.” However, with increasing frequency, courts have permitted witnesses to provide lay opinion identification testimony about individuals in the surveillance video. The testimony is offered as lay opinion testimony that assists the jury, particularly in cases where the video is of poor quality, the subject’s face is difficult to see, or the subject’s appearance has changed by the time of trial. Recent state court opinions (including several state supreme courts as a matter of first impression) have upheld the admission of lay opinion identification testimony in an overly lenient manner that should be addressed. The primary problem with this kind of lay opinion testimony is that it poses challenges to effective cross-examination, particularly in criminal cases in which the witness is a law enforcement officer. Cross-examination that attempts to test the officer’s testimony may be ineffective or, worse, harmful, to the extent that it attempts to explore the officer’s familiarity with a criminal defendant. Courts have developed some procedural safeguards to protect against abuse of this form of testimony, but they are insufficient and fail to ensure effective cross-examination in all circumstances. This Article proposes additional safeguards that courts can use to moderate the use of lay opinion identification testimony related to surveillance video, while permitting such testimony when it is helpful to the jury in determining an issue of fact.

Curver Luxembourg, SARL v. Home Expressions Inc. is a case of first impression for the Court of Appeals for the Federal Circuit. The question on appeal is whether a design patent’s scope is tied to the article of manufacture disclosed in the patent. In this amicus brief, the Open Source Hardware Association (“OSHWA”) explains the potential effects on open source hardware development, and design practice generally, of untethering design patent protection from the article of manufacture disclosed in the patent. A large percentage of open-source hardware combines both ornamental and functional elements, and industrial design routinely involves applying design concepts from disparate fields in novel ways. To engage in this practice, open-source hardware designers need to know the universe of available source material and its limits. Further, understanding the licensing requirements of open-source hardware begins with understanding how the elements that make up that hardware may or may not be protected by existing law. Accordingly, while many creators of open-source hardware do not seek patent protection for their own creations, an understandable scope of design patent protection is nonetheless essential to their ability to collaborate with other innovators and innovate lawfully. The brief argues that the District Court in the case—and every district court that has considered the issue—correctly anchored the patented design to the article of manufacture when construing the patent. The brief explains that anchoring the patented design to the disclosed article of manufacture is the best approach, for several reasons. Connecting the patented design to the disclosed article of manufacture calibrates the scope of design patent protection to the patentee’s contribution over the prior art. It avoids encumbering the novel and nonobvious application of prior designs to new articles of manufacture, a fundamental and inventive practice of industrial design. It aligns the scope of design patent protection with its purpose: encouraging the inventive application of a design to an article of manufacture. This balances protection for innovative designs with later innovators’ interest in developing future designs. Finally, anchoring the patented design to the disclosed article of manufacture helps fulfill design patent law’s notice function by clarifying the scope of protection.

The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision. Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare. An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process. In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

The U.S. Supreme Court should grant the petition for certiorari, vacate the judgment of the U.S. Court of Appeals for the Tenth Circuit, and remand for immediate dismissal of the case. The Tenth Circuit held that Article II and the Twelfth Amendment of the U.S. Constitution prohibit a state from binding its presidential electors. It concluded that a state cannot require its electors to cast their electoral votes for the presidential candidate who received the plurality of votes within that state. Based on this reasoning, the court held Colorado’s Elector Binding Law, Colo. Rev. Stat. § 1-4-304, unconstitutional. The Tenth Circuit’s ruling purports to resolve a critical issue of constitutional law that presents a matter of first impression for this Court. It calls into question the validity of laws binding presidential electors in 29 other jurisdictions. It impacts the constitutional right to vote of tens of millions of voters throughout the nation, potentially undermining public confidence in the presidential election process. And it was wholly unnecessary. Respondents’ sole cause of action in the Second Amended Complaint was a claim under 42 U.S.C. § 1983 against Petitioner Colorado Department of State. The Tenth Circuit properly held that Respondents lacked standing to seek prospective relief concerning future elections, and a standalone claim for declaratory relief concerning the long-completed 2016 election would be useless, The only justiciable avenue for relief that had not become moot was Respondent Micheal Baca’s claim for $1 in nominal damages against the Colorado Department of State. As the Tenth Circuit itself candidly admitted, however, § 1983 does not create a cause of action for damages against state agencies. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The court nevertheless chose to adjudicate Respondent Baca’s claim because Petitioner had agreed to refrain from invoking sovereign immunity or arguing that § 1983 does not apply to it. Based solely on the parties’ agreement, the Tenth Circuit adjudicated an unsettled, far-reaching, and controversial question of constitutional law with nationwide impact, notwithstanding the complete lack of a valid underlying cause of action. “[T]he State and arms of the State . . . are not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 (1990). The Tenth Circuit erred by adjudicating a type of claim this Court has characterized as “nonexistent,” Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and “not . . . valid,” Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). The error was especially problematic in this case because it led the court to unnecessarily resolve an unresolved constitutional issue. Federal courts are required to avoid gratuitously adjudicating constitutional questions when non-constitutional grounds exist for resolving a case. See Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 (1946). The Tenth Circuit’s decision to award a remedy—damages against a state agency—that Congress did not authorize also undermined separation-of-powers principles. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74 (1992). Indeed, the Tenth Circuit allowed Respondent to bring against a state agency the very type of statutorily unauthorized claim for damages arising from constitutional violations that this Court expressly refused to recognize against federal agencies in FDIC v. Meyer, 510 U.S. 471, 486 (1994). By willfully basing its ruling upon an incorrect construction of § 1983, the Tenth Circuit also issued an unconstitutional advisory opinion in violation of Article III. See U.S. Nat’l Bank v. Independent Insurance Agents of America, 508 U.S. 439, 447 (1993). The Tenth Circuit was not bound by Petitioner’s purported “waiver” of the § 1983 issue and, especially under the circumstances of this case, should not have accepted it. This Court should grant certiorari for the sole purpose of vacating the Tenth Circuit’s gratuitous constitutional adjudication. Moreover, Article III’s adverseness requirements limit litigants’ ability to manufacture constitutional litigation through strategic stipulations and waivers. Arizonans for Official English, 520 U.S. at 71; Muskrat v. United States, 219 U.S. 346, 361-63 (1911); California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893). The parties’ cooperation in crafting a lawsuit to secure a judicial ruling on the constitutionality of Colorado’s Elector Binding Law further undermines this case’s justiciability. Again, vacating the Tenth Circuit’s judgment is the proper remedy.

