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Copyright of Sakarya University Journal of Law Faculty (SHD) is the property of Sakarya University Journal of Law Faculty (SHD) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Collected Papers of Zagreb Law Faculty / Zbornik Pravnog Fakulteta u Zagrebu is the property of Sveuciliste u Zagrebu, Pravni Fakultet and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Federal Supreme Court - STF, in a recent historic decision, uttered in the process of Arguição de Descumprimento de Preceito Fundamental n° 132-RJ, confers to homoaffective partners the same juridical effects regarding stable union as to those of different gender. In search for this recongnition, the action invoked the interpretation "according to the Constitution", where it sought to show that in a sistematic vision the desired right had support. The Court gave providence based on the contextual hermeneutics, which had sustaining in a series of constitutional principles, especially in those of a person's dignity, equality and freedom. The founding value, however, which is the human, yet it is set in the wide network of discursive reasoning, appears more in a tacit manner, when the opposite was expected: that the human aspect fixed in the center and base of this argumentation. For example, it is even said that homosexuality is not an illness, nor a deviance nor an option, but a sexual orientation. And if it was it all at once, for being ill wouldn't he have a shelter, or for it being an option wouldn't he have freedom of choice? This proposal is to see a new reading of this decision, starting in the election of some excerpts of the speech (due to smallness of space), displaying, in a dialectic and deductive perspective, that in light of the human rights, the minorities, i.e. the homosexuals, can receive the analysis of their pleas from a safer filter [ABSTRACT FROM AUTHOR]

This essay explores the similarities between the rhetoric put forth by select fundamentalist Christians in reaction to the Supreme Court case Brown vs. Board of Education and Lawrence vs. Texas. A race, class and gender analysis is applied to primary and secondary sources in order to compare statements made by three groups of white fundamentalist Christians, each of whom were responding either directly and / or indirectly, to one of these two Supreme Court's decisions. The three groups of white fundamentalist Christians are: 1. State and federal judges, 2. Church leaders, and 3. White activist mothers / women. The overall goal in is to show the similarities in these white fundamentalist Christians' reactionary discourses in terms of the theme of sexual contamination, in particular in relation to white children. This comparison shows how for many fundamentalist Christians, fears of interracial sex / marriage and same-sex sexuality / marriage have been and are still eschatological. [ABSTRACT FROM AUTHOR]

In Morrison v. National Australia Bank, Ltd., the Supreme Court reaffirmed the principle that, when addressing issues of extraterritoriality, courts are to presume that Congress only writes laws for domestic application. This Note examines the Alien Tort Statute, a statute that courts have been applying extraterritorially since 1789 This Note addresses what effect, if any, the Morrison decision will have on Alien Tort Statute litigation and argues that the context in which the First Congress enacted the Alien Tort Statute provides enough evidence to overcome the presumption against extraterritorial application. Therefore, Morrison will likely have little, if any, effect on the future of alien Tort Statute litigation. [ABSTRACT FROM AUTHOR]

Copyright of Derecho Penal y Criminologia is the property of Universidad Externado de Colombia, Departamento de Derecho Penal y Criminologia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

By leaving the meaning of a statute-or procedural rule-undecided, ambiguous appellate decisions create space for lower courts to adopt a blend of conflicting approaches, yielding an average result that trims between competing preferences. While compromising in this way may seem to flout basic norms of good judging, this Article shows that opaque "compromise" opinions have plausible normative appeal, given premises about good interpretation often labeled "pluralist." Judicial pluralists think courts should decide cases in ways interest groups would, hypothetically, accept. To demonstrate the pluralist appeal of opaque decisions, I develop, in turn, two related claims: First, interest groups, under the right conditions, would prefer that courts interpret ambiguous statutes (or procedures) in a way that compromises between contending interests, giving each side some of what it wants. Second, sometimes, interest groups would also prefer ambiguous appellate interpretations-creating space for a blend of conflicting lower court approaches-when that is the only form compromise can take. When both are true, opaque decisions have powerful pluralist appeal. Appreciating the pluralist appeal of opaque decisions, in turn, pays off by providing the missing normative foundation for some of the Supreme Court's most confounding, inscrutable, and reviled procedural decisions: the Celotex trilogy, Bell Atlantic v. Twombly, and Ashcroft v. Iqbal. [ABSTRACT FROM AUTHOR]

