Adjudication Of Claims Research Articles

Особливості судового оскарження постанов у справах про адміністративні правопорушення, винесених працівниками Національної поліції (за результатами судової практики)

The purpose of the article is to study specialties of judicial claiming of acts in cases of administrative offences rendered by police officers. To conduct the research successfully, the author used the following methods of scientific knowledge: logical, historical, systemic-functional, and formally-dogmatic. As a result of the study, the author analyzes the practice of administrative courts about adjudication of claims on acts of administrative offences made by police officers, including traffic violations. Established that a lot of cases in which police officers appear as defendants, cases about appeal against the decision, actions or omissions of police officers due to bringing to administrative responsibility associated with some interconnected factors: a large number of appeals against decisions in cases of violations of traffic rules with a high degree of ignoring the norms of traffic rules by all road users in our country; imperfect (sometimes problematic) road infrastructure; high latency of these offences and due to this a high level of impunity of drivers; conflict drivers and not ability to admit their guilt; absence of affective mechanism of pretrial resolving such disputes; easy access to theirs judicial resolving (no court fee); also don’t throw away the procedural illiteracy of police officers. All this in array leads to the fact that this category of cases is an essential part of the activity of general courts as administrative courts. Conclusions. Without going to the sociological analyze of this phenomenon, within the article author made the analyze of judicial practice of considering this category of case, found out the position of courts about resolving them that greatly affects on law enforcement practice and sometimes on the legislation and suggested some ways of their application by judges of administrative courts.

Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact on the protection afforded to women who have suffered this violence in other countries and seek protection from the United States. This is because U.S. asylum law trails decades behind even our flawed federal and state protections for victims of intimate partner violence. The male-centric lens through which the refugee definition was drafted and is interpreted continues to inhibit any progress in recognizing women’s asylum claims involving intimate partner violence. This Article finds that Matter of A-B- returns to the perception that intimate partner violence is a personal matter outside the scope of asylum protections. The decision demonstrates continued ignorance regarding the underlying reasons for intimate partner violence against women—gender and subordination. The failure to recognize that intimate partner violence occurs because of a woman’s gender is one of the primary obstacles to improvements in the treatment of asylum claims involving intimate partner violence. This Article contrasts the lack of progress in U.S. asylum law to provide protection to women who suffer intimate partner violence outside the United States with the advancements made in federal and state efforts to combat intimate partner violence occurring inside the United States. As a remedy, this Article recommends new legislation and regulations recognizing and guiding adjudication of these asylum claims, combined with judicial training and the development of a tracking mechanism for determinations in these types of cases. The current commitment to eradicating gender inequality within the United States is the perfect moment for reforming how we treat gender inequality when it occurs outside the United States.

Merit-based Claim Adjudication for Cancer Treatment Toxicities - Policy Trends that Lower Downstream Costs.

-Due largely to the lack of effective therapeutic options, between 1973-2013, chemoradiation toxic mucositis (CRTM) has remained an uncapped expenditure for 40 years, with incremental costs of $17,000-$40,000 per patient per episode. Costs in patient morbidity and mortality have continued as well. A recent therapeutic option associated with complete prevention and/or rapid sustained elimination (high potency polymerized cross-linked sucralfate, HPPCLS) delivers value by eliminating downstream costs CRTM experienced in the first 12 months. While many insurers carry the therapy as a specialty pharmacy support drug, few are familiar with the associated health economic benefits and the statutory requirements driving its coverage. -To present the rationale behind early policy trends that frame CRTM as an emergent/urgent medical condition mandated coverage as an essential health benefit. Rather than problematic for costs, this coverage trend appears to be value-based. -Discuss early adverse claim experience of HPPCLS. Present the costs, tenets and statutes driving policy trend toward obligatory coverage of CRTM. Review the ethical (fiduciary) and statutory requirements for CRTM coverage. -CRTM coverage is ethically responsible since it is a direct consequence of authorized cancer treatment. The symptom/signs complex of CRTM meets the 'prudent layperson' statutory definition of emergency medical condition. All previously uncapped downstream costs of CRTM can be reduced to the cost of therapy, saving $15-$30K per patient per CRTM episode. -Policy trend of CRTM coverage as an emergent/urgent medical condition is a value-based approach of toxicity management, conserving resources, cutting costs and eliminating patient morbidity and mortality.

Comparing constitutional adjudication of self-determination claims

The judicial resolution of claims of self-determination by national courts is still exceptional, but rulings seem to be increasing. This paper aims to compare the adjudication of claims of self-determination by constitutional or supreme courts. It will look at three judicial pronouncements from three jurisdictions: the Judgment of the Constitutional Court of the Russian Federation concerning the sovereignty of Tatarstan (1992), the Opinion of the Canadian Supreme Court concerning the secession of Quebec (1998), and the Judgment of the Spanish Constitutional Court concerning the declaration of sovereignty of the Parliament of Catalonia (2014). The paper will draw parallels in the way constitutional or supreme courts have tackled the tension between democracy and constitutionalism.

Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

Conversation about Masterpiece Cakeshop v. Colorado Civil Rights Commission has revolved around the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. But this focus misses important aspects of the Court’s decision. In Masterpiece Cakeshop, the Court addresses the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation as well as race. As we show in this essay, the decision supplies more guidance on Free Exercise exemptions under public accommodations laws than most have acknowledged. The Court affirms an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector’s beliefs, in the process repudiating longstanding arguments for expansive exemptions. We situate the Court’s concerns about the third-party harms of accommodation in Masterpiece Cakeshop in prior caselaw on antidiscrimination law and religious liberty. Finally, we relate the majority’s requirement of government neutrality in the adjudication of religious exemption claims to the majority’s instruction to limit religious exemptions in public accommodations. In particular, we demonstrate that the requirement that the government treat religious claimants evenhandedly and with respect does not translate into a requirement that the government grant religious claimants exemptions from public accommodations laws.

Introducing Multidisciplinary Perspectives to the Adjudication of Indigenous Rights

This special issue focuses on adjudication of indigenous peoples’ rights. In the last decades, indigenous peoples’ engagement with litigation has become a global phenomenon, with more and more indigenous communities engaging with court processes to get their rights recognised. Although for a long time litigation was mainly concentrated in post-colonial settlers’ societies such as Canada, Australia and New Zealand, the last few years have witnessed a notable increase in indigenous peoples’ recourse to courts across the globe. This is part of the larger ‘process of juridification’ of indigenous peoples’ politics, and the increased legal adjudication of indigenous claims.

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

Ensuring Only Good Claims Come in Small Packages: A Response to Scholarly Concerns About a Proposed Small Copyright Claims Tribunal

Empathy and Human Rights: The Case of Religious Dress

There has been a huge growth in the study of the concept of empathy - taking the perspective of others - across academic disciplines in recent decades. However, whilst a number of scholars and philosophers have argued that empathy might provide some theoretical underpinning for human rights norms, there has been little exploration as to how empathy might actually be used in the practical adjudication of human rights claims. This article seeks to address this gap. By using as a case study the European Court of Human Rights case law on Article 9 on religious dress and symbols, the authors explore how the concept of empathy might improve the Court’s adjudication on this issue via a process of attempting to understand and give weight to the profound commitment that religious dress/symbols may represent to people of faith.

Factitious Disorders and the Adjudication of Claims of Physical and Mental Injury

Factitious disorder involves the deceptive presentation of oneself or another as genuinely ill, for psychological benefits, as opposed to purely material ones. Although factitious disorders have been officially recognized since the DSM-III, and over a thousand articles and chapters have been written on the topic, the research base in this area is poorly developed, owing to the elusive quality of people with factitious disorder. Nevertheless, the issue of whether physical or mental illnesses or injuries that arise in legal cases are genuine, malingered, or factitious must be addressed by mental health examiners who serve as expert witnesses in such cases. In this review, we define and describe factitious disorder, including factitious disorder imposed on the self and factitious disorder imposed on another. We review what little is known about it, contrast it with related conditions, and review legal cases in which the theory of the case developed by a plaintiff or defendant might relate to the question of whether factitious disorder is present.

Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law

This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC)(hereafter Pillay).
 
 Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights.
 
 Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1) of the Constitution of Republic of South Africa 1996) can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3)) of the Constitution.

Immigration Adjudication: The Missing “Rule of Law”

The United States spends more than $19 billion each year on border and immigration enforcement.1 The Obama administration removed more people in eight years than the last four administrations combined.2 Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent3 of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system. While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system. DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

Ethical considerations in dental plan claims adjudication

Ethical considerations in dental plan claims adjudication

Policy Review: Appeals process for disability claims equals long wait time for veterans

Policymakers, advocate groups, and national VA leadership express concerns about the timeliness and quality of the Compensation and Pension (C&P) claims adjudication system. This C & P system is defined as the overarching process the Veterans Benefits Administration uses to review and to adjudicate a veteran’s claim for a service connected disability. For this policy review, we present a summary of the appeals process, a summary of delays, outline some change efforts, and conclude our review with an analysis of a proposal to systematically address and to resolve the appeals backlog, the Fully Developed Appeal.

