Law Claims Research Articles

Public Law Discrimination Claims: Developments in 2015

1. This article surveys the significant decisions and developments in discrimination cases this year that are likely to be of most relevance for public law claims.11 For ease of reference there is ...

Supreme Court: 'Ravichandran is Sound'

The cases of TN and MA (Afghanistan) v Secretary of State for Home Department v AA (Afghanistan) [2015] UKSC 40 show that most accounts of being indoctrinated, as advanced by unaccompanied asylum-seeking children (UASCs), into suicide bombing and jihad are disbelieved. AA, TN and MA were Afghan UASCs whose asylum claims were rejected. However, all of them were granted discretionary leave to enter and remain in UK until age of 17½ years under official policy (as reflected in guidance document Processing an Asylum Application from a Child). In UK Supreme Court, their cases turned sufficiency of appellate process and scope of duty with regard to family tracing. The appeals were dismissed in a cautious judgment. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agreed) held that, under old regime for appeals prior to phased cutover to new system under Immigration Act 2014, UASCs in UK were not deprived of an effective remedy by grant of leave to remain for less than a year, even though this precluded them from immediately appealing against asylum decision under section 83 of Nationality, Immigration and Asylum Act 2002 (NIAA). The court also held that a failure to properly discharge obligation to endeavour to trace family members of UASCs did not vitiate a decision to refuse asylum. AA, TN and MA claimed asylum and said that if they returned to Afghanistan they would be in danger from Taliban, government and police. All of them also argued that Home Office's failure to discharge tracing duty vitiated decision to reject asylum claims and that compliance with tracing duty would have produced evidence to support their accounts which had been disbelieved. The Court of Appeal, however, dismissed these appeals. (In addition to Supreme Court's decision, this paper also takes a detailed look at Court of Appeal's copious jurisprudence vexing issues surrounding Afghan minors.) Because statutory scheme under NIAA provided an effective remedy, court found it unnecessary to consider whether availability of judicial review bridged gap perceived by TN and MA. On one hand, court accepted that consequences of a breach of tracing duty are potentially relevant in evaluating present risk owing to possible effect nature and quality of available evidence. But other hand, that acknowledgement did not accord with exercising some form of remedial jurisdiction empowering judges to order grant of ILR where a right to refugee status (or humanitarian protection) was not evidentially made out. Two other points of general application emerged: • The fact that true date of birth of UASCs unknown an additional reason for not regarding supposed date of majority as necessarily changing assessment of risk. • UASCs arrive in UK because their families/friends pay a considerable cost for their fare and for an agent to arrange journey and they will be intransigent to cooperation with Home Office for return of child to Afghanistan. The earlier EU (Afghanistan) case itself paradigmatically demonstrated reality, that it was irrelevant to his family, and was rightly dismissed by Upper Tribunal and Court of Appeal. Turning to issue thrown up by Ravichandran and Rashid, Lord Toulson preferred former and said at para 72 that the Ravichandran principle applies hearing of asylum appeals without exception, and Rashid should no longer be followed. His Lordship held that and that doctrine espoused in Ravichandran is sound because on an asylum appeal question one of present status, i.e. whether or not an appellant meets criteria of Refugee Convention or he in need of humanitarian protection? So role of court was distinguishable from a situation involving a private law claim for breach of contract or tort where claimants can expect to be compensated, by being restored to original position, as if wrong had not been committed. The upshot was that courts needed to desist from following unsatisfactory principle in Rashid – which was an unclear exception where official procedural sloppiness and abuse of power resulted in an Iraqi Kurdish appellant being unfairly denied refugee status – because of impossibility of stating its scope with any degree of clarity.

‘Jistis ak Reparasyon pou Tout Viktim Kolera MINUSTAH’: The United Nations and the Right to Health in Haiti

AbstractThe Haiti cholera claims are focused upon the UN's violation of the rights of individuals affected by the cholera outbreak to access a remedy. The UN's absolute immunity from jurisdiction of national courts is counterbalanced by its duty to provide alternative dispute resolution mechanisms for private law claims. The UN has not only failed to provide those alternative dispute resolution mechanisms, but has repeatedly stated that no claims are receivable in these circumstances. Here we set out that even if the UN is able to shield itself from private law claims by using the cloak of absolute immunity, the UN might be held responsible for human rights violations arising from the cholera outbreak in Haiti. This article is concerned with the broader issue of whether the UN has violated and continues to violate individuals' right to health in Haiti.

