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The prospects for Artificial Intelligence (AI) to impact the development of Delaware corporate law are at once over- and under-stated. As a general matter, claims to the effect that AI systems might ultimately displace human directors not only exaggerate the foreseeable technological potential of these systems, but also tend to ignore doctrinal and institutional impediments intrinsic to Delaware's competitive model – notably, heavy reliance on nuanced and context-specific applications of the fiduciary duty of loyalty by a true court of equity. At the same time, however, there are specific applications of AI systems that might not merely be accommodated by Delaware corporate law, but perhaps eventually required. Such an outcome would appear most plausible in the oversight context, where fiduciary loyalty has been interpreted to require good faith effort to adopt a reasonable compliance monitoring system, an approach driven by an implicit cost-benefit analysis that could lean decisively in favor of AI-based approaches in the foreseeable future. This article discusses the prospects for AI to impact Delaware corporate law in both general and specific respects and evaluates their significance. Section II describes the current state of the technology and argues that AI systems are unlikely to develop to the point that they could displace the full range of functions performed by human boards in the foreseeable future. Section III, then, argues that even if the technology were to achieve more impressive results in the near-term than I anticipate, acceptance of non-human directors would likely be blunted by doctrinal and institutional structures that place equity at the very heart of Delaware corporate law. Section IV, however, suggests that there are nevertheless discrete areas within Delaware corporate law where reliance by human directors upon AI systems for assistance in board decision-making might not merely be accommodated, but eventually required. This appears particularly plausible in the oversight context, where fiduciary loyalty has become intrinsically linked with adoption of compliance monitoring systems that are themselves increasingly likely to incorporate AI technologies. Section V briefly concludes.

An injunction is an equitable remedy with a long history in the courts of equity. The injunctive power historically and necessarily includes the attendant power for a court also to order restitutionary disgorgement of a defendant’s ill-gotten gains, among other forms of equitable monetary relief. That has been a long-standing and steadfast rule in equity jurisprudence for nearly two hundred years. It has also been a consistent holding in this Court’s cases. And this Court has required statutes to be clear and unambiguous in disclaiming traditional equity powers. The FTC Act does not do so. Amici are 43 professors and scholars of remedies, restitution, antitrust, and intellectual property law throughout the United States. Amici include editors of major casebooks and books on Remedies, Antitrust, and Intellectual Property, and one of the amici is the new editor of the leading treatise on Remedies. Many of the amici also have served as Advisers and Members of the Consultative Group to the Restatement (Third) of Restitution and Unjust Enrichment (Am. Law Inst. 2011). Two are the Reporters, and several serve as Advisers, for the Restatement (Third) of Torts: Remedies (in progress). One is President Emeritus of the American Law Institute. All amici have taught at major law schools and regularly publish articles in the areas of remedies, restitution, antitrust, and intellectual property. Amici seek to clarify the history and source of power for equitable remedies incident to injunctions such as disgorgement of a wrongdoer’s profits.

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article is the first to acknowledge the pervasiveness of equitable remedies in the criminal system, and to advocate for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution.

Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law and courts of equity of similar rules concerning relief from penalties. Under Simpson’s account, the penalty doctrine has become a model of the fusion of law and equity dating to the life of equity’s ‘father’, Lord Nottingham. On that account, after transacting parties began using them in the fourteenth century, English law condoned the use of penalties in voluntary transactions for upwards of one century. Slowly the Court of Chancery found situations in which it would be inequitable to condone the penalty: at first because of special circumstances, later simply because the penalty was a penalty. The common law soon followed, inverting the maxim aequitas sequitur legem. By the last quarter of the seventeenth century, the common law courts routinely relieved against penalties, and by the turn of the nineteenth century had taken over the bulk of such litigation. The penalty doctrine became a common law doctrine solely or nearly so. Half a century after its publication, Simpson’s thesis requires examination. This paper suggests that Simpson’s account and the current understanding that flows therefrom are false. On the basis of a fuller examination of printed and unprinted reports and manuscript sources of the Court of King’s Bench and Court of Chancery than previously made, this paper redraws the account of the development of the penalty doctrine. The evidence shows that: penalties were routinely enforced in common law courts until the end of the eighteenth century; all “common law” relief in the royal courts depended on statutes under which the judges applied equitable principles borrowed from the Court of Chancery; reliance on statutory power to grant relief at common law continued after 1875 in “Judicature Act courts”; but the repeal of those statutes means that the only source of principle for relief from penalties in England today are principles of equity. Simpson’s suggestion that the penalty doctrine is a product of “fusion” is mistaken: in the modern period, there has been no judge-made common law of relief from penalties with which the equitable doctrine could fuse. As Parliament has directed that those equitable principles shall continue to apply, fusion is a distraction from the application and development of the (equitable) penalty doctrine.

One of the long-standing maxims of equity is that “he who comes into equity must come with clean hands.” It is closely related to the maxim that “he who seeks equity must do equity.” These equitable principles are “an historical reflection of the fact that courts of equity began as courts of conscience.” In this country and throughout the common law world, unclean hands has tradition- ally been a defense to equitable claims, but not to legal claims. Yet in the case below the Federal Circuit applied the equitable defense of unclean hands to a legal claim for damages for patent infringement. The Federal Circuit repeatedly relied on precedents of this Court that characterize unclean hands as an equitable defense that constrains a court of equity. The Federal Circuit provided no support whatsoever for applying the equitable defense of unclean hands to a legal claim for damages, especially when that equitable defense would displace the verdict of a jury.