The Un-Constitutionality of FASB, GASB, IASB, ISDA, ICMA, PCAOB and Government Bail-Out Programs for Financial Institutions

The PCAOB (USA), IASB and FASB/GASB (USA) perform important rule-making functions and affect accounting regulations, companies, financial institutions and government regulation around the world (many foreign countries raise capital or list their shares in the US markets; and many US companies operate in foreign countries). The PCAOB enacts procedural rules for adjudication of claims (and the PCAOB has statutory enforcement and adjudicative powers). The PCAOB, FASB, GASB, IASB, ISDA and ICMA and their standards are un-constitutional and that affects or may affect responses to accounting standards and also general economic activity. Government bail-outs of financial institutions are also un-constitutional. Sarbanes Oxley Act of 2002 (SOX; USA) was the first set of statutes in any country, that attempted to simultaneously address corporate governance, accounting practices, accounting standards and securities law problems – and subsequently, similar statutes were enacted in many countries. SOX (and similar statutes in other countries) is likely to continue to influence legislation, competition, civil procedure and adjudication in many countries where the constitutions are based on the US constitution – but elements of SOX are unconstitutional. Government bailouts of financial institutions are largely based on accounting and swaps/derivatives standards that are developed by ISDA/ICMA and IASB/FASB. The un-constitutionality of these “institutions” can affect conventional and un-conventional monetary policy; can increase actual and potential systemic risk, propensity for anti-competitive misconduct and financial instability; and are elements of structural changes in those industries.

Persistent Variation in Medicare Payment Authorization for Home Hemodialysis Treatments.

To analyze variation in medical care use attributable to Medicare's decentralized claims adjudication process as exemplified in home hemodialysis (HHD) therapy. Secondary data analysis using 2009-2012 paid Medicare claims for HHD and in-center hemodialysis (IHD). We compared variation across Medicare administrative contractors (MACs) in predicted paid treatments per standardized patient-month for HHD and IHD patients. We used ordinary least-squares regression to determine whether higher paid HHD treatment counts expanded HHD programs' presence among dialysis facilities. We identified HHD and IHD treatments using procedure, revenue center, and claim condition codes on type 72x claims. MACs varied persistently in predicted HHD treatments per patient-month, ranging from 14.3 to 21.9 treatments versus 10.9 to 12.4 IHD treatments. The presence of facilities' HHD programs was uncorrelated with average HHD payment counts. Medicare's claims adjudication process promotes variation in medical care use, as we observe among HHD patients. MACs' discretionary decision making, while potentially facilitating innovation, may admit inefficiency in care practice as well as inequitable access to health care services. Regulators should weigh the benefits of flexibility in local coverage decisions against those of national standards for medical necessity.

Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims

Using court decisions, interviews with legal actors, and ethnographic observations, this paper analyzes the development of sexual identity classifications for sexual minorities seeking asylum in the United States and argues that the adjudication of such claims works to consolidate and regulate sexual identities but also creates possibilities for recognizing marginalized queer identities. Asylum seekers must prove their sexual identities, and immigration officials must classify claimants as belonging to a protected group. At the inception of queer asylum law in 1990, protected categories were highly circumscribed, but the indeterminacy of the law allowed advocates and asylum seekers to challenge existing categories and stake out new claims based on their sexualities. Against the backdrop of extant criticisms of the asylum process for queers, this paper suggests that the way asylum law has been elaborated, adapted, and interpreted, particularly in approximately the past decade, offers possibilities for making unique identity claims that are not recognized in existing scholarship.

