Appeals Panel Research Articles

Appealing the Editor's Decision: When and How.

Receiving a message from an editor that transmits a “do not accept” decision is a uniformly disappointing experience for author-investigators. In this dispiriting situation, it is critical that correspondence from the Editor is clear and courteous, includes the reviewer comments, provides an explanation for any Editor disagreement with the reviewers that had bearing on the decision, and conveys some indication of why the paper was not accepted. In all scientific fields, every step in the peer review and editorial decision-making process involves judgment and balance of factors including importance and timeliness of the topic, technical accuracy, clarity of exposition, novelty, and interest to readers (“Decisions, decisions,” 2002). The processes we use at Nursing Research are systematic. We attempt to ensure that every submission receives a prompt, thorough, and fair review. We select peer reviewers with content and methodological expertise, ask reviewers to report any potential conflicts of interest (to the extent that these are knowable in a blinded review process), provide structured guidelines for completing a review, and continuously monitor review quality. The decision to accept or reject a manuscript is based on the advisory input from reviewers (who may disagree in their appraisals of a paper) and editor assessment of the scientific rigor of a manuscript and its potential contribution to advancing the science, as well as to its fit with the editorial mission of the journal. The Editor has the final authority and responsibility for making the decision about the disposition of each manuscript. Editors and peer reviewers are fallible. Even when fair and informed processes are in place, errors in decision-making can occur. For this reason, journals should have a declared mechanism for authors to appeal against editorial decisions (Committee on Publication Ethics [COPE], 2011). Consistent with recommendations from COPE, Nursing Research has instituted a process for handling appeals against editorial decisions to reject a manuscript. The appeal process is intended for use in situations where authors can make a convincing argument that a serious lapse in the peer review or editorial decision-making process may have occurred. Simple disagreement with a decision to reject a paper is not grounds for an appeal. The appeal process at Nursing Research is delineated in the Information for Authors (http://journals.lww.com/nursingresearchonline/Pages/informationforauthors.aspx). Key details are as follows: The appeal must be submitted to the Editor between 14-28 calendar days after the date of the decision to reject a manuscript. Specific rationale for the appeal must be provided. The Editor will notify the corresponding author whether an appeal is warranted or not. Upon determination by the Editor that an appeal is warranted, the Editor will convene an Appeal Panel composed of the Associate Editor and two Editorial Board Members and convey this to the corresponding author. The Appeal Panel will review the original manuscript, the reviewer comments, and author correspondence. They will independently provide their recommendations, with rationale, to either retain the Editor’s decision or rescind the decision to reject in favor of an invitation to revise and resubmit. The Associate Editor will inform the Editor of the Appeal Panel’s recommendations and the Editor will consider the recommendations and make a decision, which will then be communicated to the corresponding author within six weeks of receiving the letter requesting an appeal. In conclusion, the development of an appeal process has provided the editors, the editorial board, and our reviewers with the opportunity to reflect anew on how critical our manuscript decision-making responsibilities are. It has also provided a forum for a thoughtful discussion, with other nursing editors at the recent International Academy of Nursing Editors (INANE) meeting this past August in London that is reflected in this editorial (Henly, Chyun, Sullivan, & Vessey, 2016). We also hope that in delineating the process for an appeal that authors have a better appreciation of when an appeal is justified and how the process unfolds at Nursing Research.

Political and Legal Accountability in the European Banking Union

textabstractThis chapter looks at political and legal accountability in the European Banking Union. It is structured as follows. The discussion begins with a sketch of the constitutional structure and administrative machinery in the area of Banking Union. The focus then shifts to the concept of accountability, in an attempt to explain key concepts that will be used in this paper. This is followed by analysis of political accountability in the Single Supervisory Mechanism and the Single Resolution Mechanism, which are the main building blocks of the Banking Union thus far. The paper examines the respective roles of the European Parliament, Council, Eurogroup and national parliaments in holding the Banking Union actors accountable for the exercise of their duties. The penultimate section of the chapter concerns internal administrative review of supervisory measures and resolution actions, which is carried out by the Administrative Board of Review and the Appeal Panel respectively, as well as review by the Court of Justice of the European Union and national courts. The final section of the chapter glimpses briefly the vexed issue of the European Central Bank’s legitimacy in exercising supervisory tasks over banks in the Euro area (and potentially beyond).