The article focuses on the Eighth Amendment challenges to noncapital sentence with reference to court case Graham v. Florida. It states that the Florida state prisoner have asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment. It mentions that the Court had enforced the Cruel and Unusual Punishments Clause, which prohibited the imposition of the death sentence for certain crimes and certain classes of offenders.

The German constitution declares in its fi rst Amendment that human dignity is inviolable and declares its protection as a duty of the state. The following text explores the concept of human dignity as "a right to have rights" that can be derived from this constitutional passage. References to different decisions of the German Federal Constitutional Court reveal the importance and complexity of this concept and its meaning for the understanding and interpretation of the German Constitution as such. [ABSTRACT FROM AUTHOR]

Most of the empirical work on the decision making of justices on the Supreme Court of Canada has taken as its exclusive focus the divided decisions of the Court. In contrast to this extensive body of research on divided decision, the much more limited knowledge of unanimous decisions is troubling because such decisions constitute nearly three-quarters of all of the formal decisions of the Court. The analysis reported below provides a first step towards understanding the neglected nature of unanimous decisions. This investigation of the nature and causes of unanimity in the Supreme Court of Canada explores two competing explanations: one drawn from the most widely accepted general explanation of judicial voting (that is, the attitudinal model) and the other from the perspectives of the justices themselves. To determine that perspective, the author interviewed ten of the current or recent justices on the Court. After describing these two alternative accounts of unanimity, empirical tests are conducted of the implications of each view. We find substantially more support for the perspectives of the justices than for the perspective derived from the attitudinal model on unanimity. [ABSTRACT FROM AUTHOR]

Copyright of Revista Chilena de Derecho is the property of Revista Chilena de Derecho and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Adam Smith's views on collusion were injected into the Supreme Court's ruling in Bell Atlantic v. Twombly as Justice Stevens puzzled over why a collusive action might be viewed as "right." Motivation by a desire for approbation provides Smith's explanation for the existence of well-functioning groups. "Right" action is approved by the group. The question is what happens when the groups are in conflict. For Smith, collusion is one instance of the larger problem of faction in which a small group organizes to exploit the larger society. [ABSTRACT FROM AUTHOR]

The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, "is also a person of ordinary creativity, not an automaton." This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, as well as an all-but-forgotten nonobviousness bill that died in committee in 1948, the author shows that the modern "level of skill" inquiry can comfortably rely on evidence of long-felt, unmet need in the art and the failure of others to meet that need. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's decision in the Cunningham v. California case. The Cunningham Court held that the Determinate Sentencing Law (DSL) of California violated the Fourteenth Amendment due process rights of the defendants. It states that the invalidation of California's DSL by the Court was correct because each defendant's sentence should fall within the appropriate range defined by the legislature.

Over the last decade the scholarship on judicial politics has increasingly emphasized the strategic aspects of decision making in the United States Supreme Court. This scholarship, however, has struggled with two significant limitations-the restriction to unidimensional policy spaces and the assumption of binary comparisons of alternatives. These two assumptions have the advantage of implying stable, predictable outcomes, but lack a sound theoretical foundation and assume away potentially important aspects of strategic behavior on the Court. In this article, we identify institutional features of the Court that, under certain conditions, allow us to relax these two assumptions without sacrificing stable, predictable policy outcomes. In particular, we formalize the "part-by-part" opinion voting used by the justices, a feature that, together with separable preferences over policy issues, implies stable policy outcomes around the issue-by-issue median of the justices. [ABSTRACT FROM AUTHOR]