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a bias toward federal power is hard-wired into the modern judicial appointment process. Once on the bench, Justices see an increasingly elite bar of Washington D.C. specialists steeped in federal practice, even when hearing cases concerning state sovereignty. These are problems for the Court, despite its likely sympathy for federalism arguments in years to come. This article suggests one solution: help the Court hear the states. Relatively minor reforms to the Court’s approach in cases impacting state sovereignty could harness the politics of state attorneys general to help the Court hear all states more clearly, facilitate a more principled federalism, and depoliticize the Court itself. States cannot help protect the Court from politicization, however, if their attorneys general fall victim to the same national polarizing forces that threaten the Court. Any reforms to help the Court hear the states better, therefore, must also help the states keep their voices strong and independent.

Ever since Justice Scalia passed away last February, the Supreme Court has been composed of eight Justices equally divided among Republicans and Democrats. This paper argues that Congress should permanently set the number of Justices at eight and require that at all times there are four Republicans and four Democrats on the Court. A permanent, evenly-divided Court will work harder to reach narrower decisions in its hardest cases and will be less able to impose its ideological agendas on the American people while at the same still have the tools necessary to maintain the supremacy and uniformity of federal law. To the extent the Justices do deadlock on a case, the issues will be resolved by court of appeals judges who are much more politically, educationally, and geographically diverse than the Justices.This proposal to limit the Court's power, unlike abolishing term limits or requiring a super-majority of Justices to strike down laws, does not require a constitutional amendment (the original number of Justices was six). Although the President could nominate any person he desires, even if it disrupts the Court's balance, the Senate could refuse to confirm any nominee who would lead to one of the political parties having a majority of Justices on the Court. This paper spells out the details of this proposal and explains both how it could be easily implemented and why it benefits both political parties, the Congress, the President, and the American people.Preexisting intellectual commitments or interpretative theories have not and cannot limit the Court's power. It is well past time to experiment with structural changes that will make it more difficult for the Justices to strike down state and federal laws based on ideological disagreement instead of a demonstration of clear inconsistency with the Constitution.

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law's text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.

This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the Hague Convention and should not be perceived as obstacles to its adoption.

The decision of the California Supreme Court in Bristol-Myers Squibb Co. v. Superior Court, 1 Cal.5th 783 (2016), is fully consistent with the due process standards recognized by this Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945), as well as with recent doctrinal developments applying and elaborating those standards. The state high court’s substantial connection standard bridges the jurisdictional lacuna between specific and general jurisdiction and operates in a manner that is fully consistent with the federal common law doctrine of pendent personal jurisdiction. We, therefore, urge this Court to affirm the decision of the California Supreme Court.

The Chief Justice of the United States Supreme Court authors many of the most important opinions coming out of the Court. The prestige of authoring an important policy decision, and the value that such an opinion adds to the legacy of the Chief Justice’s Court, plays an important and strategic role in the Court’s opinion authorship dynamics and the policy outcomes of the Court. We present a Supreme Court decision-making model that, within the confines of legal doctrine, incorporates the authorship utility of the Chief Justice (and senior associate justices who hold secondary, yet important, property rights over authorship). New predictions emerge about who authors the Court’s opinion, what case outcome is chosen by the justices, which legal doctrines are chosen, and which decisions are unanimous among the justices. We illustrate aspects of the model with recent Supreme Court decisions involving health care and campaign financing.

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.

Shakespeare’s Venice is the prototype of a global city: open to trade and business, it attracts a great flux of money and people. Its laws have to facilitate trade and provide incentives for business interactions. They also have to punish swiftly those who do not respect business contracts to maintain an impeccable image of a trade-based city state. Shakespeare uses this image of Venice to highlight a series of conflicts arising in the rest of Europe and in particular in England. Europe is moving from a class-based Aristocratic society to a trade-based bourgeois society, this creates a great number of uncertainties. Moreover, law is administered by a chaotic number of jurisdictions (in England, common law courts are working side by side with equity courts and ecclesiastical courts), which also increases legal uncertainty as to whom exercises justice and according to which procedures. Last but not least, Europe is plagued by religious conflicts between Catholics and Protestants as well as between Christians and non-Christians. Shylock embodies the threat at the legal, social, economic, and religious level. The Merchant of Venice has never been as topical for our contemporary societies where law, religion, economics and politics are undergoing deep transformations and uncertainty reigns sovereign.

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.

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.

Effect-based analysis is genuinely implicit in economic reasoning. The jurisprudence developed throughout the debt crisis reveals frequent recourse to effect-based analysis for the legal assessment of the compatibility of anti-crisis instruments with EU law. The dividing line between the European Court of Justice (ECJ) (in Gauweiler and Pringle) and the German Constitutional Court (in its request for a preliminary ruling on the OMT programme) can be drawn according to whether spillover effects for the purpose of delineating monetary from fiscal policy are recognised or not. This difference inspires the diverging answers the courts give on whether the ECB acted within its mandate. This article examines the scope and nature of the Court’s effects orientation and seeks to analyse the underlying economic rationale guiding the Court’s interpretation of the relevant EU Treaty norms – this analysis led the ECJ to results that conflicted with the analysis of the German Constitutional Court. The different (economic) understandings adopted by the courts are also explored in light of the functionality of interest rates in relation to monetary and fiscal policy.