The Single Resolution Mechanism (SRM) and the Single Resolution Fund (SRF): A Comprehensive Review of the Second Main Pillar of the European Banking Union (THIRD EDITION)

The second edition of the present study, only eight months after the first edition appeared, was deemed necessary given the entry into full operation of the Single Resolution Mechanism and the Single Resolution Fund on 1 January 2016. The study has been amended accordingly to reflect this development and take into consideration all the newly adopted legal acts and the secondary sources published after the cut-off date of the first edition, i.e. August 2015. This study aims to provide a systematic and comprehensive review of the provisions of the legal acts which are the sources of the EU Single Resolution Mechanism (‘SRM’) and the EU Single Resolution Fund (‘SRF’) that constitute the second main pillar of the European Banking Union (‘EBU’). It is structured in six (6) Sections: (1) Section A reviews the main provisions of the SRM Regulation (‘SRMR’) (under 2) and of the SRF Agreement (under 3), within the framework of the legal acts which constitute the sources of the EBU (under 1). (2) Section B provides a general overview of this new institutional framework, focusing on the various aspects of the Single Resolution Board (‘SRB’): its legal status, seat and composition, its administrative and management structure, the Appeal Panel, the independence and accountability regime, aspects of liability, and all other relevant provisions (under 1-7, respectively). (3) Section C deals with the provisions of the SRMR on resolution planning (under 1), with particular emphasis on those pertaining to the minimum requirement for own funds and eligible liabilities (MREL) (under 2) and to early intervention (under 3). (4) The resolution regime under the SRM Regulation is presented in Section D. This Section examines: the objectives and principles of resolution, the resolution procedure, the provisions on write-down and conversion of relevant capital instruments, the framework governing the resolution tools, the cooperation arrangements, as well as the investigatory powers of the Board and its power to impose penalties (under 1-6, resp.). (5) Section E deals with the SRF, and in particular with: its constitution, administration, investments, and use under the SRM Regulation (under 1), and the specific provisions of the SRF Agreement (under 2). (6) Finally, Section F contains the concluding remarks of the study.

Corporate Criminal Liability under International Law: The New TV S.A.L. and Akhbar Beirut S.A.L. Cases at the Special Tribunal for Lebanon

Relying on the Tribunal’s inherent powers, the Appeals Panel of the Special Tribunal for Lebanon decided in two cases, New TV S.A.L. and Akhbar Beirut S.A.L., that the Tribunal has jurisdiction over corporations for the offence of contempt. They decided so despite the absence of a clear provision explicitly granting such jurisdiction. This is the first time an international criminal tribunal asserts jurisdiction over legal persons. The article critically presents the Appeals Panel’s findings and places them in their historical and international context. Although limited in scope, the decisions are of great significance as business and human rights developments at the international level have emphasized the need for enhanced corporate accountability.

Another door shut? Maryam Masalha on the axing of the independent appeal panel on school exclusions

Another door shut? Maryam Masalha on the axing of the independent appeal panel on school exclusions

Social Interactions and the Content of Legal Opinions

We explore the forces that determine rulings and citations within a court. Our model predicts: (1) that the presence of a social interaction between a judicial panel i and the authors of a prior judgement j increases the probability that i reaches the same decision as j and that i cites j as a persuasive authority and (2) that the presence of a political litigant in case i increases the probability that i cites j. Data from the English Court of Appeal confirm that an appeal panel i randomly assigned to work with the authors of a prior dismissal j are more likely to dismiss case i and cite the prior dismissal j as a persuasive authority than an appeal panel without such contact. These effects are stronger when panel i is more experienced and when all the authors of the prior judgement j face the prospect of promotion. (JEL K40, Z13.)

