Appeal Decision Research Articles

Judge Richard A. Posner's Critique of Testimony by Vocational Experts at Social Security Disability Hearings and How It Affects Disability Claimants in Illinois, Indiana, and Wisconsin

Millions of persons annually file claims for disability benefits from the Social Security Administration. If their claims are denied, the claimants can pursue appeal hearings before administrative law judges. The key issue before the administrative law judges is frequently whether there are a significant number of jobs in the national economy that the claimants can perform, despite their medical problems. To answer this question in an individual case, the administrative law judge often elicits testimony from a vocational expert who, inter alia, estimates the numbers of particular jobs that exist in the economy. If an ALJ determines that there are a significant number of jobs that the claimant can perform, the denial of the disability claim will be affirmed. The claimant can ultimately appeal the denial of the disability claim by the administrative law judge in the federal court system. Judge Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit which hears appeals from federal district courts in Illinois, Indiana and Wisconsin. In a series of appeals decisions involving Social Security disability claims from 2014 through 2016, Judge Posner criticized the reliability of the testimony of vocational experts when they estimate the numbers of particular jobs that exist in the economy. However, federal district court judges and magistrate judges in Illinois, Indiana and Wisconsin have generally interpreted Judge Posner’s critique to be non-precedential and have not relied on it to reverse the denial of disability claims before them. The purpose of this article is to describe Judge Posner’s critique of the testimony of vocational experts at Social Security disability hearings and to examine why this critique has had a limited effect on the decisions on disability claims in district courts in Illinois, Indiana and Wisconsin.

Practical benefit rides again

This case note comments on a recent English Court of Appeal judgment departing from the pre-existing duty rule in contract law found in Foakes v Beer and extending the concept of practical benefit as good consideration to this situation. The note addresses the questions of precedent, the nature of the purported benefit in pre-existing duty situations, its relationship with the vitiating factor of economic duress and the future of the doctrine of promissory estoppel. The note argues that the Court of Appeal’s method of sidestepping recent Court of Appeal decisions upholding Foakes v Beer is open to question, that the Court of Appeal failed to consider the relationship between practical benefit and economic duress and that the future of the doctrine of promissory estoppel is in doubt.

Taking the evolution of legal doctrine seriously: review of Katayoun Baghai, Social Systems Theory and Judicial Review: Taking Jurisprudence Seriously (Farnham: Ashgate, 2015. 188 pp. £65/£58.50)

The endeavour to take jurisprudence seriously is addressed by Baghai, a sociologist, to those within her own discipline who fail to engage with the internal understandings of law, most particularly those exhibited within the discourse that accompanies appeal court decisions, namely the discourse that helps to establish and develop legal doctrine. In effect, the book is an appeal for sociologists to assign greater attention to legal doctrine as an object of study. But such an appeal can also be interpreted as a request for theorists who study legal doctrine to take sociology seriously – namely an invitation to legal theorists to bring sociology, or at least one version of it, to bear on their study of the evolution of doctrine. This proposal faces considerable resistance from those on both sides of this divide. Whilst Hart notoriously described The Concept of Law as an essay in both analytical jurisprudence and descriptive sociology, the analytic tradition that he sponsored has sought to augment its academic credentials by moving ever closer to philosophy rather than sociology. With the important exception of Brian Leiter's arguments for ‘naturalising jurisprudence’, the general drift of analytical jurisprudence has been towards a prioritising of philosophical methods over empirical insights. And the resistance to some rapprochement has not been limited to the philosophical side of the divide. The sociology of law has a long tradition of approaching the study of law in a manner that distances itself from the self-understandings of participants in the legal system (lawyers and especially judges). This transfers in turn into hostility towards the manner in which legal philosophy has engaged with those self-understandings, with its willingness to consider, at high levels of abstraction, whether law consists of rules, norms or principles. Rather than organising insiders' views into conceptual schemes, and then examining them for their coherence and consistency, legal sociology has generated its own facts and truths about laws and lawyers, principally using empirical methods (but also other methods) and contrasting these ‘truths’ with lawyer's self-understandings, treating the latter as an inferior form of knowledge either disconnected from reality or ideological rather than descriptive. It has also noticeably failed to engage with much of the central concern of legal philosophy – the attempt to identify law as a separate entity within society. Rather than considering the existence of law as a unity, it focuses instead on parts of law as examples of more general sociological categories, such as studying the legal profession within the sociology of professions or courts, legislatures and administrative agencies within the sociology of institutions or organisations.