Much of what we think we know about the judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s commentaries on the laws of England shaped many an antebellum lawyer’s notion of legal practice and jurists in the twentieth century quite deliberately pointed to the courts at Westminster in discussing the origins of judicial power in America.An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases both in law and equity and early developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While the Scots imposed standing limits in private litigation – or what the courts referred to as title and interest to sue – they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press a legal claim held in common with other members of the public. By offering an account of Scots practice, this paper illuminates a remarkably mature but long ignored body of standing law, draws upon Scottish ideas to interrogate the rules of standing in the United States, and extends the growing literature on influential alternatives to the common law.

The Supreme Court of Canada has for several decades used an anonymous and unanimous decision format – ‘By the Court’ – for a subset of its constitutional decisions; although some of the specific cases (such as the Quebec Secession Reference) have been closely examined, the practice itself has never received focused consideration. This article establishes a chronology, an inventory, and a typology for the Supreme Court’s ‘By the Court’ judgments, and concludes by suggesting that it use has become more frequent under the current Chief Justice.

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?

The Supreme Court’s main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court’s disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties' merits filings, amicus briefs, and from lower court opinions between the 2005 and 2014 Terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties' briefs and filings, amicus curiae briefs, and lower court opinions on the Court's majority opinion language. This article provides both macro and micro level analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual Justice. In the aggregate this article finds that of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower court’s opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.

Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys' relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.

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.

In 2014, the Ninth Circuit created a federal circuit split over the use of tribal court convictions in federal prosecutions that the Supreme Court will soon resolve. In United States v. Bryant, the Ninth Circuit held that tribal court convictions cannot be used as predicate offenses in subsequent federal prosecutions unless the tribal court guarantees a right to counsel commensurate with the Sixth Amendment right. The Court accordingly dismissed a federal domestic assault charge under 18 U.S.C. § 117(a) because the predicate offense upon which the prosecution relied would have violated the Sixth Amendment right to counsel had the case arisen in federal or state court. The Court rooted its decision in the principle commonly espoused in criminal procedure jurisprudence that uncounseled convictions are unreliable. Extending this reliability principle to tribal proceedings is, perhaps predictably, problematic since indigent defendants are rarely guaranteed the right to appointed counsel, and the Constitution itself is without force in tribal courts. The Eighth and Tenth Circuits have thus upheld the use of uncounseled tribal court convictions on comity grounds. This Note analyzes the Eighth, Ninth, and Tenth Circuit cases to highlight the unique disadvantage indigent Indian defendants with prior uncounseled tribal court convictions confront when prosecuted under § 117(a). With an eye toward the Supreme Court, this Note proposes an alternative interpretation of the statute that avoids the constitutional quandary created by the Eighth and Tenth Circuits' holdings. This Note concludes by urging the Court to seize the opportunity United States v. Bryant presents to reassess Congress' immense plenary power under the Indian Commerce Clause.

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.

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.

During the sixteenth and early seventeenth centuries, the English Court of Requests played a substantial role within the sphere of the parallel and competing jurisdictions of the Westminster courts. It served as a jack-of-all-trades court, a court of last resort, and a quasi-appellate forum in which a certain subset of litigants could have their cases heard or reheard in what they apparently considered to be a more favorable venue. Admiralty disputes made up a small but not insignificant part of the Court’s docket from the beginning. This chapter details the types of admiralty disputes heard in Requests and the various ways litigants used the Court.

This article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice of a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.

The process by which the United States Supreme Court decides cases, and the reasoning underlying its decisions, matter more than the outcomes it reaches. Indeed, when the desirability of an outcome motivates the Court’s decisions – as it has in some cases – democracy is weakened, separation of powers principles are undermined, and the relationship between citizens and their government flows from the top down, not the bottom up. In short, an outcome-based jurisprudence harms citizens of all political persuasions – except the wealthiest- and undermines principles of equality, liberty, and self-determination. For this and other reasons, the judiciary, particularly the Supreme Court, should embrace an interpretive framework that promotes equal participation in the democratic process, fosters accountability, and facilitates robust democratic discourse among citizens of all backgrounds. Currently, the Court’s jurisprudence, although commendable in many respects, is failing in this regard. Overturned proposes a solution that strives to restore integrity to the Court’s decision-making process by eschewing ideology and a focus on the utility of outcomes in favor of a jurisprudence that gives all citizens a meaningful voice in governance.

The court is an indispensable institution in the administration of the justice system in all jurisdiction; municipal and international. Generally, court structure is hierarchical. Nigeria a common law country and France a civil law country both have the hierarchical court structure. The International criminal court, perhaps because it does not administer municipal laws, does not operate the hierarchical structure.This paper embarks on the voyage of discovery of the appropriateness or otherwise of the court structures in Nigeria, France and the International Criminal Court.The concluding part of this disquisition will provide the recipe for strengthening the structures to make for a more effective administration of the justice system.

This paper examines the 17 tax cases decided by the New Zealand Supreme Court in the period from 2004 (when the Court was established) until 2014.