Table of Contents

Abstract Cover Story Have a plan to control crowds at games Proactive planning for crowd control at games protects athletes, fans, institution Follow these recommendations to keep your athletics events as safe as possible Some effects of crowd rushes are positive The Two‐Minute Drill NCAA: Teams need to hit academic benchmark to play University fires AD in light of NCAA investigation Santa Clara resolves complaint involving gender discrimination Hurricanes sports programs accused of NCAA violations Leaders & Innovators MIKE LYNCH, ATHLETICS DIRECTOR, BOSTON UNIVERSITY Develop a strategic plan for long‐term success AD joins program that commits to future student‐athletes Title IX UC Davis litigation yields lessons regarding prong 2 of Title IX Wrestlers were given opportunity to compete, judge rules Licensing Be cautious when using student‐athlete images, experts say Policing bootleg merchandise is real challenge Managing Your Office Don't set new staff members up for failure with early labeling Find ways to support new hires You Make The Call Were Title IX claims barred by state statute of limitations? Lawsuits & Rulings LIABILITY Appeals panel throws pitcher's claim out of court TITLE IX University restructures to comply with Title IX A Conversation With… MARK LABARBERA, ATHLETICS DIRECTOR, VALPARAISO UNIVERSITY AD uses bowling to boost athletics income Resources/Ideas Learn vendor pitfalls Review agent issues Names in the News

Reasonable Grounds Evidence Involving Sexual Violence in Darfur

Internal and international conflicts can often involve a level of impunity that allows sexual violence to persist unchecked by military and political leaders. The recent reversal by an appeals panel at the International Criminal Court of a pretrial decision not to charge President al‐Bashir of Sudan with genocide in Darfur offers an important foundation for introducing new types of evidence that can increase the investigation and prosecution of sexual violence during conflicts. The reversal cited the incorrect use of the “beyond a reasonable doubt” standard when the lesser standard of “reasonable grounds” applied. Social science provides methods and measures that can be uniquely used to develop reasonable grounds evidence, for example, to demonstrate the roles of physical perpetrators acting together in horizontal relationships, as well as to establish the indirect participation through vertical relationships of higher‐level defendants, in a chain of command of superior responsibility. We illustrate these points by presenting social science evidence of the responsibility of President al‐Bashir and middle‐ and lower‐level figures in genocidal violence in Darfur.

How to Interpret, and Not Interpret, the Basic Law of Hong Kong

Some standards of interpretation used by the Court of Final Appeal, for interpretation of the Basic Law of Hong Kong, are undesirable, because they are variable standards. In order for a court to be a judicial body, it must use fixed standards. A political body, in contrast, uses variable standards. Example 1: An interpretive standard of the Court of Final Appeal is not correcting a drafting deficiency in an ordinance. The related interpretive standard is not reading an ordinance literally, to forestall an absurd result. Choosing not to correct a drafting deficiency yields a different outcome than does choosing to forestall an absurd result. Example 2: Another interpretive standard, used for finding whether there is an unlawful legislative derogation from a right guaranteed by the Bill of Rights, is the proportionality test. A legitimate proportion between a domiciliary of Hong Kong and the government of Hong Kong is variable, depending on which judges, on this Court of Final Appeal panel or that panel, undertake to measure proportionality. Example 3: An additional interpretative standard is whether ‘a fair balance has been struck’ in disputed legislation. Fairness is in the eye of the beholder. Case law of the Court of Final Appeal notwithstanding, the Basic Law of Hong Kong has a fixed meaning: the legislative intent of the Drafting Committee for the Basic Law of the Hong Kong Special Administrative Region, the drafter of the Basic Law. If a deficiency in the Basic Law is revealed, the remedy is amendment of the Basic Law in accordance with the amendment procedure prescribed in it. Amendment of the Basic Law by the Court of Final Appeal, in the guise of interpreting it, is impermissible. See also ‘Police Demands for Hong Kong Identity Cards' http://ssrn.com/abstract=1451238.