This article analyses the application of the forum non conveniens and the judgment enforcement doctrines in the United States courts and questions its conformity with the concept of the rule of law. The concept of the rule of law, the general principle of international law, inter alia requires accessibility of law, that questions of legal right should be decided by law not discretion, and compliance by the state with its obligations in international law. The systematic analysis by the author of this article shows that the application of the two doctrines in the same dispute firstly might deny accessibility of law and later restrict the possibility to find a solution. Such application by the United States courts can create a lacuna in access to justice. Thus, the following denial of effective access to justice, applying the two doctrines, might not obey the concept of the rule of law.

CRI-Leslie, LLC v Commissioner is a noteworthy case of first impression involving the interpretation of Internal Revenue Code Section 1234A. In CRI-Leslie the U.S. Tax Court and the Eleventh Circuit U.S. Court of Appeals held against capital gain treatment for proceeds received as a result of the cancellation of a contract involving the sale of property. However, the greater importance of these decisions may be the illustration of the methodology used by the courts to interpret the Internal Revenue Code. Or, more to the point, whether the courts were justified in relying on the plain meaning rule rather than the legislative history in determining what Internal Revenue Code Section 1234A means.

In this paper I'm primarily concerned with framing the role of precedents in terms of reasons that they can give to judges in various legal systems. The main purpose of the paper is to identify the ways in which precedents can be authoritative in judicial reasoning. First, I'll explain the distinction between two kinds of precedents - precedents of solution and precedents of interpretation. Second, I'll identify the ways in which both precedents of solution and precedents of interpretation affect the reasoning of future courts, and focus on the cases in which this affection can be considered practically and epistemically authoritative. Finally, I'll consider the conditions under which it can be epistemically justified to treat precedents as authoritative, with a focus on the possibility of justifying the epistemic authority of interpretative precedents.

Compensatory Justice Jurisprudence took birth in the case of Rudal Sah when the Hon'ble Supreme Court broke one more link in the shackles of restrictive interpretation and added another feather in the cap of Article 21 to crown the personal life and liberty of people. Post Rudal, there are a series of judgments discussed in the present paper which strengthened the power of Supreme Court and High Courts to compensate the victims or their dependents for the excesses done by the State machinery or on failure of State to take care when there was a duty imposed upon them to exercise reasonable care. There are cases ranging from 'birth after vasectomy' to 'death due to open manholes' to 'custodial death' wherein Supreme Court has ventured out to grant compensation. Over a period of time, the Hon'ble Supreme Court has given a dynamic interpretation to the constitutional remedies provision under the Constitution so as to enhance the fundamental rights of an individual. The present paper examines the cases in which the Courts have awarded compensation for the excesses committed by the state or for negligence of the State as well as examine the self-imposed restrictions of Supreme Court in not awarding compensation in certain cases. However, the question always remain as to what is the rationale for providing such compensation and if granted how much is to be granted. Further what is the criterion for providing the compensation or it is ad hoc. What about the erring officials in discharging their public duty and finally whether judicial activism has led to judicial adventurism.

Equal employment is one of the most important and problematic questions of the labour market and of employment law as well. Within Europe we should pay special attention to the practice of the Court of Justice of the European Union because of its general legal practice. The study describes new cases which represent the development of equal treatment. Furthermore, special attention is paid to the European Convention on Human Rights emphasizing that this question cannot be described only from the point of view of labour law. The final conclusion is that the Court is in a difficult situation when judging correctly a labour law discrimination case since it has to take into consideration several aspects which interpretation is not united in the European labour law.

On June 28, 2012, the U.S. Supreme Court rejected legal challenges to the Patient Protection and Affordable Care Act, commonly known as ‘Obamacare,’ by a vote of 5-4. In National Federation of Independent Business v. Sebelius (2012) , a majority of the justices affirmed Congress's power to expand Medicaid and impose an individual mandate requiring people to obtain health insurance or face increasing tax penalties. The Court's decision was widely condemned as a dramatic expansion of federal power that threatened state sovereignty and individual liberty. The Court was heavily criticized for betraying the principles of federalism and limited government in the U.S. Constitution. The harshest criticism was reserved for Chief Justice John Roberts, a Republican appointee who—though considered a conservative justice—authored the Court's opinion and cast the critical deciding vote to uphold the Act. In reality, far from dramatically expanding federal power, the Court's decision placed groundbreaking limits on Congress's power to regulate commerce and use federal funds to pressure states into doing its bidding. These aspects of the Court's decision received less attention in the popular media, but may actually prove to have a more significant impact on the scope of federal regulation in the future. This installment of Business Law & Ethics Corner explains how those aspects of the Court's decision place new limits on the nature and scope of federal regulation.

In Heien v. North Carolina, the United States Supreme Court held that mistakes of law, when predicated on ambiguous statutes, may be reasonable under the Fourth Amendment. The Court did not, however, address the issue of whether mistakes of law may be reasonable where the underlying statute is unambiguous. This brief argues that the Court should address this question now and hold that mistakes of law, when based on unambiguous statutes, are per se unreasonable under the Fourth Amendment.