How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics

To develop international law claims, it is often critical to compare different countries’ laws. This essay explores how methods drawn from comparative law and comparative politics research can help international lawyers make comparative inquiries more simply and straightforwardly.International lawyers recognize three main sources of legal authority: treaties, custom, and general principles. Cross-national comparisons are deeply embedded in the very definitions of two of these three sources. To establish international custom, an international lawyer must show that a broad range of states consistently engage in a certain practice out of a sense of legal obligation. To establish a general principle, an international lawyer must show that it is “recognized by civilized nations”; in practice this requires that the principle be found in diverse legal families. Treaty interpretation does not necessitate cross-country comparison as a matter of definition: in theory, the text of the treaty itself could provide the requisite answers. However, in practice, international and domestic courts are typically faced with ambiguous treaty terms. To interpret them, they often turn to the jurisprudence of diverse states and to subsequent state practice, thus implicitly beginning a comparative inquiry. in sum, comparative international law is useful for identifying and applying international law, as this volume’s introduction explains.

Why Law Can't Claim: What Law Would Claim If it Could

Joseph Raz holds that it is a conceptual truth that law claims morally legitimate authority: insofar as the claim to legitimate authority is part of the very nature of law, there cannot be a legal system that does not claim morally legitimate authority (the “Authority Thesis”). I argue that the Authority Thesis is problematic insofar as it ascribes, in a non-metaphorical sense, a claim-making capacity to something – a legal system – that is an abstract object, like a number, and hence lacks the conceptual prerequisites necessary for making claims. Second, I argue that if a legal system were the type of thing that could make a claim, the only claim about authority that could sensibly be grounded in paradigmatic legal practices would be a claim to legal, as opposed to morally legitimate, authority – i.e. the claim to have a general capacity to create content-independent legal, rather than moral, obligations.

Law as an Autonomous Discipline

The idea of autonomy of law applies in distinct but related ways to legal reasoning, judicial reasoning, legal scholarship, and legal education. Additionally, claims about the autonomy of law can be understood as descriptive, analytical, or prescriptive. In this article, the different permutations of autonomy of law claims are considered in the context of various approaches to law, including American legal realism, the legal process school, law and economics, and critical legal studies. American legal scholarship has gone through a period of overestimating the autonomy of legal reasoning, at the time of the legal formalists, to today, when the autonomy of legal reasoning is generally underestimated. Law's distinctive approach to reasoning and decision-making derives from the type of practice law is: a behavior-guiding practice, where the guidance is done primarily through general rules, and the rules are interpreted and applied by a hierarchical court system that gives precedential weight to earlier decisions. Within this sort of structure, legal discourse is distinctive, but can also be seen as merely a particular application of moral and political reasoning, rather than entirely abstracted from such reasoning.

Getting it Right: How the Iowa Supreme Court Correctly Made Room for Common Law State Torts in Clean Air Act Litigation

For centuries, common law torts have provided citizens with a reliable avenue to redress environmental harm. Whether such harm presented itself through water, air, or waste pollution, citizens have long been empowered to seek remedies in state courts, alleging most commonly nuisance, negligence, or trespass. However, recent expansion of federal oversight and regulation in the area of environmental law has compelled courts to consider whether these state common law torts have now been preempted by federal legislation.In 2011, the U.S. Supreme Court decision American Electric Power Co. v. Connecticut held that the Clean Air Act, which essentially regulates the nation’s air pollution, displaces all federal common law claims seeking relief against air polluters. The Court did not hold whether state common law claims were also preempted by the Clean Air Act, and instead, the Court expressly left the question undecided. Predictably, several lower federal courts have since confronted the question of whether state common law claims are preempted by the Clean Air Act. Although these courts have generally held that the Clean Air Act does not preempt all state common law claims, they have not been unanimous. In June of 2014, the Iowa Supreme Court became one of the first state supreme courts to address this issue in Freeman v. Grain Processing Corporation. In a unanimous decision, the Iowa court held that the plaintiffs’ common law tort claims against a local corn wet milling facility were not preempted by the Clean Air Act or its state law corollary. This Note contends that the Iowa Supreme Court’s preemption analysis was consistent with U.S. Supreme Court principles, and accordingly, that Freeman was correctly decided. The court’s decision reached the correct result for three reasons. First, the court recognized the conceptual and remedial differences between private tort actions and public environmental regulation. Second, the court gave full meaning to the structural framework and statutory language of the Clean Air Act. Third, the Iowa court properly relied on U.S. Supreme Court precedent interpreting the Clean Water Act to interpret the similar Clean Air Act.Freeman now allows Iowa citizens to redress actual harm caused by environmental air pollution through tort instead of relying on an overarching, bureaucratic regulatory system. Whether or not a citizen can actually demonstrate environmental harm — and collect damages from environmental polluters — was beyond the scope of the Freeman decision. As to the threshold question of whether common law claims can even coexist in an immense regulatory framework such as the Clean Air Act, Freeman v. Grain Processing Corporation correctly reaffirmed the role of common law torts in an age of environmental statutory regulation and determined that the Clean Air Act makes room for these state common law claims.