When the Theory Doesn't Fit the Facts: A Further Comment on Putrabali

The June 2007 decisions of the Cour de Cassation in the Putrabali arbitration represent the latest application of the French doctrine that an international arbitral award is not attached to any national juridical order and thus under Article VII of the New York Convention may be enforced in France even though annulled in its country of origin. The arbitration in Putrabali was conducted in London under the Rules of Arbitration and Appeal of the International General Produce Association (IGPA) between the Indonesian seller and the French buyer of a cargo of white pepper that was lost at sea while on route to Singapore for transhipment to Rotterdam. The buyer refused to pay. The IGPA Rules explicitly fix London as the geographical and juridical seat of the arbitration, confine party nominations for arbitrator to members of the IGPA Arbitration and Appeal Panel, exclude lawyers from any participation in the hearing or any appeal within IGPA, and allow application to the court under Section 69 of the UK Arbitration Act 1996 on issues of law arising in the arbitration. In October 2000 an award (the First Award) was rendered in favour of the seller. It was reversed in April 2001 by an appeal panel, which exonerated the buyer (the Second Award). The Second Award was annulled by a judgment of the High Court, which remanded the matter to the arbitrators. A Third Award, in August 2003, gave a net amount to the seller. In September 2003 the buyer obtained enforcement in France of the Second Award. The seller later unsuccessfully sought enforcement in France of the Third Award. The Cour de Cassation affirmed both decisions. The article considers three questions. First, in French law is party intent relevant in determining whether or not an arbitration is to be held to be embedded in a particular national legal system, as the facts suggest the parties intended in Putrabali? If so, should decisions of the legal system thus identified be taken into account in enforcement of awards in other countries? Second, is the French practice of granting enforcement to interim awards in favour of French respondents that can only serve to block enforcement of later adverse awards consistent with party expectations in international commercial arbitration? Third, does the French practice amount to no more than a race to the swift and is that consistent with party expectations or the more general interest of international commercial arbitration? The article concludes that there appear to be principles of French arbitration law that could usefully serve to modify current dogma and its application.

ML04P WHERE THE MEDICAL AND LEGAL FRATERNITIES CONVERGE AND DIVERGE

The medical fraternity is regularly requested by lawyers and insurance companies to assess a level of impairment of an injured person. The purpose of this assessment is to assist and provide some guidelines for lawyers and insurance companies to make a reasonable and accurate punitive level of compensation to the injured person.The medical assessment aims to define the level of impairment once “maximum medical improvement” has been reached. This assessment should be determined solely on objective findings. Doctors should not determine disability (alteration of an individual's capacity to meet personal, social or occupational demands) or a handicap (the impairment which substantially limits one or more of life's activities) which are subjective findings.The decision in Cummins v G James Safety Glass Pty Ltd 1994 of the NSW Workers Compensation Court, as it was then, highlights where the medical and legal fraternities converge and diverge. In this case, Burke CCJ opined, “the concept of permanent loss of efficient use is not concerned solely with the physiological or anatomical restrictions of movement. It is a much wider concept. It is concerned with use.” His Honour awarded the worker on the basis of disability rather than impairment. The decision was subsequently followed in Leanne Lukacic v Vickarni Pty Ltd t/as Chester Jakes Pharmacy 4 February 2005, where the Appeal Panel considered and accepted the earlier decision of Burke CCJ.The role of the Medical fraternity is to assess impairment. This case sets the precedence for focus on disability and allows for plaintiff lawyers to apply for punitive compensation for patients who have no objective signs.

Sex-Offender Commitment Law Ruled Unconstitutional

Sex-Offender Commitment Law Ruled Unconstitutional

Experimental Justice

This study utilizes the random assignment of judges to panels in the U.S. courts of appeals to measure how the partisanship of these judges affects whether or not the Supreme Court agrees to hear a case and subsequently overturns the decision of the lower panel. Results from the study provide evidence of partisan behavior in the Supreme Court review process in several politically salient issue areas between 1995 and 2004. Although most lower court decisions are never reviewed at all, in the cases examined, assigning three Democrats to a court of appeals panel, compared to three Republicans, more than quintupled the chances that the Supreme Court would overturn a decision from that panel. Despite the large magnitude of these effects, the estimates of partisan effects would have been even larger without the utilization of random assignment.