What role do the rules of interpretation in Articles 31 and 32 of the Vienna Convention on the Law of Treaties have to play as a potential agents of systemic integration and a coherent international legal system? Part of the answer lies in an examination of the practice of domestic courts which are increasingly called upon to undertake the task of interpreting treaties. This paper compares the practice of two superior courts – the Supreme Court of Canada and the High Court of Australia – in their approaches to the interpretation of international legal norms and their use of the interpretative principles in Articles 31 and 32. Despite the theoretical idea that the VCLT rules will, or should, encourage consistency of interpretation amongst varied interpreters, potential for divergences in interpretative technique (let alone outcome) remains. While both courts identify international law as a single system, and promote the role of Articles 31 and 32 as a means of ensuring uniformity of treaty application, historically the practise of the Supreme Court and High Court has been far from consistent, either internally or vis-a-vis each other. However, as the international law experience of these domestic courts grows, so too there appears to be an emerging consensus as to the preferred interpretative approach.

In this essay, I analyze the current state of deference that agency interpretations of statutes and rules receive from Wisconsin courts. My goal is two-fold. First, primarily for practitioners, I synthesize and clarify the law as it stands today, given the significant evolutions that have taken place in this area of law in the past few years. Second, for judges and scholars, my aim is to highlight the need for the Court to refound this body of law with a single landmark case setting forth a new, comprehensive treatment which both clarifies the doctrine and brings it into line with first principles.

The idea of justice according to law is exemplified by common law thought, in which principle and precedent are interlocked and interdependent. The law is constituted neither by its socially authoritative sources, regarded as social fact, nor by moral judgment about their *effects*. It is a moral construction of legal practice, interpreting its various rules and arrangements as parts of an integrated scheme of justice. Justice is sought by adherence to practice, understood in the light of the ideals it embodies on correct analysis. Legal obligations are moral obligations and legal reasoning is moral reasoning; law and morality should be conceived as mutually supporting parts of a unified normative domain. The requirements of justice are discerned, in large part, by exploration of the legal tradition in which particular issues arise for decision. It is an internal, interpretative inquiry, drawing on the moral resources of that tradition. Conflict between political ideals must be resolved internally as part of that inquiry; we are obligated to obey the law as correctly determined. These points are reinforced by critique of work by Dworkin, Greenberg, Hershovitz, and Waldron.

This paper exploits a relatively new approach to quantitative text analysis — topic modeling — to examine the subject matter of Supreme Court decisions, and in particular to analyze how the semantic content produced by the Court differs from the published decisions of the U.S. Appellate Courts. To conduct this analysis, we fit a topic model to the joint corpus of decisions (Supreme Court plus Appellate Court). The topic model enables a quantitative measurement of differences in semantic content between three corpora: the Supreme Court decisions, the Appellate Court decisions, and Appellate Court cases selected for review. We develop new methods to estimate these differences over time. We reach two findings. First, the Supreme Court has become substantially more semantically idiosyncratic in recent decades, as measured by the use of the topic distribution within a decision as a predictor of the authoring court. We then examine potential causes of this trend, isolating the use of the Court’s case selection power. We find that the topic model based measure of semantic difference between the cases selected for review by the Court does not appear to be increasing over time, indicating instead that the Court has become more distinctive in how it discusses a similarly distinct pool of cases. Normative implications and avenues for future research are discussed. This work demonstrates the utility of topic modeling as a valuable supplement to and/or replacement of hand-coded labels in the study of hierarchically arranged judiciaries. While this case study focuses on the U. S. Courts, extensions and broadening to other national and international judicial corpora can be readily accomplished. More generally, this work opens the door for broader application of topic models within empirical legal studies and related disciplines to study the rich textual corpora generated by legal institutions.

In this Article, I examine and reject the claim, made by the United States Supreme Court, that the first-sale doctrine is a “common-law doctrine with an impeccable historic pedigree” that reaches as far back as the 17th century and that “makes no geographical distinctions.” The Supreme Court’s depiction of the common law formed an important basis for the Court’s recent copyright decision in Kirtsaeng v. John Wiley & Sons, Inc. (2013), and is likely to reappear and influence the Court in a patent case in which it has recently granted certiorari, Impression Products, Inc. v. Lexmark Int’l, Inc. At issue in Lexmark is whether gray-market goods embodying patented inventions can be imported or sold in the United States without the permission of the U.S. patent holder. Focusing on the state of English law during the long eighteenth century—that is to say, in the years before and just after Congress enacted the first copyright and patent statutes in 1790—this Article demonstrates that although a domestic first-sale (or exhaustion) principle was evident in litigation in English courts, the common law did not recognize international exhaustion. On the contrary, the common law observed foreign legal boundaries and permitted right owners and their licensees to stop gray-market goods that embodied intangible rights.

A Depression-era Justice once suggested that in constitutional challenges the Supreme Court simply compares government action to the Constitution and decides “whether the latter squares with the former.” Chief Justice Roberts more prosaically compared the Justices to baseball umpires. Both expressed the conventional view that judges are and properly should be helpless to alter the outcomes dictated by law writ large. This is mostly false humility. Judges are nothing so much as illusionists, and their opinions sleights of hand which obscure that judges are not bound by the law in the powerful sense they suggest, but participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform constitutional law, and their opinions are the records of these performances. Performance theory supplies a better means of analyzing and criticizing Supreme Court decisions than ubiquitous attacks on judicial integrity. The idea that judges can uncover the law untainted by justice, social need, personal preference, or other judicial taboos rests on a largely rejected metaphysics that nonetheless retains a powerful cultural hold. The Court has its precedents, but they have no connection to a pre-existing natural order, and often not even to a determinate text. The Court’s readings of its precedents form a tradition that is rarely so fixed as to yield only one possible result in a new case. This makes the Court's constitutional decision making the purest of performances — holdings and citations are “iterated,” shorn from their original contexts and dropped into new ones, creating new and surprising principles that masquerade as old and established. It is banal and unhelpful to call this dishonest. The Justices cannot admit their performative role because it cannot be reconciled with still-powerful higher-law and rule-of-law myths. If law does not exist outside the case in which the judge applies it, if it is not a stable premise of judicial decision making but a function of the judge and the situation, how are we governed by “law rather than men”? The necessity of performing constitutional law stems from the general absence of an underlying text that can constrain that performance; there are, instead, multiple indeterminate texts, which makes performance inevitable. The Justices are always working without a net, performing constitutional law in opinions with nothing underneath. Sometimes they pull off a convincing performance, but sometimes they don't. It's important to know the difference.

