Panel selection on high courts

Is Bigger Always Better? On Optimal Panel Size, with Evidence from the Supreme Court of Canada

Holding on to a huge victory for American health

The paper terminates by outlining the multimedia UI of a prototype of the KR based Innovation Expert System (IES), which tests a claimed classical as well as emerging technology invention under the Substantive Law (SPL) of any National System (NPS), in particular under the 4 §§ 101/102/103/112 of 35 USC, as interpreted by the Supreme Courts' KSR/Bilski/Mayo decisions. Already this IES prototype is capable of indicating the amazing power of the Patent induced by this US Highest Courts' SPL precedents as to such tests for a claimed invention. It works semi-automated when testing in explorative mode and fully automated/real- time when testing in confirmative mode. Developing this powerful Technology has been enabled by performing substantial Mathematical KR research about recent US Highest Courts' patent precedents published by Mathematical KR research papers and amicus briefs submitted to the US Supreme Court and CAFC as to KR insights so obtained into the problems of SPL precedents, e.g. when dealing with claimed emerging technology inventions.  Index Terms—SPL (substantive patent law) and KR based claimed inventions' tests, a KR based IES prototype and its UI, emerging technologies inventions, the supreme court's KSR/Bilski/Mayo decisions and their notions of inventive concept/preemptivity/abstract idea, the CAFC's recent precedents

This chapter sets out and justifies the building blocks of commitment and cooperation. These two dimensions allow the authors to situate high courts relative to each other. They use them to focus on the five main high courts in their study, namely, the US Supreme Court, the UK Supreme Court (and its predecessor House of Lords), the Supreme Court of Canada, the High Court of Australia, and the Indian Supreme Court. This chapter provides both a preliminary assessment of how these courts sit relative to each other along these two dimensions and a brief overview of the key design choices made by each of these courts.

The modern Russian legal system functions and develops in conditions of active interaction with other national and international legal systems. This reflects the objective global trends of globalization, part of which are the processes of convergence and integration of legal systems. During these processes, an exchange of experience takes place between countries on legal development issues, which, in turn, often entails shifts in national legal systems, including changes in the role and significance of various sources of national law. In this regard, scientific research on the functioning of the judicial precedent is highly relevant for the Russian Federation, especially concerning countries of the Anglo-Saxon legal family, where the judicial precedent is considered to be the main source of law. At the same time, the use of general scientific methods of scientific knowledge (dialectical method, analysis, synthesis) in combination with specific legal methods (comparative legal method, historical legal method) makes it possible to comprehend legal phenomena that develop in various legal systems and to outline the directions of the corresponding discussion within the framework of Russian law. The topic of super precedents of the US Supreme Court, discussed in the American scientific community, is of particular interest here. One of the key elements of the US legal system is the stare decisis principle, which implies the obligation of courts to follow previously created precedents in resolving similar cases. The vertical aspect of stare decisis means that lower courts are bound by precedents created by higher courts, while horizontal stare decisis implies that courts are bound by their own decisions. The horizontal aspect of stare decisis includes the right of a court to deviate from its own precedent in the presence of appropriate circumstances and grounds. The US Supreme Court exercises this right quite regularly. At the same time, many American legal scholars point to the existence of such decisions of the Supreme Court that cannot be revised under any circumstances due to the fundamental importance of these decisions for American law and society. Such decisions are denoted by the concept “super precedent”. Scholars evaluate individual decisions of the Supreme Court on the subject of their possible superprecedent status. Signs of super precedence are highlighted, and attempts to classify super precedents are also suggested. Despite certain conventionality of the concept of a super precedent, the study of this issue seems to be relevant for Russian legal science. Such a study can be important to further deepen our understanding of the mechanisms of the judiciary.

VIEWPOINT: A Letter to the Chief Justice

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share. The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times and Stephens v West Australian Newspapers. Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine. That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission. The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution. In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution. In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange. Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.