Do 'Off-Site' Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Results

Expressive activities that occur inside adult entertainment businesses are protected under the First Amendment. Ordinances aimed at regulating adult businesses must be motivated by a legitimate concern for the businesses' potential adverse secondary effects, including ambient noise, blight, and crime. To demonstrate that its motives are legitimate, the government must collect and weigh secondary effects evidence prior to enacting an ordinance. The courts have set a low evidentiary threshold for the government. The government can rely on secondary effects studies conducted in other places, for example, and on evidence that fails to satisfy arbitrary standards of rigor. The courts require that the government's evidence be relevant and reliable, however, and this requirement opens the door to Constitutional challenges. Recently, stores that sell sexually-explicit merchandise strictly for off-premise use have challenged the relevance of the government's secondary effects evidence to off-site adult businesses. The typical challenge argues (1) that off-site adult businesses are a distinct business model; (2) that no study has reported secondary effects for off-site adult businesses; and (3) that common sense dictates that off-site adult stores could not generate secondary effects. In 2002, agreeing with this argument, a 5th Circuit Court of Appeals panel struck down a San Antonio ordinance regulating off-site adult businesses. In the wake the 5th Circuit's Encore Videos decision, off-site adult businesses have used the same argument to challenge government ordinances throughout the U.S. In some cases, courts have agreed with the argument. In other cases, to avoid litigation, governments have agreed not to enforce regulations against off-site adult businesses. If the argument can be adapted to other adult business models, the Constitutionality of all adult business regulations are questioned. In this essay, we examine the legal, logical, and empirical bases of the argument used by off-site adult businesses to challenge the Constitutionality of ordinances. After describing the evolution of the U.S. Supreme Court's secondary effects doctrine, we apply the routine activity theory of crime to the off-site adult business model. Criminological theory predicts that all adult business models, including the off-site model, will have secondary effects. To test the theory, we report the results of a case study of an off-site adult business. Like other adult business models, this off-site store has large, significant crime-related secondary effect. Finally, we discuss the legal implications of the case study findings.

Report of the ACA Ethics Committee: 2005–2006

This report summarizes the activities of the American Counseling Association Ethics Committee during the period from July 1, 2005, through June 30, 2006. Ethics Committee membership, an overview of the mission of the Ethics Committee and goals for 2005–2006, summary data of the complaints filed and the inquiries received, and education activities of the Committee are presented.

California appeals panel backs arbitrator ethics standards—and overturns Ovitz's big award

AbstractA Hollywood mogul's arbitration award is overturned because of an arbitrator's failure to follow the state's recently beefed up—and soon to be revised—disclosure rules.

The Law and Politics: More Power to the Judges--and to the People?

DURING the final decades of the twentieth century, there was a steady shift in power from politicians to judges, as judicial review, the mechanism by which public bodies are held legally accountable, became increasingly important. This shift received considerable impetus with the passing of the Human Rights Act 1998 (HRA), which came into force in England and Wales on 2 October 2000. It not only provides an additional ground for individuals to challenge executive action, but it also gives the courts wide interpretative powers and a set of principles against which the actions of public bodies can be measured. It is too early to determine the effect of the Human Rights Act on executive/ judicial relations. However, there is already some evidence of how the courts will use their new powers. This article will examine this evidence, as provided by judicial review, private law and human rights actions brought in the courts during the year 2000. It will then consider the wider implications of the HRA. Judicial decisions during 2000 judicial review. At the beginning of the year 2000, the issue of General Pinochet still lingered. The legal intricacies of the case had preoccupied the courts since October 1998 but early in the new millennium the matter was resolved when the challenge of the decision of the Home Secretary, Jack Straw, to allow Pinochet to return to Chile on the grounds that he was unfit to stand trial was unsuccessful and the general left the country. The judges were, no doubt, relieved to see the end of the Pinochet saga, not only because of the highly charged nature of the succession of challenges and appeals to which it had given rise, but also because of the damage caused to the reputation of the House of Lords by the Hoffmann incident. Lord Hoffmann, one of the Law Lords who had heard Pinochet’s appeal against extradition, had a close association with Amnesty International and this was held by an appeal panel of the House of Lords to have given rise to a real danger of bias. As a result, the House of Lords had to rehear the case. The finding of bias produced a surge of challenges on similar grounds and confusion among judges as to when they should stand down from hearing cases. These culminated in the Locobail case, heard by the Court of Appeal in November 1999, 1 which sought to give some guidance. However, the issue of bias did not go away, arising in the context of the Human