Two of the great recurring questions in constitutional law are the authority of the Supreme Court and the proper method for interpreting the Constitution. Larry Alexander has, of course, written important work on both questions. And on each he takes a hard-nosed but somewhat unfashionable position: He maintains that the Supreme Court has supreme interpretive authority to which others should defer, and also that the Constitution is controlled by its original meaning. But one of these positions is, and must be, wrong.

Article 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’) lists the traditional “formal sources” of public international law, which the International Court of Justice (‘ICJ’) ‘is bound to have regard to.’ However, reading Article 38(1) literally, the Article does not mention the word “source” at all. Lex lata, the formal sources listed in Article 38(1) is not exhaustive, and does not reflect the legal realities of contemporary international law. With the ‘evolving nature’ of international law, the legal lacunas in Article 38(1) are more pronounced. There is a ‘brave new world of international law’ where other “material sources” (or “soft law”) ought to be considered.

Politically controversial decisions and divisive nomination battles at the U.S. Supreme Court reflect a disturbing reality — the Justices’ personal ideologies exert undue influence on the Court’s work. The ability of a mere majority of conservative or liberal Justices to impose their perspective creates three serious and related problems: Members of the public who share the perspective of the Court minority lack meaningful representation on many important issues, the judicial appointment process has become highly politicized as each side fights for a Court majority, and we increase the risk of ill-advised decisions. Better decisions are made when they are based on a diversity of perspectives. Accordingly, I argue for a Supreme Court that operates on an ideologically balanced basis. With ideological balance, the Court would provide meaningful representation to all, it would defuse the politicization of judicial appointments, and it would make wiser decisions. On the relevant metrics, a Court with ideological balance is superior to a Court that brings an ideological bias to its work. Indeed, it is difficult to identify a good reason for permitting the Court to function with a majority on one side or the other of the ideological spectrum. While we can point to the principle of majority rule to justify partisan control in the executive or legislative branches, majorities do not deserve special recognition in a judicial branch that should be guided by legal principle rather than popular sentiment. Drawing on approaches at European constitutional courts and several state supreme courts, I identify three models for achieving ideological balance on the Supreme Court and lower courts. I also discuss how a combination of those models would provide the best results.

Scholars who criticize Supreme Court doctrine regarding Native American Tribal Sovereignty have not yet addressed a fundamental constitutional concern. The Supreme Court has appropriated the Recognition Power through the judicially created doctrine of Implicit Divestiture, by which the Court presumes that Indian Tribes and Nations have lost all aspects of Tribal Sovereignty the Court deems “inconsistent” with the Tribes’ “dependent status.” This practice of “Judicial De-Recognition” violates the separation of powers. Implicit Divestiture has resulted in a presumption that “All sovereignty is lost except that which is specifically retained.” Through Implicit Divestiture, the Court has gone far beyond its normal judicial duties of regulating boundaries among sovereigns, constructing appropriate federal common law or implementing federal policy. In light of the Supreme Court’s recent pronouncements regarding the Recognition Power, now is a good time for the Court to re-evaluate its own role in Tribal Recognition. Rather than appropriating the authority to de-recognize Tribal Sovereignty, the Supreme Court should adopt a rule of “Explicit Divestiture.” That is, “All sovereignty is retained except that which is specifically and constitutionally surrendered.” Under this doctrine, the Court would give greater deference to the Political Branches to determine Tribal Sovereignty while simultaneously encouraging them to adopt clear statements of Federal Policy regarding the same, relieving the judiciary of the burden of sifting through the vast historical record to determine ambiguous federal policy and losses or retentions of sovereignty. The Court would also avoid violating the separation of powers. Such judicial deference to the political branches on the issue of Recognition would not preclude the Court from fulfilling its judicial role of considering the constitutional limits of Congressional, Executive, or State power to infringe upon traditional aspects of Tribal Sovereignty, and it would not preclude the Court from considering the possible constitutional status of tribes. The Court could still employ a “judicial shield” to protect Tribal Sovereignty from unconstitutional encroachments by the national or state governments, but it would lay down its “judicial sword” to intrude upon sovereignty itself.

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights. The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

The pending Supreme Court case Lexmark v. Impression Products reveals the full breadth of disagreement about the exhaustion doctrine in patent law. In practical terms, the doctrine could mean almost everything - a mandatory rule applicable to all domestic and international sales of patented goods - or almost nothing - an optional rule applicable only to domestic sales that patentees can easily avoid by contract. This essay shows that this breadth of disagreement arises from a more fundamental disagreement over the legal basis for the doctrine, with judges, lawyers and academics deeply divided over whether the doctrine is based on judicially fabricated common law or a specific statute. The essay reiterates and further clarifies our position, first advanced in our prior article, that the doctrine is based on statutory interpretation and is designed to avoid broad constructions of intellectual property rights that would interfere with the vast and complex body of common-law rules and statutory provisions governing commercial transactions. The essay also replies to two prior responses to our original article and concludes with a modest hope for what we think is a first necessary step toward clarity in this area: We hope that the Supreme Court will identify the legal basis for the exhaustion doctrine.