The article provides information on the regulation of abortion after the Gonzales v. Carhart case in the U.S. The author states that, in Gonzales v. Carhart case, the United States Supreme Court carried on the constitutionality of the Partial-Birth Abortion Ban Act of 2003, a federal statute criminalizing a medical procedure known informally as partial-birth abortion, also referred to as intact dilation and extraction ('D&X') by physicians. Furthermore, the decision is the first to maintain a ban on a specific abortion procedure and it also represents the first time that the Court has approved an abortion restriction that fails to provide an exception for the health of the pregnant woman.

The article explores one cluster of issues that Paul Mishkin's scholarship exposes as one thinks about the nature of U.S. Supreme Court decision making. It is stated that the obligation of the Court to endeavor to satisfy the demands and constraints of proper legal reasoning and analysis occupies a place of central importance in his writing and teaching. The author notes that Mishkin has insisted upon highlighting the external demands placed on the distinctive political institution that is the Supreme Court, while never losing sight of the demand of principled decision making.

The article discusses the U.S. Supreme Court decision of Linkletter v. Walker and Paul Mishkin's critique on the said decision. According to the author, Mishkin described the decision as basically unwise. It then looks at the Court's struggle with Linkletter's legacy, trying to provide some insight as to how the deficiencies of the current approach derive from Linkletter and could be amended by a fuller acceptance of Mishkin's views. Specific thoughts on the retroactivity problem currently before the Court are offered.

The article talks about the Wisconsin Supreme Court. The decisions of the court in every case are diverse, compelling, and very significant to the people of the state. The justices and Chief Justice are committed to the work of the court and the quality of justice being delivered in Wisconsin's courtrooms. Moreover, the court's 2004-2005 term was discussed.

The process of evidentiary rulemaking for the federal courts is, by design, slow and painstaking. Rulemaking is more deliberate in its pace than the process used by the Supreme Court to generate case law. Occasionally this can mean that a Supreme Court opinion can subvert rulemaking that the Court, somewhat ironically, is responsible for under the terms of the Enabling Act. This Essay's author-the Reporter to the Judicial Conference Advisory Committee on Evidence Rules-considers a recent example of Supreme Court decisionmaking that trumped rulemaking: the Court's decision in Craw-ford v. Washington, which brought to a halt the Advisory Committee's attempt to amend Rule 804 (b) (3), the hearsay exception governing admissibility of accomplice confessions and other declarations against penal interest. The amendment to the Rule was designed to bring the hearsay exception into compliance with the then-constitutional limitations imposed by the Confrontation Clause; the Crawford Court derailed three years of work on the amendment by substantially revising its interpretation of that Clause. But Professor Capra concludes that the roadblock imposed by Crawford is only temporary, and that there is still a need for an amendment to Rule 804(b) (3). Even after Crawford, the amendment is needed to bring the rule into compliance with the Confrontation Clause, and, more broadly, to provide a fair application of the hearsay rules, a responsibility that the Court in Crawford left in the hands of the rulemakers. [ABSTRACT FROM AUTHOR]

The article presents information about recent developments under the Religious Land Use and Institutionalized Persons Act of the United States. The Act became law on September 22, 2000. The Act was the U.S. Congress' response to the Supreme Court's decision in City of Boerne v. Flores. In this case the Court ruled that the Congress, in enacting the Religious Freedom Restoration Act exceeded its enforcement power under section five of the Fourteenth Amendment by contradicting vital principles necessary to maintain separation of powers and the federal-state balance. The decision involved an employment compensation dispute involving two native American employees of a private drug and alcohol rehabilitation facility in Oregon. The Supreme Court upheld the law and declared that it had never held that an individual's religious beliefs excused him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. The Court further explained that the "Free Exercise Clause" provides no protection against a valid and neutral law of general applicability on the ground that the law proscribes.