The criminal liability of the President for acts committed in the exercise of his office covers a complex of issues related to all areas of the legal system. Indeed, the criminal law aspects of the grounds and manner of criminal liability are complemented by constitutional elements. The special position and powers of the President co-determine the scope of responsibility. The President’s actions that fall within the limits of his powers and duties remain, for obvious reasons, outside the scope of repressive responsibility. The scope of presidential responsibility is also co-determined by institutions categorised as instruments of corrective justice, including states of necessity and circumstances excluding fault. This issue can be analysed from a purely penal perspective or it can also take into account elements of constitutional regulation. The US Supreme Court’s approach was based on yet another perspective. The elements that determine the limits of the President’s criminal liability for acts committed in the exercise of his office are sought by the Supreme Court in its reconstruction of the principle of separation of powers. Pointing to the presidential powers set out in Article II of the US Constitution, it assumes that they delimit the area of independent and exclusive powers, within the scope of which Congress may not interfere by means of legislation. By virtue of the will of the legislature thus reconstructed, Congress lacks the authority to enact laws providing for the criminal liability of the President in this respect. Consequently, the courts also lack the competence to oversee such cases. The above assumptions form the basis for the US Supreme Court to reconstruct from the US Constitution the absolute immunity of the President in terms of the exclusive and preclusive competences set out in the US Constitution. In addition, the Supreme Court also derives from the US Constitution the construction of presumptive immunity, which covers presidential actions in the area of shared powers with Congress. Although, in this respect, the Constitution does not deprive Congress of the power to legislate, including the power to define the grounds for the President’s criminal liability, the bring to criminal charges against the President is contingent on a demonstration that this will not unduly interfere with the efficiency and authority of the executive branch. By locating the grounds for the reconstruction of presidential immunity at the level of constitutional provisions relating to the principle of separation of powers, the approach presented by the Supreme Court transforms criminal law analyses into systemic constitutional considerations. In this way, the Supreme Court’s decision on presidential immunity is part of the debates concerning the nature of the constitutional principle of the separation of powers, the court’s competence to rule on constitutional issues, the delimitation of the scope of competences of the authorities, and, finally, the disputes concerning the scope of the Court’s cognition in the sphere of matters that are strongly entangled politically and morally. The US Supreme Court’s decision on presidential immunity was based to a significant extent on the jurisprudential concept (doctrine) of the separation of powers. The essential line of argumentation is based on the Supreme Court’s reconstruction of the content, meaning and function of the principle of separation of powers, which forms the basis for the position relating to the scope and type of presidential immunity. At the same time, in the sphere related to absolute immunity, one can see in it a reference to the concept (doctrine) of the republican separation of powers. The exclusion of the possibility of the courts’ interference in the area of competence regulated by Article II of the US Constitution means that the assessment of the President should take place at the level of constitutional responsibility in the impeachment procedure. In the area covered by the construction of impeachment, by confirming the competence of the courts to carry out a criminal assessment, it supplements the prerequisites for liability with elements reconstructed from the Constitution. It thus expresses restraint in the sphere of judicial competence on matters relating to constitutional and political aspects. It does not decide the question of immunity unequivocally, leaving a considerable area of discretion, leaving a space that can be filled by subsequent decisions of the federal courts on this issue.

The United States’ highest court has declined to review a Kentucky law that requires doctors performing abortions to perform fetal ultrasounds and show them to patients, even if the patient...

Against the background of a broadly shared perception of the United States and the European Union as very different kinds of international actors, and a related assumption that the US Supreme Court and the Court of Justice of the European Union (CJEU) treat international law very differently, this article examines the approaches of the CJEU and the US Supreme Court to the internalization of international law over the decade 2002–2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by contrast, is perceived as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been generally viewed—with its WTO jurisprudence seen as an exception—as actively contributing to that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests, however, that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the welcoming judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.

Primary care for a panel of patients is a central component of population health, but the optimal panel size is unclear. To review evidence about the association of primary care panel size with health care outcomes and provider burnout. English-language searches of multiple databases from inception to October 2019 and Google searches performed in September 2019. English-language studies of any design, including simulation models, that assessed the association between primary care panel size and safety, efficacy, patient-centeredness, timeliness, efficiency, equity, or provider burnout. Independent, dual-reviewer extraction; group consensus rating of certainty of evidence. Sixteen hypothesis-testing studies and 12 simulation modeling studies met inclusion criteria. All but 1 hypothesis-testing study were cross-sectional assessments of association. Three studies each provided low-certainty evidence that increasing panel size was associated with no or modestly adverse effects on patient-centered and effective care. Eight studies provided low-certainty evidence that increasing panel size was associated with variable effects on timely care. No studies assessed the effect of panel size on safety, efficiency, or equity. One study provided very-low-certainty evidence of an association between increased panel size and provider burnout. The 12 simulation studies evaluated 5 models; all used access as the only outcome of care. Five and 2 studies, respectively, provided moderate-certainty evidence that adjusting panel size for case mix and adding clinical conditions to the case mix resulted in better access. No studies had concurrent comparison groups, and published and unpublished studies may have been missed. Evidence is insufficient to make evidence-based recommendations about the optimal primary care panel size for achieving beneficial health outcomes. Veterans Affairs Quality Enhancement Research Initiative.