It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review. Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available). The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers' understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

While the Environmental Protection Agency works on development of greenhouse gas regulations for industrial sources, plaintiffs have sought to impose civil liabilities through the use of common law tort claims. In over eight years of litigation, however, plaintiffs have yet to proceed past the preliminary stages in a GHG common law suit, and the high court's American Electric decision further reduces the likelihood of a successful claim under federal law.

Morbidity and mortality (M&M) conferences run the gamut from heated adversarial affairs seen in traditional surgery departments, to more passive versions often seen in radiology departments. If done well, not only can M&M conferences have great utility as a resident training tool, but they also can be a vehicle for quality improvement and allow a first impression for how a complication might be perceived in court. The legislature and courts have deemed candid peer review so essential that such proceedings have been provided with a qualified privilege. To maximize the benefit of M&M conferences, an emphasis on accountability and robust debate, preconference preparation, broader faculty attendance, and an understanding of the ground rules are necessary. M&M conferences also should be solution oriented, and practice quality improvements and teaching modules should regularly be generated from such conferences. An example of a potential revised M&M conference is outlined.

Video games often feature a character that evolves into an iconic superhero. In a strange twist of fate, the video game medium will have the opportunity to become a superhero itself. The recording, comic book, and movie industries have rallied around video games as the case of Arnold Schwarzenegger vs. Entertainment Merchants Association and Entertainment Software Association reaches the Supreme Court of the United States. The case concerns a 2005 California ban on the sale of violent video games to minors. The law was later overturned by the District Court and the 9th Circuit Court on appeal. At issue is whether the law violates the First Amendment of the Constitution. Do video games deserve the full protection of the Constitution as a legitimate form of speech, or should it be limited due to its alleged effects on the psychological well-being of minors? This Article will look at the impact this case may have when it reaches the Supreme Court, an analysis of the issues that will be argued, and the history of legislation involving violent video games.

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described "professor" who had been referred to as "Canada's Beautiful Mind". He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. "Professor" Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries. This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a "hospital" because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.

There are few areas in EU integration law and policy in which the Court of Justice of the European Union (“the EU Court”) has not played a major role as a vehicle of integration and the “Area of Freedom, Security and Justice” (AFSJ) is no exception. One could even go so far as to say that the AFSJ represents a field of law in which the EU Court has been a particularly important player and in which the judicial process has helped to constitutionalize and transform this area to a central EU integration site. Hence, this chapter will focus on what I consider to be the most important judicial developments in AFSJ law and the role played by the Court of Justice in this European process, and as a “game changer” in this area of former third pillar law. The specific focus of this paper is the role of the Court as a guardian of constitutional rights and as an integrationist Court. The chapter is structured as follows. Section Two charts the trajectory of the AFSJ and the function of the Court in this story. Section Three focuses on the tactics of mutual recognition and how this has been a particularly successful method in the AFSJ as an expression of negative integration through the Court’s case law. In doing so, I will zoom in on a number of pertinent cases for the development of, in particular, EU criminal law and EU asylum law. Thereafter, I will discuss the relationship between the EU Court of Justice and other courts. Finally, I will tentatively ask to what degree the Court is acting as a trustee court for establishing and maintaining the AFSJ and streamlining it with the Charter of Fundamental Rights.

Unlike the US Supreme Court, the Indian Supreme Court has emphasized access. It has up to 31 judges mostly sitting in panels of two judges and rendering over 1,500 reported decisions in recent years. It is hard to know how a common law system of precedents would work in such a context. In order to examine the relationship between the Court's institutional structure and its use of precedents, we analyzed the approximately 48,000 reported decisions of the Court rendered between its creation in 1950 and 2010. At first glance the Indian Supreme Court does appear to be at best struggling to develop a consistent body of law. Judges of the Supreme Court tended to cite prior case law in only about half of decisions rendered for most of the Court’s existence, although recently they have been citing precedent in an increasing number of cases. When they do cite in a case, judges tended to cite very few decisions, only approaching an average of five decisions in recent years. Moreover, on average decisions of the Court are cited less than two times in the 10 years after they were made and more than half of the decisions were not cited at all in those 10 years. The apparently weak citation practices seem to point towards a Court that is unable to cope with a large caseload in a way that produces a consistent set of precedents. However, the full set of cases does not tell the whole story. If we look at only the 100 most important cases in any given year, judges on the Indian Supreme Court seem to be doing something not dissimilar from judges on the US Supreme Court. We examine both the full set of cases and the 100 most important cases to discuss whether the common law can flourish in such a context.

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces defines comparative international law as the process of “seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. While we agree with this volume’s other contributors that courts can play a significant part in diversifying how international law works across different systems, we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts — and therefore, those currently most needing study — are the international law interpretations of national legislatures.

In this article we investigate whether previous case law of the Court of Justice of the European Union constrains the Court, and whether it can have a legitimatizing effect on its decision-making empirically. While previous literature on citation networks takes into account entire documents in constructing citation networks, we develop a method to build a network of individual references to individual paragraphs of judgments, together with their adjacent texts. We argue that the latter play a key role in explaining the citation and the legal relevance of cited precedents, as well as its normative force. This in turn contributes to the debate on the power of courts to change the law via case law, one of the most persistent and contested themes in the study of courts.