What should the Supreme Court do with a tie vote? A long-standing rule provides that when the justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia raises the specter that the Supreme Court October Term 2015 could be replete with such results, and the cases at risk of ending in ties include high-profile and contentious cases about unions, voting rights, immigration policy, and Obamacare. This Article constitutes the first detailed empirical analysis of whether the Supreme Court’s current approach to tie votes makes sense, presenting an original study of the 164 instances in which a tie vote occurred between 1925 and 2015. Those data reveal two important trends, both of which suggest the current approach is at best unnecessary. First, where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance. Second, only 1 of the 164 cases would today fall within the Supreme Court’s limited mandatory jurisdiction. The remainder would arrive at the Court on a writ of certiorari, a docket that is entirely discretionary.Instead of affirming by equal division, the Supreme Court should utilize an alternate and equally well-established procedure to dismiss cases as improvidently granted. At a time when Americans disapprove of the Supreme Court at unprecedented levels, dismissing rather than formally announcing a tie to terminate deadlocked cases better protects the public perception of the Court’s legitimacy. Moreover, dismissal would reduce the potential for justices to write opinions that take public positions on issues that have not yet been resolved. Finally, as a matter of cognitive psychology, justices may feel internal pressure to remain consistent with a position once staked out in a vote that resolves a case. Dismissing, rather than affirming by an equally divided court, could alleviate that psychological pressures, allowing the justices to be more fair-minded when approaching cases in the future.

For decades, scholars have routinely attacked the Supreme Court’s Fourth Amendment jurisprudence as an incoherent mess, impossible for lower courts to follow. These scholars have based their claims almost entirely on qualitative analysis of the Court’s opinions. This article presents the first systematic evaluation of the consensus view of Fourth Amendment law as incoherent. The primary method I use to evaluate the coherence of the body of law is an assessment of lower court performance on Fourth Amendment issues the Supreme Court would later resolve. Because the Supreme Court’s agreement with lower courts likely reflects, at least in part, the clarity of the Supreme Court’s previous pronouncements, a high rate of agreement between lower courts and the Supreme Court would tend to suggest the coherence of the field. I examine lower court decisions dealing with issues the Supreme Court subsequently addressed over the course of twenty Supreme Court terms. Because Supreme Court cases tend to deal with the most difficult, divisive issues, I also compare the frequency with which the Court has felt compelled to review Fourth Amendment questions to the rate at which the Court has dealt with other important constitutional issues.In addition to tracking the performance of lower courts, I track variables that might impact the likelihood of lower courts reaching “right” answers to Fourth Amendment questions. Because the process the Court uses to resolve a case gives clues about the kind of guidance the Court has previously provided on an issue, I account for whether the Supreme Court used open-ended balancing or a more constrained form of analogical reasoning from precedent to resolve each case in the data set. I also assess whether the directive the Court issued for each case took the form of a bright-line rule or an open-ended standard. Finally, because several scholars have recommended reference to positive law as a means of clarifying Fourth Amendment law, I evaluate the Court’s reliance on positive law to resolve Fourth Amendment questions during the twenty-year period.Ultimately, the results show that lower courts have reached the “right” answers to Fourth Amendment questions about as often as lower courts have reached the “right” answers to all questions the Supreme Court later reviews. Furthermore, the Court has not felt compelled to resolve Fourth Amendment questions at a rate that seems disproportionate to other important constitutional matters. These data point toward the plausible conclusion that Fourth Amendment law is not particularly incoherent, as compared with other areas of law. Examination of the Court’s use of positive law reveals that the Court has, for the most part, not relied on positive law in ways likely to enhance significantly the coherence of Fourth Amendment law. Thus, a more principled approach to using positive law to resolve Fourth Amendment questions might increase the coherence of the field. Finally, analysis of the data suggests the Court should issue directives in the form of bright-line rules instead of open-ended standards if it hopes further to enhance the clarity of Fourth Amendment law.

On the twentieth anniversary of United States v. Lopez (1995), this Article revisits the Rehnquist Court’s federalism revolution. Much of what has been said about the federalism cases of the Rehnquist Court misses a fundamental aspect of those decisions — one with profound implications for making sense not just of the Rehnquist era but a large component of the Supreme Court’s work since the earliest days of the Republic. Focusing particularly on Lopez and the follow-up case of United States v. Morrison (2000), the Article offers a new perspective on what the Rehnquist Court was up to. We set forth a practical reading of Lopez and Morrison as cases about docket control. In both cases, we suggest, the Court was concerned with shielding the federal district courts from ever-expanding criminal and civil cases that resulted from new federal laws. The Article shows that from the Court’s perspective, docket control was not simply about keeping the caseloads of the district courts at a manageable level. Instead, quite apart from numbers, the Court was concerned with the particular types of cases Congress wanted the district courts to handle. Congress, the Justices feared, was undermining the prestige of the federal judiciary by blurring the distinction between state and federal judges and turning federal judges into petty magistrates. Docket control was thus about protecting the integrity of the third branch of government — a mechanism, in other words, that began in federalism but served also separation of powers. While we draw on a variety of sources in presenting our account, the Article relies heavily on a rich and surprisingly underused resource: the annual testimony by Supreme Court Justices before congressional committees in support of the Court’s annual budgetary requests. These hearings document candid comments by the Justices on a range of issues, including a deep concern with Congress’s treatment of the lower federal courts. Indeed, read with the benefit of hindsight, the hearings show the Justices shortly prior to Lopez and Morrison forecasting the outcomes in those cases and articulating an overlooked rationale underlying the decisions.Our account provokes a rethinking of the constitutional justification for Lopez and Morrison (and other federalism decisions of the Rehnquist Court). The two cases, we show, represented the culmination of more than a century of efforts by the Supreme Court to safeguard the role of the judicial branch in our constitutional system. Doctrinally, Lopez and Morrison involved questions of the scope of congressional power and the degree of deference courts owe to Congress when it legislates. By centering on these issues, however, debate over the outcomes in Lopez and Morrison has overlooked a more basic justification for the Court’s rulings. When the Court acts to protect the judiciary — and particularly when it does so after repeated requests to Congress for help — it is on firmer constitutional ground than critics of Lopez and Morrison have recognized. At the time of Lopez and Morrison, the courts were under considerable stress and there was no indication that Congress — continuing to create new federal causes of action — would provide relief. Under those circumstances, the Court’s response, invalidating one criminal statute (in Lopez) and one civil cause of action (in Morrison), was less revolutionary than preservationist. The significance of our account extends beyond explaining a single episode in the history of the Supreme Court. Once cast in terms of docket control, Lopez and Morrison represent not a break — revolutionary or otherwise — but the culmination of a much longer history of over-burdened (and under-appreciated) federal judges pushing back against demands to perform tasks that would distract them from their core functions under the Constitution. Apart from the federalism decisions of the Rehnquist Court, many cases — many landmark cases — are better understood in the new light of docket control. (Yes, we even offer a new reading of Marbury v. Madison.) While at first blush docket control may seem less exciting than other accounts of Supreme Court cases, it helps make sense of a good deal of what the Court does and it provides a new lens through which to examine and assess judicial decision-making.