An Uneasy Case of Multiple Tracing Claims in English Law

This paper looks at issues arising in relation to multiple claims contingent on tracing and following. Where a person grants a security interest in an asset in favour of a lender and subsequently sells the asset to a third party without the secured creditor’s consent, a question arises whether the secured creditor may be able to claim both the sale proceeds and the original asset. This paper explores how English law deals with this problem. Unlike in a number of jurisdictions which implemented Personal Property Security Acts, no statute in English law provides an answer to this question. In addition, the judicial guidance is sparse. An existing view seems to be that the secured creditor cannot claim both the traceable proceeds and the original asset because the remedies are inconsistent although the basis for this inconsistency has not been explored. This paper fills the gap.

Encountering Law's Harm through Literary Critique: An Anti-elegy of Land and Sovereignty

This article focuses on the significance of practices of representation to law's role in adjudicating harm – both the role of representation in the adjudication of past harms, and in law's present-day assertions of authority. I focus in particular on the ways in which questions of harm to the person, relation to land, and sovereignty have been separated in law, and the effects of these practices in constructing legal authority. I turn to Wright's The Swan Book (2013) to provide a reading of the “undoing” of narratives of harm based on the person, and to thereby critique law's representations of harm. I argue that, as an anti-elegy in the Modernist tradition, Wright's novel provides a metaphor of harm and responsibility that reorganizes time, destabilizes law's claims to authority over the adjudication of harms, and queries law's claim to authority over other legal systems and sovereignties. This reading takes the framework of harm beyond the personal, to include the violent histories that have produced legal concepts including “land,” “sovereignty” and even “law” itself – histories and contexts that are separated and obscured in law.

On Corporate Accountability: Lead, Asbestos, and Fossil Fuel Lawsuits.

This paper examines the use of lawsuits against three industries that were eventually found to be selling products damaging to human heath and the environment: lead paint, asbestos, and fossil fuels. These industries are similar in that some companies tried to hide or distort information showing their products were harmful. Common law claims were eventually filed to hold the corporations accountable and compensate the injured. This paper considers the important role the lawsuits played in helping establish some accountability for the industries while also noting the limitations of the lawsuits. It will be argued that the lawsuits helped create pressure for government regulation of the industries' products but were less successful at securing compensation for the injured. Thus, the common law claims strengthened and supported administrative regulation and the adoption of industry alternatives more than they provided a means of legal redress.

Un]Happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider – and the parties did not argue – how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to grant digital performance rights to pre-1972 sound recordings are necessarily preempted by the Supremacy Clause of the United States Constitution. This article contends that enforcement of those state laws would create a serious obstacle to “the accomplishment and execution of the full purposes and objectives of Congress” in enacting the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”). The DPRA reflects Congress’ careful balancing of interests and recognition of the need for an easily administrable system of licensing, which Congress established through a complex and comprehensive compulsory licensing system. The Supremacy Clause thus preempts all state laws purporting to require licenses for digital performance rights or payment of royalties for the use of such rights by Internet or satellite radio stations beyond what is expressly provided for in the compulsory licensing system established by the DPRA, because permitting countless owners of individual pre-1972 sound recordings to assert claims for royalties and other damages outside of the compulsory licensing system would frustrate Congress’ goals in establishing that system. Part I of this article provides a brief overview of the federal rights at issue and the (very) brief history of performance rights in sound recordings, noting the absence of any express state law recognition of a performance right in sound recordings throughout most of the 20th century (other than short-lived decisions in two states over seventy-five years ago that focused on notices stamped on records purporting to prohibit a purchaser’s use of sound recordings on radio rather than a true performance right). It is only in very recent cases that courts in New York and California have recognized state law performance rights. However, they did so without considering Supremacy Clause preemption or how any state law performance rights might conflict with the federal statutory compulsory license regime established by the DPRA.Part II of the article explains the relevant legislative history and provisions of the DPRA governing the comprehensive licensing system. That statutory license and rules governing it were established to provide an efficient mechanism for digital Internet and satellite radio services to operate in compliance with their legal obligations. In Part III, the article explains Supremacy Clause doctrine and distinguishes the Supreme Court’s opinion in Goldstein v. California, which rejected a Supremacy Clause challenge to a state record piracy law in 1973. It demonstrates why neither the Court’s decision in Goldstein nor the language of the Copyright Act’s express preemption clause, which exempts state laws governing pre-1972 sound recordings from statutory preemption, precludes conflict preemption under the Supremacy Clause in the context of digital radio services that are subject to the federal compulsory license.Part IV of the article acknowledges that preemption of state law protection for digital performances of pre-1972 sound recordings raises equitable concerns, as it leaves some of this nation’s most treasured musical artists uncompensated for use of their works by Internet and satellite streaming services while the authors of more current works are compensated. However, given the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit.