This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribunal in Eli Lilly v. Canada (ICSID Case No. UNCT/14/2) by Amici. Amici are scholars whose research and teaching focus is intellectual property law (Dr. Burcu Kilic, Professor Brook Baker, HU Yuanqiong, Professor Cynthia Ho, Dr Luke McDonagh, Pratyush Upreti and Yaniv Heled, J.S.D.). The brief was accepted by the Tribunal with respect to Dr. Burcu Kilic (Washington DC, United States), Professor Brook K. Baker (Boston, United States), Professor Cynthia Ho (Chicago, United States), and Mr. Yaniv Heled J.S.D. (Atlanta, United States), denied with respect to the other academics for lack of standing.In September 2013, the Claimant Eli Lilly and Company (Lilly) launched a CDN $ 500 million claim against the Government of Canada under the North American Free Trade Agreement’s (NAFTA) investment chapter. The Claimant is challenging Canada’s invalidation of secondary patents related to the previously-known and patented active ingredients atomoxotine (Strattera) and olanzapine (Zyprexa), drugs used to treat attention deficit hyperactivity disorder, schizophrenia and bipolar disorder. Lilly is challenging the decision of Canadian courts to invalidate two patents for failing to comply with Canada’s requirement of usefulness after failing to prevail in Canadian courts. The challenge is under the “investment” chapter of NAFTA, rather than the IP chapter. Lilly argues that this “improper” and “discreditable” invalidation of its patents constitutes a NAFTA-prohibited “indirect expropriation” and a breach of NAFTA’s guarantee of a “minimum standard of treatment” for foreign investors. This case against Canada is a case of first impression and the first case pursuing investor-state dispute resolution (ISDS) with respect to intellectual property rights affecting pharmaceuticals, the case has heightened significance. The outcome of this case will be instructive about whether other foreign investors pursue future attacks on substantive policies embedded in national patent systems through the arbitral proceedings challenging differences in patentability standards that frustrate their “expectations”.Of particular concern is that this challenge may make countries hesitant to use legitimate flexibilities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). In addition, the invalidated patents are secondary patents that Eli Lilly seeks to use to extend its patent term after initial patents expired, but without substantial evidence that these new inventions are in fact useful. Although Canada bars such patents under the “promise of a patent” for usefulness that is unique, other countries similarly bar such patents, under different patentability doctrines.The Brief addresses, amongst other issues: • NAFTA Chapter 17 patentability standards • Patentability standards in Canada and their judicial interpretation• Secondary patents and patent evergreening • Evolving nature of patent law• Abuse of the system of international investment protection and misuse of the system• Adverse chilling effect of the case on efforts to enhance access to medicines globally

In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.

This article focuses on the Judicial Precedent and its authority under International Law. In this context, the historical background and actual authority of precedent in England and USA is analyzed. While the existence of binding precedent in International law remains a point of continuous debate, countries observably behave in a manner consistent with its existence. By analyzing the practices of international criminal court (ICC) and tribunals, such as, ICTR and ICTY, it argues that judicial decisions at International level are not binding. Further, this work discusses the practice of International Court of Justice (ICJ) in detail. It concludes that there is no formal binding precedent in International law and judicial decisions of the World Court are not binding but are taken into consideration by States. Finally, it argues that the precedent in World Court has developed International law and has significant place in international adjudication.

The Supreme Court in ParkingEye Ltd v. Beavis, joined to a revision of the common law on penalties in Cavendish Square BV v. Makdessi, declined to hold that an £85 charge for overstaying in a car park was unfair under European Union consumer protection law. This note asks, when will the UK’s highest court say contract terms are unfair against consumers? How does the Court perceive its role in furthering a charter of economic, social and consumer rights? Has the majority of the Court, in light of Lord Toulson’s powerful dissent, accurately interpreted the EU Court of Justice’s guidance and the purpose of the Directive? And finally, given the Court of Justice’s requirements for making a preliminary reference, and the fact that EU law directly binds every national court, can we regard ParkingEye as a precedent at all?

In June 2015, the US Supreme Court, in its Obergefell v. Hodges ruling, legalized same-sex marriage. Despite some recent evolutions on the issue, such step has not been taken yet by the European Court of Human Rights. The paper investigates if and how the US case law may constitute a decisive source of inspiration for the recognition of a European right to homosexual marriage.