The purpose of the article on the topic of judicial lawmaking in the USA, which attempts to invade the educational process and intensify the study of the History of State and Law of Foreign Countries, is devoted to the U.S. Supreme Court – the founder of constitutional justice and one of the pillars in the system of separation of powers. This is a unique judicial institution with an exceptional degree of influence, about which America’s famous political writer Alexis do Tocqueville stated that “never before have any people had such a powerful judicial authority”. The purpose of the research is to identify the features of the law-making activity of the US Supreme Court, since judicial law making in science remains an unsolved problem. To achieve this goal, the methods of scientific research were used, in the form of general methods, complex special methods of jurisprudence. For the reader, the phenomenon of the us Supreme Court is interesting in several aspects. First, from the point of view of the evolution of American law and the judicial system in all its dynamics and contradictions. Secondly, in terms of the implementation of judicial activity, complex thought processes of finding the necessary precedents and arguments in a particular case, achieving (if possible) a compromise between the judges-colleagues. Judicial activity should be interpreted not only as based on law, but also subject to ideological and political influences. The results of the research are very important for researchers of the legal system of foreign countries, and to look at the us Supreme Court through the eyes of American history as an institution that has the potential to enter into conflict with both the legislative and Executive authorities. On the other hand, it is important to understand the logic of filling vacancies in the Supreme Court by the Executive branch. In the ongoing in this country, searches the reasons for negative political and legal phenomena attention is drawn to the interpretation of the Federal Constitution, the U.S. Supreme Court, in General, the activities of the court performing a legislative function, it is unusual and constitutional loose. However, many issues remain insufficiently studied, including the role of the US Supreme Court in constitutional law making, and the phenomenon of judicial law making itself. Key words: lawmaking, jurisdiction, Supreme Court, USA, legislature.

Can an apparent loser snatch victory out of the jaws of defeat? This question occupied the attention of the late William H. Riker during the last ten years of his career, and it is one that he answered in the affirmative: By constructing choice situations in order to manipulate outcomes, losers can become winners, and vice versa. Riker even coined a term, ‘heresthetics’, to describe this ‘art of political manipulation’. But is Riker’s rather large body of work the ‘idiosyncratic’ product of a ‘singular genius’ or can it serve as the ‘foundation of a new theory of politics’? Scholars have recently raised this question, and not unreasonably so, for Riker’s theory of heresthetics has yet to gain a serious foothold into the political science literature. We develop a game-theoretic model, which enables leaders — in our case, Chief Justices — to engage in heresthetical manipulations. From this model, we deduce propositions about the circumstances that would lead them to invoke heresthetical devices, as well as the particular strategies we would expect them to employ. Finally, we explore the propositions against data amassed from the private papers of two former justices. Our results indicate that Riker’s work was not the ‘idiosyncratic’ product of a ‘singular genius’ but rather can serve as the ‘foundation of a new theory of politics’.

The recast of the European Insolvency Regulation, which has been applicable from 26 June 2017, implements a philosophy of Euro universalism, according to which insolvency proceedings opened in a Member State where the debtor has its centre of main interests (COMI) should have a universal scope and encompass all the debtor’s assets situated throughout the EU. The wording of the Recast Regulation is intended to comply with the ECJ case law concerning COMI, such as Interedil, Eurofood, Bank Handlowy or Mediasucre judgments. Nevertheless, it is now questioned whether the Recast Regulation strengthens or rather weakens the COMI/registered office rebuttable presumption and opens the gate for insolvency forum shopping. As far as international company law is concerned, the issue of transfer of seat as well as forum shopping has been widely discussed. So far the ECJ has issued a series of judgments in which it has explained the European freedom of establishment and the cross-border activities of companies in the internal market. Similarly, the US Supreme Court has issued several signifcant decisions, such as CTP Corp. v. Dynamics Corp. of America, Edgar v. MITE Corp., and International Shoe Co. v. State of Washington, in which the limits of acceptable forum shopping are better delineated. Based on the aforementioned, it may be concluded that European harmonization measures facilitating cross-border mobility should additionally assist in achieving predictability and efficiency, as well as the economic viability and security of the operations under consideration. This contribution analyses and expounds on the lessons that can be learned from both the ECJ case law as well as US Supreme Court’s decisions on international company law, including an examination of their effect on insolvency forum shopping. There is no doubt that, if successful, harmonized legislation on these matters would be a great asset for the internal market.

Letters from Vienna: Reflections on the Coffee House Debate on Whether Arbitration is Appropriate for the Resolution of Mass Claims in the Aftermath of the US Supreme Court Decision in At&T Mobility V. Concepcion