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The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions’ policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation’s High Court or to an individual justice influences the public’s agreement with the Court’s rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policy-making operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

This study grew out of my on-the-job blogging. At both the Charleston School of Law and the J. Rueben Clark Law School, I read every opinion from the state and federal appellate courts with jurisdiction over South Carolina and Utah respectively, summarizing the binding authority and posting those summaries online at the Barrister blog and the Binding the Law blog. This has served as excellent current awareness and bar preparation service to the law school communities and a research tool to the legal community generally.

On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

This article investigates the proper ambit of trust jurisdiction clauses. The author proposes that whether a trust-related proceeding is or is not subject to any jurisdiction clause in the trust instrument should be decided according to two key criteria: the proximity of the parties to the proceeding to the drafting of the trust instrument and whether the issues under review in the proceeding are part of the routine running of the trust, an attempt to undermine the trust, or an attack on an officer’s functioning within the trust framework. Other factors to be taken into account are the likely costs of proceedings before the chosen court and elsewhere (including difficulties over security for costs), the extent to which the chosen court offers a realistic prospect of a fair hearing, and the extent to which any court orders granted, whether by the court named in a jurisdiction clause or another court, are likely to be enforceable in practice.

One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.

One of the issues that the current proliferation of international courts and jurisdictions raised in the international legal order is overlapping jurisdiction. On 27 June 2014, the Assembly of the African Union adopted a protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights which extends the jurisdiction of the court to cover international crimes. The decision of the AU to clothe the African court with a criminal jurisdiction has brought, once again, the issue of overlapping jurisdiction to the surface. This article is an attempt to answer the questions: to what extent does the criminal jurisdiction of the African court overlap with the jurisdiction of the ICC, and is the issue of overlapping jurisdiction a common occurrence or an imminent concern? Taking the crimes under the jurisdiction of the courts and the fact that large numbers of African states are state parties to the ICC into consideration, many tend to argue that overlapping jurisdiction is inevitable and is likely to cause friction for the primacy of jurisdiction. However, this article argues that a close scrutiny of the substantive and territorial jurisdiction of the ICC and the African Court suggests that the issue of overlapping jurisdiction is both rare and of remote concern.

In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one patent case per year. The three most recent decisions, Sandoz, TC Heartland, and Impression Products are typical of recent Supreme Court patent jurisprudence in that they all soundly rejected the Court of Appeals of the Federal Circuit’s interpretation of statute and/or Supreme Court precedent, and all of the decisions resulted in a reduction of patent rights for patent owners. In this regard, they are quite representative of a wave of patent decisions by the Supreme Court over the last decade that challenged no signs of abating. In the aggregate, these decisions have led to a marked accretion of patent owner rights, that has weakened the value of issued patents and/or made it more difficult to obtain patents. This Article reviews these decisions, identifying the specific devaluation and its likely impact on biotechnology.

InShergill & Others v. Khaira & Others[2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of theNirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. InShergillthe Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). ButShergillalso went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

In common with most decisions of the Supreme Court, the judgment in R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 tells two stories: a short version and a long version. This article outlines both. The short story is the immediate impact of the decision: the application of the high-bar ‘manifestly without reasonable foundation test’, a distinction drawn on ‘transparent medical need’, and the lack of regard given to international obligations under the UNCRPD and the UNCRC. The long story is how this decision fits into the ‘cut-and-devolve’ approach to welfare reform in the UK, where local authorities are left to mitigate the effects of centrally determined benefit reductions without adequate support. After outlining the basis of the decision and its likely effects, this article argues that the decision does little to square this key structural circle at the heart of the UK government's welfare reform agenda.

In its recent decision in Carter v Canada (Attorney General), the Supreme Court of Canada clarified when it is appropriate for courts to reconsider Supreme Court precedent. Accordingly, the Court concluded that a fundamental shift or change in international legal standards that differs from the approach adopted in the original Supreme Court decision is a ground for reviewing previous decisions. In 1999, the Supreme Court concluded that a maternal tort liability does not exist in Canadian common law. This paper will parse whether Canada’s approach to maternal tort liability still accords with international legal standards or whether it is time that the issue should be reconsidered by the courts.

Very few countries allow corporate donations to political parties and candidates while completely banning donations from trade unions.1 Brazil was one of these countries.2 In September 2015, the Su...

A model of negligence in common law jurisdictions is a conceptual structure that basically seeks to align the three legal concepts used by courts to administer negligence law with the three substantive elements that constitute, justify and limit negligence liability. The three legal concepts are carelessness, legal causation (assuming factual causation) and duty. The three substantive elements are undesirable conduct, a sufficient link between this conduct and harm, and the desirability of liability. Another major task of a model of negligence is to explain the role and meaning of the foreseeability requirement in each concept and element of liability. The traditional model of negligence, identified with the sequence duty-breach-causation, is characterised by the double role that is assigns to the duty concept. This concept is aligned both with the element of undesirable conduct (conduct is undesirable only when breaching a pre-existing duty), and with the element of desirable liability (liability is desirable only where policy considerations justify a finding of a duty to compensate). Being a servant of two masters, the duty concept is the major source of the confusion and ambiguities that have plagued negligence law for generations. Against this background the traditional model was challenged in 2013 in Israel’s Supreme Court by a Justice who embraced an alternative model formerly suggested by the author. The essence of this new model is to align the duty concept only with the element of desirable liability, severing it from the element of undesirable conduct. Such change arguably disperses confusion and ambiguities, and clarifies the roles and meaning of the foreseeability requirement. In 2014, however, another Justice challenged the new model and called for the reinstatement of the traditional model in a different version. This paper explains why the new 2013 model is preferable to the traditional model in all relevant aspects. The analysis sheds new light on the notions of proximity, special relations, reliance, assumption of responsibility and prima-facie duty. The analysis also serves as a comparative perspective on fault-based liability in continental European jurisdictions.