Over the last fifteen years there has been a global movement to legalise same-sex marriage. Developments have been made in countries such as the United States of America (USA), South Africa, New Zealand and Colombia. However, the European Court of Human Rights (Court) – arguably the most progressive and active human rights court in the world – has not followed this movement and continues to deny the right to marry for homosexual couples. In light of the Court’s objective to protect and enforce human rights – it is perplexing to see the Court recognise equal legal status of same-sex couples to heterosexual couples, but then refraine from legalising same-sex marriage. This leads me to question why the Court has not interpreted the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention or ECHR) to include same-sex marriage?For over half a century, the Court has engaged in a range of human rights through its implementation of the Convention in its member states (states). However, this engagement has yet to secure the full protection of rights for the Lesbian Gay Bisexual Transgendered Queer and Intersex (LGBTQI) community as can be seen in the Court’s lengthy case law. The Court is not the only protector of human rights for the LGBTQI community; states as well as third parties like non-governmental organisations, also play significant roles in the fight for equality. I do not wish to draw attention away from these other actors, but rather look at what the Court could do to increase protection for LGBTQI persons, such as changing its stance on same-sex marriage.This puzzle of ‘why’ has a variety of answers in the existing literature. There is the normative perspective which asks ‘why the Court should protect same-sex marriage’. Further, the Court’s methodology has been critiqued when it sides with the state rather than the individual’s right to equality. Other critiques have tried to find whether there is a right to marry for same-sex couples through article 8 – right to respect for private and family life – due to the Court’s progressive reading of this right. These arguments are important to the same-sex marriage debate as they look to the Court’s judgments from different perspectives. However, it appears that these arguments lack a general legal analysis and reflection of the Court’s decisions. This is especially the case when the theories that exist have either been denied by the Court in their decisions or offer only normative arguments and not realistic practical guidance for what the Court can change.A recent study by Helfer and Voeten shows that states are more likely to legislate or judicially review in favour of the LGBTQI community if the Court has found a violation of the relevant right in that state. In light of more countries adapting to the Convention’s protections of LGBTQI people, one could surmise that it is only a matter of time before the Court interprets the Convention in accordance with legalising same-sex marriage and that constant litigation through the Court is the way forward.I agree that it is only a matter of time until the Court interprets the Convention to protect same-sex marriage; however, as my findings will show, article 12 has a more restrictive nature – that cannot be so easily broadened by constant litigation. I want to understand what will motivate the Court to make this decision. This leads me to question: under what conditions will right to marry under the Convention include a right to same-sex marriage?I have divided this overarching question into three research questions: 1) Can article 8 – including article 14 – be interpreted to allow for same-sex marriage? If not, then 2) Can article 12 be interpreted by the Court to protect same-sex marriage? If so, then 3) under what conditions will this be possible?To answer these questions, I begin with a brief general overview of the relevant articles and the margin of appreciation (to help introduce the reader to the relevant articles and term). I then structure this paper into three chapters: chapter 4 addresses my first question on whether same-sex marriage can be read into article 8. Given the Court’s interpretation of article 8, this is the more logical first step, as article 12 was not properly discussed in relation to same-sex marriage until 2010. Up until 2010, there had been attempts to broaden article 8 to include not only the recognition of partnerships but hopefully – at some point – marriage. Chapter 4 highlights the rate of progress in LGBTQI rights, beginning with the early cases before the European Commission on Human Rights (the Commission) and including the 2015 case: Oliari and Others v Italy (Oliari). This historical review illustrates how the Court has significantly broadened the scope of article 8. Based on this, I conclude whether the Court can now grant homosexuals the right to marry under article 8.Chapter 5 addresses the second research question on the application of article 12. I examine in-depth the Court’s interpretation of article 12, and what the Court perceives is within its limits regarding the right to marry. The inclusion of article 14 – prohibition of discrimination – will be addressed in both chapters as it provides another avenue for the Court to oblige states to legalise same-sex marriage. With a firm understanding of the Court’s current stance on this issue and the fact that neither articles 8 nor 14 are applicable, I answer the third question by illustrating the importance of the European consensus in the Court’s decision-making process. My central claim is that the Court will look to the European consensus if it to include same-sex marriage under article 12.In Chapter 6, I define the European consensus – given the division among scholars as to what constitutes a consensus – according to how it is applied by the Court in the same-sex marriage cases. This chapter concludes by arguing that a majority of 24 states legalising same-sex marriage is the necessary threshold for the Court to review same-sex marriage under article 12. I conclude by arguing that it is this magic number - 24 states - that will lead to the Court granting same-sex marriage under article 12. The implications of this claim are (i) all applications to the Court must focus only on article 12 as that is the only relevant right for same-sex marriage and (ii) rather than focusing on the Court, advocates should instead push for domestic legislation in states that do not have same-sex marriage.

This paper is a contribution to a symposium on the European Model Company Act (“EMCA”) in which I argue that a model company court powerfully complements the EMCA. A particular characteristic of company law complicates the intermediating role of a model act in a federal system. Because complex corporate transactions inevitably are associated with significant uncertainty, especially when they present conflicts of interest, transaction designers and legislative drafters tend to frame applicable contractual and legal rules as standards, such as fairness and equal treatment, rather than as rules. In turn, the effectiveness of a standard in the face of complexity and uncertainty depends on the experience and expertise of the reviewing court. The outcome is that a model company court complements a model company code. The analysis proceeds as follows. Part I considers alternative approaches to addressing related party transactions between a controlling shareholder and a corporation with minority shareholders: self-dealing may be addressed ex ante through structural prohibitions on the characteristics associated with private benefits. Alternatively, it can be addressed ex post by substantive review of the terms of related transactions. Part II then shifts attention to the role of courts: The effectiveness of a statutory strategy will depend on the quality and experience of the associated courts. Part III then reprises the argument that harmonization of the quality of judicial enforcement of corporate statutes may be more important than harmonization of the substantive law. In this respect, an EU level company court into whose jurisdiction a corporation may opt into is powerfully complement to a model company act. Recognizing that an optional E.U. level company law court is may not be established however powerful the supporting logic, Part III then endorses Michael Klausner’s soft law approach (in this volume) to providing some of the benefits of a sophisticated company law court available to all member state companies through on ongoing role for the EMCA drafters.

This paper presents a comparative discussion of the application of principles of international environmental law in supreme courts in Latin America. We construct a database and an illustrative sample of supreme court cases related to the environment since the Rio Declaration of 1992. This sample shows a wide range of principles of and approaches to environmental law in Latin America. Preliminary findings point to a strong harmonization in the application of the principle related to the public participation and participation of indigenous groups in development projects. However, other principles, such as the woman participation, are not widely disseminated or regularly applied in court arguments and sentences. Others international environmental principles such as precaution, polluter-pays and sustainable development are also part of this analysis. This paper concludes with arguments for stronger integration of environmental law principles in the region.

On 24 June 2015 the Dutch District Court in The Hague established that the Dutch government has a duty of care to mitigate dangerous effects of climate change and ordered a reduction of GHG emissions. The claimant, a Dutch Environmental group (the Urgenda Foundation), could not, according to the Court, rely directly on international agreements related to climate change, as these are inherently inter-state by nature. Instead, the Court interpreted the liability of the Dutch Government based in the tort of negligence (onrechtmatige daad) with reference to international law obligations, more specifically the international ‘no harm’ principle. In this regard the Court finds that specific obligations for the Dutch government arise from amongst others the UNFCCC, its protocols and COP decisions. This case is deemed a landmark case in climate change litigation because it is the first time that a court orders GHG emissions limitations on the basis of sources other than statutory mandates. This paper will discuss the court’s reliance on international law and international policy and place it in the broader context of domestic courts role in enforcing and qualifying climate change ‘law’ as the bridge between scientific knowledge and political action.