(Certified) Humane Violence? Animal Welfare Labels, the Ambivalence of Humanizing the Inhumane, and What International Humanitarian Law Has to Do with It

The contemporary human-animal relationship is highly ambivalent. It is characterized by both the exacerbating exploitative use of animals and a progressing moral concern for the life, dignity, and welfare of animals. With regard to the agricultural use of animals (which is the quantitatively most significant area of animal use and accounts for more than sixty billion land animals slaughtered globally each year), these two poles stand in particular contrast. On the one hand, agriculture has been increasingly industrialized and intensified over the course of the Twentieth Century. The modern system of industrialized animal production (or the “animal-industrial complex”) is marked by a high degree of rationalization, automatization, efficiency, mass production, and profitability, and has turned animals into mere production units—biomachines that convert feed into meat, milk, and eggs. On the other hand, the transformation of agriculture to industrialized animal production has raised grave ethical concerns, and societal discomfort at the systemic disregard for the welfare of farmed animals has grown. Most people cringe at the sight of footage showing the horrifying conditions prevailing in factory farms and slaughterhouses, and the vast majority of society subscribes to the basic moral principle that inflicting unnecessary pain and suffering on animals is wrong (a dictum also underlying the nearly universal prohibition of animal cruelty and which is so ingrained it could be considered a “rule of civilization,” as noted by the dissent in a Canadian appeal decision regarding an elephant in a city-run zoo).

A Personal Perspective on Legislation: Northern Milk Revisited – Soured or Still Fresh?

The thesis of this article is that the overarching objective of statutory interpretation is to "make the Act work" as the Court of Appeal held in Northern Milk. This requires a common sense and practical approach. The article demonstrates the thesis by reference to subsequent Court of Appeal decisions and the complementary legislation establishing the Law Commission and the Parliamentary Counsel Office. The issues raised by the Law Commission’s recently reactivated reference on the law of contempt of court are considered by way of example. The conclusion is that the Northern Milk approach remains apposite.

The Scope of Executive Power Considered by the Fijian Courts in the Wrongful Dismissal Claim Filed by Prime Minister Qarase in Qarase v Bainimarama in 2008 and 2009

Since the Fiji Court of Appeal's decision in Qarase v Bainimarama in April, 2009, several academics and legal theorists have critically examined the two decisions. They claim that the trial judge erred in his conclusion that the defence of prerogative power was available to the President to dismiss Prime Minister Qarase. The Fiji Court of Appeal took the view that the prerogative power was abrogated after the Colony adopted the constitutional government in 1970.The critics argue that the Fiji Court of Appeal correctly interpreted that the prerogative power was abrogated therefore the President did not have the power to dismiss Prime Minister Qarase. They further claim that the Fiji Court of Appeal correctly concluded t hat the dismissal was a coup de tat despite the fact that there was evidence of foreign military force advancing towards the Republic which could have potentially resulted in civil war.The trial judge as well as the Fiji Court of Appeal did not consider the scope or the limits of executive power in sections 85-87 and section 194(7) of the 1997 constitution, however, both the courts held that the above statute did not provide the President any relevant power. This thesis examines whether the courts correctly interpreted the meaning of 'executive power' which was same as the power provided to the Australian Governor General in s 61 of the Australian constitution. In addition, this thesis examines whether the prerogative power was subsumed within the meaning of executive power in s 85-87?The Fiji Court of Appeal basically relied on the dismissal power in section 109, the emergency power in s 187 to conclude that because the dismissal did not comply with the above statute the dismissal was illegal and unconstitutional. This thesis examines whether the Court correctly interpreted the scope of the powers in the above legislation in concluding that the dismissal was illegal.

Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm

This article discusses the Quebec Court of Appeal decision in Cook that provides an unambiguous affirmation of the importance of victim impact evidence as a source of aggravation at sentencing. If followed in other jurisdictions, the decision will have a significant impact on the evolution of victim impact statements. To date, the victim impact statement has remained in a legal no man’s land, somewhere between an unsworn statement made by the victim, which may (or may not) be entered into the record and a form of evidence that can affect the quantum of punishment and hence the liberty interests of the defendant. This state of affairs is unsatisfactory for all concerned. In our view a victim impact statement serves a number of purposes, some expressive in nature. We discuss the concept of ancillary harm — inflicted on secondary crime victims — to demonstrate the utility of impact statements as a source of legally-relevant information at sentencing. We conclude that an impact statement is evidence that enables the court to reach a more accurate determination of the harm created by the offence. In this sense the use of victim impact evidence promotes the principle of proportionality at sentencing. This evidence is properly adduced at a separate penalty phase of the criminal process, namely the sentencing hearing.