Nine Indonesia Constitutional Justices have the authority to annul a law drafted by 550 Parliament members and the President. The Constitutional Court of the Republic of Indonesia (“the Court”), particularly in deciding cases of judicial review, has the capability to declare words, sentences, paragraphs, articles or the law unconstitutional. Consequently, it is essential for the Court to take into account legal arguments. The fundamental element of these legal arguments is the constitutional interpretation, which serves as a parameter in determining constitutionality of the laws. However, in exercising its authority, the Court needs to interpret the Constitution as a basis for deciding a case. The standards for determining the constitutionality of a law must be the text of the Constitution, not what the judges would prefer the Constitution to mean. Constitutional supremacy necessarily assumes that a superior rule is what the Constitution says it is, not what the judges prefer it to be. [Craig R. Ducat: E3]. The Court period 2003 – 2008 is in the formative years and is important to understand the methodology and interpretative approaches adopted by the Court. Many observers of the Court’s early decisions are still unsure of the overarching approach and methodology adopted by the Court. Thus, there is a need for a close analysis and criticism of the Court’s early decisions to determine which methods and approaches it has adopted and whether these are appropriate in the Indonesian context. The Court has openly referred to the experiences of foreign jurisdiction in constitutional law and therefore it would be appropriate to analyze the court’s decisions in a broader comparative context of constitutional interpretative approaches from around the world.

This paper looks into the role of the Court of Justice and the juridification of EU law and suggests that using the harmonization of EU immigration and asylum law as a driving force, the Court can be more than a liberal constraint to the sovereign ambitions of the member states and can act as a progressive factor for rights recognition.It is argued, based on the examination of the Court’s jurisprudence and focusing particularly on a series of rulings produced in 2014, that the CJEU might be exploring the limits of rights recognition in the field of migration. The Court’s reasoning, enriches the harmonization process and implies far-reaching present and future effects for migration and asylum policies in Europe.In particular, the Court has ruled that the Schengen Borders Code, the Visa Code and the Students Directive list exhaustive grounds for refusing visa and admission. Thus, the states have no discretion to refuse an applicant based on grounds not listed in the relevant EU instruments. As long as third country nationals fulfill the requirements set therein, they have the right to be admitted and to be issued a visa.The paper analyzes the far reaching consequences of the development of the Court’s case law, as they manifest themselves in questioning sovereign international law prerogatives of states to control immigration, and in the reading of a right to be granted asylum in Article 18 of the EU Charter of Fundamental Rights.

In this paper we examine the decision-making of the Brazilian Supremo Tribunal Federal using a novel dataset of individual-level votes in collegiate decisions issued between 1992 and 2013. In doing so we find limited evidence of greater cohesiveness or lower propensity to dissent among professional judges appointed to the Court than appointees with other legal backgrounds. There are, however, indications of two partisan voting blocs: appointments made by President Fernando Henrique Cardoso and the pre-1985 military government. We also find systematic differences in cohesion across the three jurisdictions of the Court: cases involving abstract review are the most divisive while those based on the Court’s appellate jurisdiction are the least. However, when only the decisions of the plenary court are considered, the appellate jurisdiction is the most divisive. We also find a negative relationship between dissent and caseload, a positive correlation between court size and willingness to dissent and, in contrast to expectations, that greater variation in who appointed the members of the Court was associated with a more cohesive court. With respect to institutional reform, there is evidence to suggest that the introduction of television cameras into the plenary sessions of the Court resulted in a higher level of agreement. However, the effect appears to have been temporary. Contrary to previous findings we find that the introduction of weak forms of precedent via constitutional amendment is not correlated with a decline in overall cohesion on the plenary court. We also find that an increased level of ideological difference in the governing coalition of the federal government is correlated with increased disagreement on the court, a relationship that is supportive of the idea of strategic decision-making on the Court.