While recent Supreme Court decisions in Booker and Blackwell have shaken the foundations of the federal sentencing guidelines system, careful analysis of the guidelines remains important. This Essay contends the federal guidelines have failed due to structural flaws that cannot be mended without fundamental reform. The failures of the guidelines can be traced to the breakdown of the institutional balance the Sentencing Reform Act was supposed to create. Power has consolidated in the hands of prosecutors at the case level and an alliance of the Department of fustic with Congress at the policy level. The inordinately complex sentencing table has given Congress and the Justice Department a vehicle for constant intervention into the process of making sentencing rules. Because of the lack of budgetary constraints, this intervention has caused a one-way upward ratchet, in which sentences are raised easily and often and lowered only rarely and with difficulty. Likewise, the complexity and rigidity of the guidelines have severely constrained judicial sentencing discretion while conferring on prosecutors a vastly increased ability to influence a defendant `s sentence. At the case level, there is an increasing disconnect between the sentences the rules ostensibly require and the sentences actually imposed as the front-line sentencing actors employ ever more mechanisms for evading the rules. All these problems are integral to the existing guidelines system and would not be materially alleviated by a post-Booker system of "advisory" guidelines. [ABSTRACT FROM AUTHOR]

Although the residues of official segregation are widespread, affirmative action continues to meet resistance in both official and everyday life, even in such recent Supreme Court decisions as Grutter v Bollinger (539 U.S. 306). This is due in part to a governing ontology that draws the line between individual and collective. But there are other possibilities for conceiving the social, and I offer one here in a theory of affirmative action that is developed through close examination of sharing and promising as elemental qualities of equitable communal life. The nature and value of these actions are demonstrated in narrative formulations of fairness as exemplified in triage and the situation at the end of slavery; of the difference between equality and equity and how justice depends on their conjunction; and finally of theorizing how these may come together in the permutable, opaque, yet resilient interdependence of person and community that represents most deeply the Greek idea of two in one, that is, of one two, not two ones. In these respects the paper is successful insofar as it discloses the kinds of reasoning that underlie both resistance and commitment to affirmative action. [ABSTRACT FROM AUTHOR]

The article focuses on judicial conditions on the congressional enforcement power. In the case Tennessee v. Lane, the Supreme Court considered whether the U.S. Congress had exceeded its constitutional authority in Title II of the Americans with Disabilities Act (ADA) by requiring states to provide accessible courthouses for disabled people like George Lane. The result in Lane was received as "unexpected," standing out from recent decisions in which the Court had dramatically constrained Congress's Section 5 power.

Presents statistics of supreme court decisions in the U.S., as of November 2004. Actions of individual justices; Voting patterns in non-unanimous cases; Final disposition of cases.

The article focuses on the dignitary interest as a distinct head of damages. It analyzes recent decisions of the Supreme Court of Canada that have commented on the availability of aggravated damages. It informs that these decisions illustrate a degree of incoherence over the function of aggravated damages and how they should be quantified. It identifies how the protection of dignity lies at the root of awards for aggravated damages. It conceptualizes what is encompassed within the dignitary interest.

on case; Suggestion of a proper interpretation of its holding unless the Discusses the case of Buckhannon Board and Care Home Inc. versus West Virginia Department of Health and Human Resources, where the United States Supreme Court rejected the catalyst theory in the context of the Americans with Disabilities Act. State of the catalyst theory in the lower federal courts; Examination of the statutory fee-shift language which explicitly provides for basis of awarding attorney fees to a plaintiff; Provision of sanctioned relief by the court for a party to be considered prevailing.