Testing the transformative premise of the South African Constitutional Court: A comparison of High Courts, Supreme Court of Appeal and Constitutional Court socio-economic rights decisions, 1994–2015

The South African Constitutional Court was established in 1994 to herald a decisive break from the authoritarian apartheid legal order with its largely complicit, overwhelmingly executive-minded and status quo-oriented judiciary. There can be no doubt the court was designed to oversee a project of radical constitutional transformation that included the aims of advancing socio-economic equality and entrenching a new culture of judicial review and justification of power. Against this backdrop this article analyses the judgments in the six socio-economic rights cases that have been through the High Courts, the Supreme Court of Appeal and the Constitutional Court to examine the extent to which the Constitutional Court has acted as South Africa’s guiding judicial agent for social change, in the sense both of whether it has pursued the most transformative option in any given case, as well as whether the judgments of the Constitutional Court have been more transformative than those of the Supreme Court of Appeal and/or the High Courts. Using a methodology engaged by scholars exploring the role of courts in new democracies, which seeks to understand the variables that condition the social transformation performance of new courts and especially those with strong authoritarian legacies that are striving with new progressive legal agendas, the article draws some conclusions regarding the interplay between legal design and social composition of the judiciary that might resonate beyond the South African context.

On the Consideration of the Procedures to Challenge Arbitrators in the Egyptian Arbitration Law as Mandatory and the Ability to Appeal Decisions Made by Arbitral Institutions. A Commentary on the Cair

The Cairo Court of Appeal rendered an important decision regarding an arbitral tribunal’s decision on the challenge of an arbitrator, concluding that the procedures to challenge arbitrators provided for in the Egyptian Arbitration Law are not part of public policy. The Court thus rejected the party’s request to set aside the challenge decision and refused to examine it before the issuance of the final award.

Chronic, Irremediable Depression Constituting Mental Disability: Expanding Legal Rights to Euthanasia in Canada

Interdisciplinary and comparative research aims to establish: (a) if the challenge in differentiating between short-term and chronic psychological pain is legally problematic for the Canadian justice system; (b) if chronic, irremediable depression constitutes severe, intolerable, enduring suffering satisfying the disability requirement permitting euthanasia; (c) if chronic depression meets the grounds for mental disability classification; (d) if the application of “terminality” in Carter v Canada differs from the practical, legal interpretation by Canadian courts (e.g., a recent Alberta Court of Appeal decision); and (e) the medical, ethical, moral, and legal implications for physicians, patients, clinicians, and the legal community.

Legal Consequences of Animal Hoarding in New Zealand

A 10-year prohibition against a defendant from owning or exercising authority over any animals has been upheld by the New Zealand Court of Appeal in an animal hoarding case which has progressed through the New Zealand legal system over the past 5 years. This comment reviews the Court of Appeal decision ( Kondratyeva v R CA6/2015 2015] NZCA 266 [23 June 2015]) and explores the increasing evidence of a mental health component in animal hoarding behaviour. It also discusses the stress and burden that animal hoarding cases places on the shelters that have the legal responsibility for prosecuting animal cruelty cases in New Zealand.

Second medical use in Turkey.

Turkish patent legislation complies with European Patent Convention (EPC) 1973 and EPC 2000, but does not have a corresponding provision. This triggers a debate in Turkish Law, where no regulations address protection of second (or subsequent) use. Turkish validations of European patents concerning second medical uses that have been granted within the scope of EPC 2000. However, the approach to national patent applications and patents entered to Turkey through Patent Cooperation Treaty is still questionable since the Patent Decree Law is not offering an explicit protection to second medical use and European Board of Appeal decisions (especially G5/83) are not binding for Turkish authorities. This article overviews the current approach of the Turkish legal system to second medical use patents.

Practical Ways to Identify Measured Miles

AbstractChange is any addition, deletion, or revision to the general scope of a contract and may require an adjustment to the contract price or contract duration of a design or construction project. Many disputes arise out of changes, and successful resolution of those disputes requires that three elements be evaluated: liability, causation, and resultant injury (damages). A particular type of damage frequently alleged on changed projects is loss of labor productivity. One way to evaluate and quantify loss of labor productivity damages is through use of the measured mile technique. Problems exist with the measured mile approach, however, because there are no generally accepted guidelines for developing and applying the technique. Based on review and synthesis of project management literature and court and appeal board decisions, this paper presents practical considerations in the identification and application of measured miles. The intent is to help contractors, owners, consultants, and other parties ste...