Ever since the dastardly attacks of 11 September 2001, terrorism has reached astronomical proportions. No place on earth is safe. In the case of Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed a suspected terrorist’s appeal. The UK Supreme Court held that Minh Quang Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. Pham’s case makes particularly interesting reading against the newly elected Conservative government’s pledge (now postponed) to abolish the Human Rights Act 1998 and replace it with a “British Bill of Rights” which aims to “make our own Supreme Court the ultimate arbiter of human rights matters in the UK.” If anything, those who follow the court’s jurisprudence will know that it is no slave to the Strasbourg system. For example, in this robust judgment, Lord Carnwath adopted an unsympathetic tone in relation to the accused terrorist’s human rights arguments by letting it be known that citing the decision of the European Court of Human Rights in Kuric v Slovenia (2013) 56 EHRR 20 (relied on by the intervener, the Open Society Justice Initiative) threw no light on the issues because it was not concerned with statelessness within the meaning of the Convention relating to the Status of Stateless Persons 1954. Pham appears to have become disillusioned with the western way of life, converted to Islam when he was 21, descended into Islamic extremism and travelled to Yemen (December 2010-July 2011) to train with Al-Qaeda in the Arabian Peninsula. His case is all the more absorbing in light of the fact that the Islamic State of Iraq and al-Sham – also known as Islamic State of Iraq and the Levant or Dawlat al Islamiya fil Iraq wa al Sham – now controls territory twice as large as the UK. Attracted to Abu Bakr al-Baghdadi’s call for Muslims everywhere to “rush” to the so-called Islamic State, droves of British fighters have flocked to Iraq and Syria to indulge in jihad. As Lord Hope of Craighead KT sagaciously explains in his foreward to Fripp et al: “How things have changed. The world has become larger and more volatile.” This paper shares Patrick Cockburn’s denouement that, to cage the monster of jihad, cherry picking countries such as Iraq and Afghanistan and leaving “allies” like Pakistan and Saudi Arabia to their own devices has been a fool’s errand. Strictly speaking, this paper is concerned with Pham’s case in the British courts; especially the Supreme Court’s opinion – affirming the Court of Appeal’s earlier jurisprudence – that the Luxembourg Court lacked jurisdiction to modify the mechanics of the 1981 Act. But the author nonetheless uses this opportunity to delve into the wider developments designed to deal with radicalisation and extremism. The key issue for the Supreme Court was whether the British Nationality Act 1981 prevented the Home Secretary from depriving Pham of British citizenship because making an order of that nature would cause him to become stateless. The answer depended on the 1954 Convention and whether the alleged al-Qaeda trainee was “a person who is not considered as a national by any state under the operation of its law”. (At least 10 million people worldwide continue to suffer the privations and indignity of being denied nationality.) In the Supreme Court, Pham raised a new ground concerning loss of Union citizenship and argued that the deprivation decision was disproportionate and unlawful under EU law. However, the court did not find it necessary to resolve the dispute about EU law. Therefore, in addition to nullifying arguments about slavery to the Strasbourg system, this uncompromising decision also debunks myths about the UK’s subservience to the Court of Justice of the European Union in Luxembourg whose jurisprudence is binding on the Supreme Court unlike the Strasbourg Court’s. Notably, the Supreme Court upheld the Court of Appeal’s reasoning in G1 (Sudan) [2013] QB 1008 that it was wrong to give the Luxembourg Court the jurisdiction to judge any procedural conditions governing, conferring, withholding or revoking citizenship without first knowing whether Parliament (under the European Communities Act 1972 or elsewhere) had relinquished its role to the Luxembourg Court to modify the UK’s laws. The trio of “truly groundbreaking” Luxembourg cases of Rottmann [2010] ECR I-1449, Zambrano [2011] ECR I-1177 and McCarthy [2011] All ER (EC) 729 – credited with representing “a tectonic shift” in the sovereignty of the Member States and “the creation of a real European citizenship” – failed to help Pham in his legal battle and in that regard his case demonstrates the limits of EU law. Legal rationale aside, this paper argues that the Supreme Court’s decision sends an important ethical message to persons who want to first train as terrorists and then later rely on the law for their salvation.

