US Supreme Court


US Supreme Court opens door to marriage equality, UK coming next

29 June 2013 by

Kris Perry kisses Sandy StierHollingsworth v Perry – No. 12–144 – Read judgment

United States v Windsor – No. 12–307 – Read judgment

In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.

The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.

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Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses

18 April 2013 by

shell460US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment 

In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices. 

The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag.  The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).


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Frivolous Atmospherics

13 April 2013 by

1563029463_f7bb4c814fis what the technology giant Myriad calls the US First Amendment and other human rights arguments raised by their opponents in the litigation concerning Myriad’s patents over cancer gene sequences BRCA1 and BRCA2.

We’ve been here before, in this previous post and in this, and next week the US Supreme Court starts hearing arguments in the latest round of this battle. The only reason for mentioning the issue now is to draw attention to  a fascinating article by US science historian Daniel Kevles in a recent edition of the New York Review of Books.

The author provides a dispassionate view of patent law, from its roots in the philosophy of the American revolution, which gave birth to the “Progress Clause” in the American Constitution. Clause 8 authorises Congress

to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
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The Patentability of Human Genes: more developments

20 March 2013 by

Breast Cancer in DNA StrandsCancer Voices Australia v Myriad Inc 13 February 2013 – read judgment

Another battle in the war against gene patenting has been lost, this time in Australia.

The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes  by ruling that  isolated nucleic acid (including isolated DNA and RNA) is patentable.  
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The small farmer and Goliath Monsanto

27 February 2013 by

Feb22_2013_34044559_Soybeans_MonsantoMistakeHeadline4325411721Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard  opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products.  The dispute in  Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.

The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology.  This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof.  As The Atlantic summarises it:

 It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds.
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Should any genetic information be a trade secret?

3 December 2012 by

dna_infograph1I posted previously on the decision by the   US Court of Appeals for the Federal Circuit to uphold the patents on the genetics company Myriad’s gene sequences for breast cancer research and therapy. In September 2012 the American Civil Liberties Union once again petitioned for Supreme Court review.  The Court should decide today whether to review the case.

The whole question of proprietary claims over genetic information is not limited to patents and is very much open to debate.  In my piece on the US Bioethics Commission’s report to the Obama administration I discussed the challenge faced by lawmakers in regulating the increasing flow of genomic information so as to protect people’s privacy without shutting down the flow of data vital to biomedical research. Whilst it is true that the availability of patent protection creates vital incentives for such research, genetic testing companies like Myriad can extend their exclusivity beyond their patented products by creating limiting access to private databases containing information vital to interpreting the clinical significance of human genetic variations. There is concern that this threatens to impede the clinical interpretation of genomic medicine. The Genomics Law Report Journal reports that

National health systems and insurers, regulators, researchers, providers and patients all have a strong interest in ensuring broad access to information about the clinical significance of variants discovered through genetic testing.
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US Supreme Court to rule on affirmative action

1 October 2012 by

The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.

The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional.  The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.

In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes.   Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools).  To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule  with race being a “plus factor” in admission.
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“Thank God for Dead Soldiers” vs. “British soldiers go to hell”

3 March 2011 by

Snyder v. Phelps (09-751), United States Supreme Court – Read judgment

A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.

By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?

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Feature | Freedom of expression, the American way

26 April 2010 by

The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.

If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.

Similar but different

Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not
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