Non-performance of statutory duty causing pure economic loss

This case note comments on the existence of a tortious duty of care when the defendant’s omission has caused pure economic loss. The orthodox position in the United Kingdom is that the existence of a statutory duty does not buttress a finding of duty of care in such cases. But a recent Hong Kong Court of Final Appeal decision went the other way, justifying a duty of care in such cases on the basis of a statutory duty. This case note tries to reconcile the positions in Hong Kong and the United Kingdom, and suggests that the Hong Kong approach be followed for good reasons.

Absence Policies and the Duty to Make Reasonable Adjustments

The Court of Appeal decision in Griffiths has provided some clarity with regard to the duty to make reasonable adjustments and, in particular, how employers should apply an absence policy to a disabled employee on long-term sick leave.

Unjust Enrichment in Australia 2015

A Digest, summary of and commentary upon Australian caselaw on Unjust Enrichment and Restitution in the year 2015. Includes analysis of the Victoria Court of Appeal Decision in Southage v Vescovi concerning the change of position defence in Australian law.

Recent Developments in the Law of Torts in Northern Ireland

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed. Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities. Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel. Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Private rights, public interests and water use conflicts: evolving water law and policy in Michigan

Water conflicts are rare across Michigan's history. As a result, water rights have received little attention by courts or the legislature. Traditionally, the common law of water rights in Michigan embraces the riparian doctrine for surface water and provides landowners with the right to use groundwater. However, two recent changes in common and statutory law significantly modify the legal relations among water users and others with a stake in water use decisions. A 2005 Michigan Court of Appeals decision created a new legal relation among riparian and groundwater rights holders. In 2008, Michigan's legislature passed laws aimed at regulating surface water and groundwater withdrawals. As an exercise of police power intended to protect public rights in water and associated environmental quality, the 2008 laws cap total water withdrawals. This program of restricting water withdrawals coexists with the state's common law which provides for reasonable use of surface water by riparian landowners and groundwater by owners of the overlying land. The result is a new set of legal relations, an uncertain legal environment, and a growing likelihood of water use conflicts. Because Michigan's body of water law is unique, neither courts nor legislature can rely on solutions used in other states.

Reception of oocytes from a partner

British Journal of MidwiferyVol. 24, No. 3 CommentReception of oocytes from a partnerGeorge F WinterGeorge F WinterSearch for more papers by this authorGeorge F WinterPublished Online:3 Mar 2016https://doi.org/10.12968/bjom.2016.24.3.160AboutSectionsView articleView Full TextPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareShare onFacebookTwitterLinked InEmail View article References Association of Radical Midwives (2013) How do midwives treat childbearing lesbians? A literature review. Midwifery Matters 139: 7–10 Google ScholarBuckley J (2015) Germaine Greer slams Elton John because his husband David Furnish is named as ‘mother’ on birth certificates of their two sons. www.dailymail.co.uk/news/article-3095268 (accessed 16 February 2016) Google ScholarEngland and Wales Court of Appeal (Civil Division) Decisions [2014] EWCA Civ 336 Google ScholarMarina S, Marina D, Marina F, Fosas N, Galiana N, Jové I (2010) Sharing motherhood: biological lesbian co-mothers, a new IVF indication. Hum Reprod 25(4): 938–41. doi: https://doi.org/10.1093/humrep/deq008 Crossref, Google ScholarPennings G (2015) Having a child together in lesbian families: combining gestation and genetics. J Med Ethics doi: https://doi.org/10.1136/medethics-2015-103007 Google ScholarZeiler K, Malmquist A (2014) Lesbian shared biological motherhood: the ethics of IVF with reception of oocytes from partner. Med Health Care Philos 17(3): 347–55. doi: https://doi.org/10.1007/s11019-013-9538-5 Crossref, Google Scholar FiguresReferencesRelatedDetails 2 March 2016Volume 24Issue 3ISSN (print): 0969-4900ISSN (online): 2052-4307 Metrics History Published online 3 March 2016 Published in print 2 March 2016 Information© MA Healthcare LimitedPDF download

The scope of legal advice privilege in Hong Kong

This article considers the recent Hong Kong Court of Appeal decision of Citic Pacific Limited v Secretary for Justice and Commissioner of Police, concerning the scope of legal advice privilege. In departing from the UK position, it was held that all documents gathered or brought into existence for the dominant purpose of obtaining legal advice are protected by legal advice privilege. This is to be welcomed for three reasons. Firstly, the dominant purpose test sits in line with the normative rationale of legal advice privilege. Secondly, the UK position is flawed as a matter of authority. Thirdly, although the ‘dominant purpose’ test appears difficult to apply, it is preferable to the competing alternatives of the sole purpose test and the substantial purpose test. In terms of the practical application of the privilege, it is submitted that the Court of Appeal should have set out a list of guidelines to supplement the dominant purpose test.