President's Page: Maximize Value—Presenting the 1997-1998 Board of Directors

President's Page: Maximize Value—Presenting the 1997-1998 Board of Directors

At Law: Giving Scientists Their Due The Imanishi-Kari Decision

After ten years of investigation and controversy, the case against Dr. Thereza Imanishi-Kari has finally been resolved. Imanishi-Kari, an immunologist, was accused of scientific misconduct in 1986. After the fifth inquiry into the case, a Department of Health and Human Services (DHHS) appeals panel concluded in June 1996 that the evidence against Imanishi-Kari was insufficient prove that she had intentionally and deliberately fabricated and falsified experimental data and results support a published paper whose scientific accuracy had been questioned. Though the case had previously been reviewed by two institutional and two federal committees, the DHHS appeals panel took a fresh look at the facts. The panel of two lawyers and one scientist heard testimony for twenty-eight days and studied the massive written record prior inquiries had generated. For the first time, Imanishi-Kari was given the opportunity confront and cross-examine the government's witnesses. Current federal policy requires the DHHS Office of Research Integrity (ORI) establish misconduct by a preponderance of the evidence. Thus, prove its charges, ORI had furnish testimony and documents showing it was more likely than not that Imanishi-Kari had knowingly made up or altered experimental data. In a meticulous and lengthy opinion, the panel described the government's evidence against Imanishi-Kari and explained why it fell short.[1] In essence, the ORI and the appeals panel disagreed on the plausible inferences be drawn from Imanishi-Kari's research-related conduct and record keeping. The ORI contended that Imanishi-Kari's disorganized laboratory notebooks and her subsequent difficulty in accounting for various data entries indicated she had probably committed intentional data fabrication and falsification. But in the panel's judgment, the state of the notebooks and her problems in explaining them could just as plausibly be attributed a degree of sloppiness in recording and maintaining data, the anomalies and errors ordinarily found in real life scientific research, and ordinary forgetfulness about events that had occurred years earlier. The opinion analyzes an extensive array of evidence. Two points of disagreement between ORI and the appeals panel concerned the proper inferences be drawn from certain characteristics of Imanishi-Kari's reported data. The ORI contended that Imanishi-Kari had made up or changed data after the fact support the challenged paper. But the appeals panel noted that her notebook data contained many anomalies undermining the paper's conclusions. Why, the panel members wrote, would Imanishi-Kari make up or alter data in a way that would cast doubt on her published conclusions? Similarly, the panel noted that much of the challenged data addressed relatively trivial dimensions of the research. Why, they asked, would Imanishi-Kari report the central data truthfully, with all their flaws, but make up or change data on points of little importance the paper? The appeals panel also was extremely critical of the evidence ORI assembled support its claim of probable misconduct. The panel questioned the quality of forensic evidence offered show the notebook data were inauthentic; moreover, suggestions that the notebook materials were prepared and arranged at different times were not inconsistent with Imanishi-Kari's description of her usual data collection and record-keeping practices. Overall, the panel saw ORI as holding Imanishi-Kari a standard of excellence not found among scientists generally. The panel also faulted ORI for characterizing what was at most careless or negligent conduct as persuasive evidence of deliberate, intentional data manipulation. ORI charged Imanishi-Kari with misconduct because its staff was unconvinced by her explanation for the state of her laboratory materials. In turn, the panel was unconvinced by ORI's own explanation: to sustain the charges against Dr. …

Imanishi-Kari ruling slams ORI.

Tufts University immunologist Thereza Imanishi-Kari ended “a decade in limbo” when a government board cleared her of 19 charges that she committed scientific misconduct in connection with a 1986 paper in Cell . In ruling that the “preponderance of the evidence” did not support the government's case against her, an appeals panel of the Department of Health and Human Services was sharply critical of the actions of HHS's Office of Research Integrity (ORI), which it said presented evidence that was often “irrelevant, of limited probative value, internally inconsistent … or based on unwarranted assumptions.”