Internet Payment Blockades

Internet payment blockades are an attempt to enforce intellectual property rights by “following the money” that flows to online merchants who profit from piracy and counterfeiting. Where corporate copyright and trademark owners failed in the legislature and the judiciary to create binding public law requiring payment processors like MasterCard and Visa to act as intellectual property enforcers, “non-regulatory” intervention from the executive branch secured their cooperation as a matter of private ordering. The resulting voluntary best practices agreement prescribes a notice-and-termination protocol that extends the reach of U.S. intellectual property law into cyberspace, to merchants operating “foreign infringing sites.” It also privatizes the adjudication of infringement claims, raising issues of fairness and institutional competence. Like other forms of regulation by online intermediaries, payment blockades are subject to circumvention through disintermediation. Marrying peer-to-peer (P2P) technology with financial transactions, P2P virtual currencies like Bitcoin allow online merchants and their customers to work around payment blockades. INTRODUCTION 1524 I. WORKING TOWARD PAYMENT BLOCKADES: THE ROAD TO VOLUNTARISM 1529 A. In the Courts: Perfect 10 and the Secondary Liability Gambit 1529 1. Contributory Copyright Infringement 1531 2. Contributory Trademark Infringement 1533  Professor of Law, University of Idaho College of Law and Affiliate Scholar, Stanford University Center for Internet and Society (CIS). This paper was initially presented at the 2013 Works in Progress for Intellectual Property (WIPIP) conference, held at Santa Clara Law School. It has benefited from the feedback of WIPIP participants. I would like to thank Mark Bartholomew, Stacey Dogan, and David Post for insightful comments and suggestions on an earlier draft. I owe thanks, too, to Ann Bartow and Stacey Dogan for generous Jotwell reviews, and to Diana Gleason for assistance in obtaining primary documents. 1 Bridy: Internet Payment Blockades Published by UF Law Scholarship Repository, 2016 1524 FLORIDA LAW REVIEW [Vol. 67 3. Vicarious Copyright Infringement 1534 4. Vicarious Trademark Infringement 1535 5. Judge Kozinski’s Dissent 1536 6. Making Sense of the Split Decision 1538 B. In Congress: The Shadow of Potential Law 1540 C. In the White House: IPEC and the Paradox of Non-Regulatory Regulation 1543 II. HOW PAYMENT BLOCKADES WORK: “BEST PRACTICES TO ADDRESS COPYRIGHT INFRINGEMENT AND THE SALE OF COUNTERFEIT PRODUCTS ON THE INTERNET” 1548 A. The Protocol for Payment Processors 1549 B. The Protocol for Rights Owners 1553 III. SOME NORMATIVE CONSIDERATIONS 1554 A. Extraterritoriality 1554 B. Fair Process 1560 IV. WORKING AROUND PAYMENT BLOCKADES: OTHER WAYS TO PAY 1562 A. Vouchers for Downloads 1562 B. Bitcoin and Other P2P Virtual Currencies 1563 CONCLUSION 1567

Reasonable Accommodation: Faith and Judgment

This paper considers the approach of domestic courts and the European Court of Human Rights to the adjudication of religious liberty claims, contrasting them with the output of the United States Supreme Court. It questions the definition of religion and judicial illiteracy in faith based claims. It seeks to make take a fresh approach to such cases by recasting them as claims for freedom of conscience. It commends a nuanced application of the principle of reasonable accommodation.

The Need for National Registry

Currently medical outcomes research has generally been conducted with 3 sources of data: randomized clinical trials, administrative claims databases, and data registries. Each of these data sources has a unique set of applications, data quality issues, and requirements.1 In United State, clinical trials is part of the pharmaceutical and device pre-approval process thus it has highly regulated requirements for source document verification.2 In contrast, quality control of administrative data is primarily limited to fields directly related to claims adjudication. Thus, administrative claims data are significantly limited for the purposes of performing healthcare research.3 Like administrative claims data, registries are nonrandomized, observational datasets that can be generalized to real-world practice, depending on the representativeness of participants and the completeness of enrollment.4 However, as with the data collected in randomized clinical trials, registries include detailed clinical data using standardized data definitions.

Are Unions a Constitutional Anomaly?

The Supreme Court’s decision last term in Harris v. Quinn is its latest, and surely not its last, of dozens of encounters since the 1940s with the issue of mandatory union fees – fees that individuals may be required to pay as a condition of employment to the union that represents them in collective bargaining. Along the way to striking down the “agency fee” in Harris on First Amendment grounds, the Court proclaimed the current agency fee regime, blessed many times by the Court itself, to be an “anomaly.” This Article asks whether and how labor unions are themselves “anomalies” in our legal system, particularly in their constitutional entitlements. Its answer is a qualified and complicated “yes.” A solution to the agency fee problem, and to other constitutional puzzles in labor law, lies in a deeper understanding of how and why unions are distinctive in our legal system – distinctive even among private entities with public regulatory functions, which have frequently provoked constitutional controversy. To begin with, unions are voluntary associations of workers with constitutional entitlements to freedom of expression and associational autonomy. On the other hand, unions are also regulatory actors subject to a constellation of sui generis rights, powers, restrictions, and duties under U.S. labor law – a quid pro quo by which the labor laws both constrain and empower unions. Whatever the wisdom of the particular quid pro quo embodied in the labor laws – and it has been criticized from both ends of the political spectrum – it provides an essential context for the adjudication of constitutional claims by and against unions. This Article calls for reframing those constitutional claims to include both the quid and the quo of labor law – not only the alleged burdens that the labor laws impose on unions or individuals, but also any logically linked benefits or powers it confers on the claimant. The proposed analysis recasts not only the agency fee controversy and the related puzzle posed by state right-to-work laws, but also recurring challenges to the constitutionality of restrictions on union speech and recent efforts to bring “worker centers” under the umbrella of labor law. At the same time it offers clues to the future of unions and labor law if the Court continues down the path foreshadowed in Harris.