This article presents study, which provides empirical evidence to highlight the salience of this decision: results indicate that over half of the reasons cited for a layoff decision about the older worker had nothing to do with performance, and most were based specifically on age and age-related stereotypes. Over 80% of the reasons that specifically cited age produced a negative outcome, for the older worker. The stakes for employers have been raised significantly by a unanimous Supreme Court decision handed down in June 2000 that dramatically changes the way courts must consider evidence in age discrimination cases. The importance of the case, Reeves v. Sanderson Plumbing Products Inc., lies in the newly articulated evidentiary standard that the Supreme Court placed on businesses to produce a legitimate, non-biased reason for termination of an older worker that the jury finds to be credible.

Addresses the role of statistical data in discrimination cases. Analysis of the California Supreme Court's interpretation of the scope of its Constitution's Section 31 in its Hi-Voltage decision; Background of the conflicting California Court of Appeal decisions on the issue of statistical recordkeeping for public contracting jobs; Discussion on ways in which statistics can help litigants prove intent in public contracting discrimination cases as well as laws and inadequacies in statistical reports.

The article examines the validity of the United States bounded rationality theory of judicial decision-making in the Canadian Supreme Court. Since the mid-1980s, scholars have contended that judicial decision making on the U.S. Supreme Court in search and seizure cases is influenced by factual scenarios as well as attitudinal variables. This research has demonstrated that U.S. justices rely on shorthand cues from the factual circumstances in the cases to help them reach their decisions. When these factual variables are subsequently coupled with attitudinal variables, these scholars have been able to accurately predict a significant proportion of search and seizure votes by justices on the U.S. Supreme Court. Given the importance of these findings, it is surprising that scholars have not tested the relevance of the factual model to other high courts in advanced democracies. The article attempts to apply the search and seizure factual model to cases decided by the Canadian Supreme Court, and assess the validity of the model in a different cultural context.

Presents notes relating to law compiled as of March 1896. Announcement of the death of Charles Doe, Chief Justice of the Supreme Court of New Hampshire; Importance of the opinion of the House of Lords in the case "Angus v. Dalton"; Applications of the doctrine of respondent superior.

Focuses on the U.S. Supreme Court case Socony-Vacuum Oil Co. versus Smith in the U.S. in 1939. Applications of the Jones Act to the case; Charges filed by the plaintiff; Ruling issued by the court on the case.

This article presents information regarding judicial decisions on criminal law and procedure. It describes the case People v. St. Maurice. Defendant was convicted of a crime and sentenced to pay a fine or in default thereof to be imprisoned. The judgment was affirmed by the court of appeal, and from this affirmance she appealed to the Supreme Court. While this last appeal was pending she died. The statutes provide that execution may be issued on a judgment imposing a fine, as on a judgment in a civil action and that such judgment constitutes a lien. Regarding the case People v. Schultz, it says that error in permitting a physician to testify that, according to the history of the case and to his findings, he thought it was a case of rape was prejudicial, where the court refused to permit another physician who had examined prosecutrix to state whether rape had been committed, and the prosecuting attorney in argument quoted as a proven fact the witness' opinion that prosecutrix's inflamed condition was caused by rape.

The article presents some Police Science legal abstracts and notes. An objection was raised by the defendant in the recent case of People vs. Jersky, 36 N. E. (2d) 347 (1941) to the testimony of an expert as to the distance from the deceased at which a revolver had been fired. The defendant pleaded self-defense, contending that the gun was fired at close range as he and the deceased were wrestling for its possession. In upholding the trial court's conviction the Illinois Supreme Court held that the expert's opinion pertained only to an evidentiary fact and not to an ultimate fact and that therefore his opinion could not be considered as an invasion of the jury's province. In the recent case of Apodoca vs. State, 146 S. W. (2d) 381 (Texas, 1940), the Texas Court of Criminal Appeals held that it was in violation of the constitutional privilege against self-incrimination to compel a motorist (under arrest for killing a pedestrian) to submit to various tests for alcoholic intoxication. Since no other state has so strict a statute or so consistently conservative decisions upon the general subject of criminal confessions, this recent decision loses some of its significance in so far as other jurisdictions are concerned.