We offer a novel theory on Supreme Court impact that makes several key contributions beyond existing accounts. We argue that policy-oriented justices are particularly attentive to the impact of their precedents within the U.S. Courts of Appeals. We provide a framework in which both Supreme Court and circuit-level influences drive U.S. Courts of Appeals responses to the Supreme Court’s precedents. Principally, we argue that the Supreme Court’s use of its summary decisions, which explicitly reference its formally argued decisions, increase circuit court utility of the High Court’s precedents. We test our predictions using new data on appeals court responses to the Supreme Court’s precedents. The empirical results support our account and shed new light on the hierarchical dynamic within the American federal judiciary.

McGuire et al. (2009) set out to develop a better measure of the policy content of the U.S. Supreme Court's decisions. They justify their measure using a formal model, which they test empirically. ...

The United States Supreme Court has significant influence over the development of legal policy, yet it must rely on external actors to bring to fruition the desired effect of its decisions. Among the most important such actors are state high courts who are often motivated to issue decisions promoting policies at odds with the U.S. Supreme Court and who have mechanisms to legitimize such decisions. This study builds on existing work on state court compliance with U.S. Supreme Court precedent by introducing a new theoretical framework that accounts for the impact of state-specific precedent vitality, or the degree to which the high court of a specific state has positively treated a U.S. Supreme Court precedent, on state high court compliance. Our analysis of state high court treatment of Miller v. California provides strong evidence for the importance of state-specific vitality as a determinant of state high court compliance.

It is rare for a national court to be invited to recognise and enforce a judgment from an international or regional court, as opposed to a judgment from a foreign national court. This article examines a decision of the High Court of Ghana given in respect of an application to enforce a judgment of the ECOWAS Court of Justice. The article examines the bases of the Ghanaian court's decision not to enforce the ECOWAS judgment and suggests how future cases may be decided.

The question of the legal and normative limitations on the competence of states to agree to a mechanism that enables foreign investors to bypass the jurisdiction of municipal courts, using legal rules that do not apply in municipal law, and thereby enabling arbitral tribunals to override municipal courts (the jurisdiction of which is original, appellate and final) has not been explored in the literature. I address this question with particular reference to Ghana. I dispute the conventional supposition that municipal courts are incapable of resolving investor-state disputes and question the justification for direct access to investor-state arbitration in customary international law. I argue that the local remedies rule and fundamental principles of Ghana’s legal system—in which the courts have jurisdiction over all legal disputes and persons, and in which separation of powers, rule of law, transparency and accountability are constitutionally entrenched—limit the state’s competence to agree to inves...

India’s Supreme Court has played the role of a countermajoritarian check but has also flirted with populism. This essay examines three aspects of India’s higher judiciary: the struggle between the judiciary and the other branches over “custody” of the Constitution; the question of judicial independence and who has the right to appoint judges (in India, uniquely, the higher courts claim a right to have the final say on filling their own vacancies); and the charges against the Supreme Court of judicial activism, which are tied to the institution of Public-Interest Litigation and regular judicial forays into the executive and legislative domains.

Recent federal court decisions have deregulated state campaign finance systems to a significant degree. These decisions are not only rooted in First Amendment jurisprudence but also raise issues of federalism. Although most studies of federal–state conflict focus on disputes between state officials and elected federal policy makers, courts are also policy-making institutions, and in the absence of policy making by other federal branches, courts have become the critical federal policy maker in this area. In response to U.S. Supreme Court rulings that deregulate campaign finance rules and are out of step with the policy preferences of many state electorates and officials, states are attempting to resist these rulings, but using different approaches than are used by states in disputes with the Congress or President. We discuss these rulings and state responses to them. We also describe the implications of these dynamics for federalism.

The Supreme Court sometimes chooses to use its limited time to revisit earlier decisions. In doing so, the justices signal the importance of reasserting, correcting, or reconsidering their arguments. We find that the likelihood of the Supreme Court revisiting a case in a given year increases significantly as the number of circuit courts critical of that opinion increases. These results suggest that an acknowledgment of the important role of the circuit courts influences the decision to revisit cases. Even if the Court merely clarifies or reinforces earlier opinions, criticism in the circuits prompts the Court to take some action. Though the Supreme Court’s word is final, barring a constitutional amendment or legislative override in nonconstitutional cases, the mechanism of criticism in the circuits allows reconsideration of many issues already decided by the Court and sheds light on the importance of institutional structures to the maintenance of the rule of law.

This article examines the structure and competences of the Court of the Eurasian Economic Union (eaeu Court). In doing so, it provides a comparative analysis of the eaeu Court with other judicial bodies created in the post-Soviet area, the Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community (Community Court), as well as in some respects with the Court of Justice of the European Union (cjeu). Summarizing major problems of the eaeu Court and setting out the Court’s first case, the article argues that the rules governing the activities of the eaeu Court represent a significant setback against the progress achieved previously by the Community Court. This setback reflects the lack of political will of the eaeu members to transform the eaeu Court into an effective judicial body similar to the cjeu and their insufficient commitment to the rule of law.