The "complementarity relationship" between the jurisdiction of the International Criminal Court and the jurisdiction of States (to include States not party to the Statute) has been discussed in depth in the aftermath of the adoption of the Rome Statute. By defining its attitude towards domestic jurisdictions, the “complementarity” principle allows the Court, to concentrate on those situations in which there is a pressing need to prevent de iure or de facto impunity, due to the lack of effective investigation or prosecution by domestic jurisdictions, of those individuals responsible of crimes of international concern within to the ratione materiae jurisdiction of the Court. The principle, from a different perspective, represents a safeguard for State sovereignty and domestic jurisdiction which remain, due to the limited judicial resources of the Court, pivotal for the repression of the said crimes. Despite its original rationale the complementarity principle may ultimately have impact on human rights obligations of the Court itself. As an international institution provided with legal personality (Article 4 of the Statute), the Court is bound by any obligation upon it under general rules of international law, and in respect of the most fundamental human rights, also peremptory norms of international law. Discrepancies between the interpretation of such obligations and their reach and interpretation of human rights obligations by treaty based human rights bodies an example of “fragmentation” of international law and a consequence of the existence of different self-contained legal systems. The question if by holding a case to be inadmissible and therefore to be dealt with by the domestic jurisdiction of a State, despite the fact that the domestic proceeding entails violations of human rights, the Court may incur in responsibility, is to be answered based the relationship of the Court’s jurisdiction vis a vis States. This in order to establish what is directly within and what is beyond the powers of the Court. Principles established in respect of State responsibility for extraterritorial violations of human rights may help in shaping the eventual contours of the Court’s responsibility. The Libyan ICC cases are of great interest because they highlight a very narrow interpretation by the Chambers of the meaning of the complementarity principle, and at the same time highlight a reductive interpretation of generally accepted human rights principles in an unconvincing attempt to save the credibility of the Libyan experiment with post-conflict justice and to deny the definitive collapse of Libyan institutions. The shortfalls of the ICC Statute and Rules in matters related to the fundamental rights of the accused in proximity of domestic jurisdiction of States Party are significant, strategic and compromise-oriented in order to gain consent by the widest possible number of States, to include those with a less than immaculate human rights curricula. The decisions of the Chambers in the issue of the admissibility challenges by Libya appear to be even more oriented towards a total absence of scrutiny of domestic practice and human rights records of concerned States, than the arguable drafting history of the Rome Statute. The complementarity of the Court's jurisdiction does not seem a core value in itself to balance against human rights. Unfortunately the Chamber decisions seem to be reflect a “Court marketing” approach aimed at preserving the palatability of the Court itself and that future "selective" self-referrals by States, which should accordingly have nothing to fear in terms of scrutiny in their human rights records for those cases they don’t want to refer the Court.

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of heart later in life and distanced himself from his “segregation now, segregation tomorrow, and segregation forever” speech. Moore has not learned his lesson. But he will soon, when the U.S. Supreme Court rules that same-sex marriage bans violate the Equal Protection Clause. If, as Moore has suggested, he would not follow a ruling by the Supreme Court in favor of same-sex marriage, the Alabama Court of the Judiciary should dismiss him from the bench immediately.Moore’s behavior, not to mention the ruling by the Alabama Supreme Court in Ex Parte State of Alabama ex. rel. Alabama Policy Institute is akin to a bad movie sequel that should have never been made and rightfully bombs at the box office. Technically, the Alabama Supreme Court did not err in disregarding the federal court’s order. The fact that it did so is troubling. Even more troubling are the legal gymnastics that the Court engaged in to achieve what even a casual observer knew would be a decision reaffirming traditional marriage. Ironically, the Court’s decision – and the legal jujitsu it employed – makes the best possible case for same-sex marriage. Among other things, the decision threatens to disrupt the country’s delicate system of cooperative federalism, undermine the rule of law, and tar the judiciary with the taint of arbitrariness.Make no mistake: this case is not about states’ rights. It is about the integrity of the judicial system, which rises and falls on the public’s perception that judges are impartial and objective decision-makers, not self-interested actors who view the law as a vehicle to impose their policy predilections on citizens. This article summarizes the Alabama Supreme Court’s 148-page decision and explains why it was motivated by politics and ideology, not law and justice. The decision represents animus toward same-sex couples and a continuation of Alabama’s long history of drawing arbitrary classifications that enshrine discrimination into the law. For these and other reasons, the Alabama Supreme Court's decision makes the best case in favor of a decision by the U.S. Supreme Court that same-sex marriage bans violate the Equal Protection Clause.

The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role in national politics has attracted a fair amount of academic attention. Contributions to date have emphasised three main explanatory factors: the charismatic leadership provided by the Court’s first Chief Justice, Jimly Asshiddiqie; Indonesia’s fragmented political party system; and the judges’ preparedness boldly to assert the Court’s powers in a way that built its public support. But is the Court still as powerful in its second decade as it was in its first? Two incidents in particular suggest that the Court’s strength may be declining: the attempted legislative curtailment of the Court’s mandate in 2011, and the resignation in 2013 of its third Chief Justice, Ali Mochtar, following his arrest on charges of corruption. While neither of these events has as yet resulted in any permanent change to the Court’s jurisdiction and powers, there is a sense that the Court is in trouble – that its heyday has passed and that it is less influential than it used to be. The purpose of this article is to evaluate this claim. It starts by developing a conceptual framework for assessing the performance of initially forceful constitutional courts. It then moves on to apply this framework to the Indonesian case. Assessed according to its capacity to support the consolidation of Indonesia’s democracy, the article argues, the Court’s power has indeed declined since its forceful start under Jimly. There are some signs, however, that the Court is on the rise again.

During oral argument in King v. Burwell, Solicitor General Donald Verrilli cautioned the Court that striking down the administration's interpretation of the Affordable Care Act's (ACA) subsidy provision would cause immediate harmful consequences – leading to millions losing health insurance coverage. Justice Scalia responded that if the Court's decision would lead to such a calamitous result, Congress could surely react to prevent it. Verrilli responded rhetorically "Well, this Congress, Your Honor?" Verrilli's comments highlight the current state of Congressional gridlock. The 112th and 113th Congresses were two of the most ineffective in history. The current 114th Congress thus far seems similarly unable to reach legislative compromises. The current state of Congressional gridlock raises important policy questions as well as separation of powers concerns. As the exchange between Scalia and Verrilli suggests, Congress's inability to respond to Supreme Court decisions raises the specter that the Supreme Court might decide cases differently than it otherwise would in an effort to avoid incurable consequences resulting from the Court's decision. On the other hand, if the Court ignores Congressional gridlock it may strike down a statute in a fashion that creates draconian results without a potential remedy. These concerns are exacerbated by the fact that the Roberts Court has faced, and will likely continue to face, numerous important challenges to Congressional enactments effecting large numbers of Americans. This essay discusses the Roberts Court in the current age of Congressional gridlock. It examines relevant opinions by the Court and comments by the Justices in an attempt to better understand how the Court views its own role during a time of Congressional inaction.