The courts in Myanmar have been a topic of heated discussion in the post-2011 environment. Yet in contrast to many other areas of governance and administration, the courts are one sector where reform has been less evident or obvious. In fact, while many have been calling for greater judicial independence, the current framework in effect pulls in the opposite direction towards centralisation and executive-military control over the courts. This raises the broader question: what is the role of the courts in Myanmar post-2011? The three top parallel courts in Myanmar are the Constitutional Tribunal, the Courts Martial and the Union Supreme Court. The Constitutional Tribunal is a new institution introduced in 2011, but has heard only about 11 cases, has been marginalised and therefore lacking in political influence. The Courts Martial are a black hole in terms of academic research, given the difficulties of obtaining access to information on these courts. The Supreme Court is therefore the most active, dealing with hundreds of cases per year, and is perhaps the most politically influential court of the three. This chapter therefore focuses on the role and function of the Supreme Court, and the courts below it, under the quasi-civilian regime. The literature around the role and politics of courts, and of courts in authoritarian regimes, is vast and complex (see for example Ginsburg and Moustafa 2008). In this chapter I unpack the role of the courts in Myanmar and its relationship to the other institutions of governance. First, I show how the composition of the Supreme Court points to the influence of the executive over the courts. Second, the authority of the Supreme Court in terms of its original and appellate jurisdiction, and its reporting, law- making and supervisory functions are focused on keeping the lower courts in-line. Third, the new authority the Supreme Court has to hear cases concerning complaints against government decisions is a form of procedural authoritarianism to keep lower courts in check. Finally, I show how the court’s jurisdiction is subject to change by parliament, and recent legislation affecting family law will raise new and difficult social and legal questions for the courts in the future.

Should a law enforcement officer’s mistake of law constitute reasonable suspicion? According to the Supreme Court, the answer is yes. In Heien v. North Carolina, the Supreme Court surprisingly took the minority approach and held that a law enforcement officer’s mistake of law could equate to reasonable suspicion — provided that the mistake was objectively “reasonable”. In doing so, the Court reached the wrong conclusion. This Article is the first to urge state courts to provide greater Fourth Amendment protections than the low standard set forth in Heien. States should not adopt Heien and instead should extend greater individual privacy protections for four reasons. First, Heien left many unanswered questions, so if states adopt the standard set forth under Heien, it is unclear exactly what the state is adopting. These unanswered questions include: what is a reasonable law enforcement officer’s mistake of law and what types of mistakes can be considered in a reasonableness analysis? Second, states should extend greater privacy protections than Heien because of well-established common law principles. Ignorance of the law is no excuse for citizens, so it should not be an excuse for law enforcement officers. Additionally, ambiguity in statutes should not be held against criminal defendants.Third, law enforcement mistake of law violates governmental separation of powers. Law enforcement officers should not exercise the judicial function of interpreting laws or legislative function of creating laws one might reasonably believe exists, but in actuality does not. Fourth, Heien is inconsistent with Fourth Amendment jurisprudence. Case law relating to the good faith exception to the exclusionary rule presumes that a mistake of law equates to a constitutional violation, yet Heien says just the opposite — that a mistake of law does not necessarily equal a constitutional violation. Because states should extend greater privacy protections and not allow law enforcement officer’s mistake of law to rise to the level of reasonable suspicion, states should apply the exclusionary rule to evidence obtained during a stop premised on a law enforcement officer’s mistake of law.

Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights' case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges' reasoning: laws targeting homosexual conduct; federalism; and the death penalty. It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. The article argues that the foreign jurisprudence should not have been ignored, but rather should have been used better, investigated deeper, and utilized as an informational tool to aid the court's reflections than merely to bolster its already decided interpretation of the U.S. Constitution. The basic requirement for using foreign laws correctly is an adequate understanding of what such laws mean in the legal order from which they come and how they resonate with the context in which they are imported.

While not obvious at first sight, in many modern economies, the position of a monetary authority is similar to the position of the highest-level court (Goodhart (2002)). For example, both bodies are expected to operate independently even though there are crosscountry differences in what independence entails. In the United Kingdom, the highest court is the Appellate Committee of the House of Lords (in short: Law Lords). There is a consensus among legal scholars that the powers of Law Lords with respect to the legislature are less wide ranging in the United Kingdom than the United States’ counterpart, the supreme court (Goodhart and Meade (2004), p.11). In economic jargon one says that the Supreme Court has goal independence whereas the Law Lords have instrument independence.

The article compares, on the issues of religious symbols in public space, the case law of the European Court of Human Rights, and that of the US Supreme Court. The enquiry aims at outlining a comparison between the contents of the decisions, not between the Courts: one is a constitutional court, the other an international court which in the late decades has been a breakthrough in the European system of guarantees. The main points emerged through the comparison are: first of all, the European Court, unlike the US SC, is clearly engaged in building a European secularism that leaves religious symbols outside the public space. The Strasbourg Court adopts a conception of secularism which, in principle, is very different from American secularism. Secondly, although in different ways, both Courts employ arguments based on tradition and history, to the detriment of individual and minority interests. Thirdly, there is a certain deference towards the choices made by national authorities: for the critics of the Roberts Court, this attitude deserves to be stigmatized in a constitutional jurisdiction.

One of the more important innovations in the study of how citizens assess the U.S. Supreme Court is the ideological updating model, which assumes that citizens grant legitimacy to the institution according to the perceived distance between themselves and the Court on a unidimensional ideological (liberal-conservative) continuum. Moreover, citizens are thought to update this calculation with every new salient Supreme Court decision. The model’s requirements, however, do not seem to square with the long-established view that Americans are largely innocent of ideology. Here, we conduct an audit of the model’s assumptions using five empirical tests applied to a nationally representative sample. Our general conclusion is that the ideological updating model, especially when supplemented with the requirement that citizens must become aware of Court decisions, simply does not square with the realities of American politics. Students of Supreme Court legitimacy may therefore want to search for other theories of legitimacy updating.