The Delaware Court of Chancery’s success has made the court a role model for both specialized economic courts in the United States and worldwide. Specialized economic courts are perceived by international organizations such as the World Bank and the OECD as an important element in the creation of a capable and effective judiciary, typically a perquisite for economic growth. In December 2010, Israel's legislature established a specialized division in Tel Aviv District Court to adjudicate corporate and securities law violations. This study is the first to examine the reform’s results and to provide an empirical account of securities civil litigation in Israel since the specialized division’s implementation. We employed a quasi-experimental research design to evaluate whether this structural change in the court affected civil enforcement through class and derivative actions in terms of litigation rates, forum selection, and court performance. In addition, a network analysis method was used to evaluate the new tribunal’s contribution to the formulation of a new body of law in the financial field.By manually curating 242 class and derivative actions adjudicated by both the specialized division and general district courts from 2006 to 2014, we found that although the new tribunal did not lead to the initiation of a greater number of procedures, it did cause a major shift in forum selection and thus became the center of securities litigation in Israel. Moreover, specialization has led to greater efficiency in the Tel Aviv District Court and therefore has made this court equivalent to other district courts even though this court handles the more complex cases that are typical of the economic capital of Israel. More importantly, the new tribunal set numerous precedents that help clarify the legal constraints on actors in the financial market and promote deterrence. Finally, the specialized judges rely on each other’s decisions and, as such, operate as a united bench to develop coherent and consistent case law.We conclude that in the Israeli context, specialization has proven an effective means to empower the judiciary and to promote investor protection. As such, with one foot in the civil procedure realm and the other in the corporate governance realm, this study reveals the connections between specialization, civil enforcement, and the creation of new norms by the judiciary in the financial field.

This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception — and reality — that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through the Court’s reasoned judgment, are afforded the fullest promise of liberty. Nothing is more dangerous to democracy than a court that substitutes reasoned judgment for the rule of law, and contemporary attitudes for constitutional imperatives. Justice Scalia echoed this sentiment when he wrote separately “to call attention to this Court’s threat to American democracy.” In the end, Justice Kennedy decision, like those in Planned Parenthood, Lawrence, and Windsor, show that the “Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

There have been arguments in several quarters as to whether the Code of Conduct Tribunal (CCT) is actually inferior to the Federal High Court (FHC). This paper examines, in succinct detail, the jurisdiction of the CCT vis-a-vis the inherent jurisdiction of the FHC. This paper also proceeds to consider in what instances, if any, the CCT will be bound by an Order of the FHC and whether the CCT is indeed a court of superior record.

US Constitutional law is often perceived to be an exceptional appearance in the landscape of comparative constitutional law. One main difference that is identified is that the US Supreme Court refuses to apply the proportionality test that is a central doctrinal instrument of fundamental rights jurisprudence almost everywhere else. This paper tries to show that this difference is, at least in part, overstated. Even proportionality courts do not exclusively rely on proportionality. This paper analyzes consistency arguments that are common in the case law of several proportionality courts. It examines cases from five different apex courts, arguing that the main function of consistency considerations is the “smoking out” of illicit motives. The paper first shows that the “smoking out” of illicit motives is a frequent element of the strict scrutiny test of the US Supreme Court. It then analyzes the function of consistency arguments in the jurisprudence of proportionality courts. It draws on examples from the UK Supreme Court, the Canadian Supreme Court, the German Federal Constitutional Court, the European Court of Justice, and the South African Constitutional Court. These courts use legislative inconsistency is an indication that the legislature also pursued different aims than the ones which were stated explicitly. In particular, the parliamentary majority may have been captured by interest groups, or it might have had incentives to discriminate against societal minorities.

With marriage equality likely to receive the blessing of United States Supreme Court as a fundamental right in the near future, the Court’s refusal to determine the Constitutional merits of the issue just three years ago in Hollingsworth v. Perry might ordinarily end a minor footnote in history, considered a false start in the overall fight for equality. At the time, it certainly was less celebrated than its companion case, United States v. Windsor. But while the Court’s decision in Windsor had a momentous impact on the rights of the LGBT community, both cases involved justiciability issues that also are likely to reverberate into the future. And of the two, it can be argued that the Court’s decision to dismiss Hollingsworth for the petitioners failing to meet Article III standing requirements is the more critical. The Court’s holding that the petitioners could not represent the State’s sovereign interests in federal court, despite them being authorized to do so under California law, threatens to disrupt fundamental rationales for states adopting a form of direct democracy.

This article, the author's annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2014-2015 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. This article's examination of the 2014-2015 term's employment cases reveals much more than a tally of victories and losses for employers and employees. The author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of changes in the structure of the work relationship itself. The article posits that the conventional wisdom that this term was a friendly one for employees is misleading, as the Roberts Court's signature continues to be written by a determined pro-capital, anti-worker majority bent on deregulating the employment relationship.