Our word is our bond: how legal speech acts

Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice. Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech-the claims and responses that we make to one another in the name of the law-acts.

Immunity and the Public/Private Boundary in EU Employment Law

The doctrine of ‘immunity’, whether considered in terms of state immunity (the immunity of the state against claims by embassy employees), or diplomatic immunity (the immunity of diplomatic agents against claims by their own employed staff) acts to block employment law claims and therefore prevent access to justice for certain employment law groups. This article discusses recent developments in the doctrine of immunity in the context of the jurisdictional scope of EU (employment) law. In particular, it considers two recent trends in the development of the immunity doctrine. The first trend is the erosion of the ‘absolute’ nature of state immunity and an increased willingness at both EU and national (UK) levels to consider state immunity as just one factor in the ‘balancing’ exercise associated with human rights. The second trend considered in this article is that associated with diplomatic immunity. Whilst there have been signs of a relaxation of the strict operation of this doctrine in some cases, there is also evidence of a judicial reluctance to erode diplomatic immunity in others. The article discusses the arguments put forward in both (state and diplomatic immunity) cases, and particularly what they reveal about the current understanding of the jurisdictional scope and public/private divide in EU employment law.

Zero-Tolerance Comes to International Law

It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

SOCIAL SECURITY FOR TURKISH CITIZENS IN THE EUROPEAN UNION: The Scope of Association Council Decision EEC-Turkey No. 3/80 from the German Perspective

Social Rights o f Turks in Germany have been a political and legal issue since the beginning of the recruitment of Turkish workers by German companies in the years after 1960. The paperfocuses on the changes of judicial conflicts in different areas. At the beginning, questions of social protection for the aged were very much at the fore, as is evident in the disputes about the German-Turkish Social Security Agreement o f 1964 and its subsequent amendments (1969, 1974 and 1984) followed by the legal dispute at the Federal Constitutional Court about the refund ofpension scheme contributions. With the growing number of Turkish citizens living in Germany there has been a shift in the nature ofthe disputes: from pension-related social security claims to social law claims in national benefit law, particularly in the field offamily benefits. The main objective ofthese disputes was to achieve greatest possible equality of treatment in social security for Turkish citizens staying permanently in Germany. With reference to ACD 3/80, which is based on the EEC- Turkey Association Agreement of 1963, there have been a number of illuminating rulings ofthe European Court ofJustice which are investigated in this paper.

Administering the cost of death: Organisational perspectives on workers' compensation and common law claims following traumatic death at work in Australia

Quite apart from its devastating human and psychological effects, the death of a worker can have significant, life-changing effects on their families. For many affected families, workers' compensation entitlements represent the primary financial safeguard. Where the worker was self-employed, the family will generally be excluded from this remedy and have to take the more problematic option of claiming damages at common law. Despite the centrality of workers' compensation, little attention has been given to how effectively workers' compensation agencies address the needs of bereaved families or the views of other organisations involved, such as safety inspectors, unions, employers and victim advocates. Based on interviews with forty eight organisational representatives in five Australian states, this study examines how workers' compensation regimes deal with work-related death from the perspective of those organisations involved directly or indirectly in the process. The study highlighted a number of problems, including the exclusion of self-employed workers and dealing with ‘mixed families’.

Too Many Cooks in the Climate Change Kitchen: The Case for an Administrative Remedy for Damages Caused by Increased Greenhouse Gas Concentrations

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note then proposes a federal regulatory system of climate change compensation and explains several reasons why it is a preferable means of compensating climate change’s victims.

Von der res cogitans zum Relationengeflecht?

The concepts of autonomy and subjectivity are crucial not only for modern philosophy of law but also for its practice. Nevertheless, postmodern philosophy and postmodern theory of law claim to suspend these concepts, interpreting them as hypostatized narratives. The article argues that contrary to the postmodern reading, already the early modern concept of subjectivity is very fragile: It has no reality outside of a historical process in which the principle of subjectivity is connected to its external objective conditions of existence. These conditions are both theoretical and practical; the former are acquired by science, the latter by social, political, and legal history. This history has not been the pure realization of rationality. The development of the state of law from the state of nature, including the original appropriation and legalization of private property, has been a history of violence. This violence has not simply been overcome but is preserved in modern legal systems, too. It takes a materialistic social theory to tell this story in opposition to the narrative of modern law as a pure triumph of human freedom. This also entails that the subjectivity that stands at the end of this story is not only fragile but also fragmented.

State Law Claims: The Next Phase of Human Rights Litigation

State Law Claims: The Next Phase of Human Rights Litigation

Labour Law and ADR in Switzerland – Selected Topics Mediation, Arbitration and Collective Employment Contracts, Arbitrability of Labour Law Claims

The article presents maters of contemporary Labour Law and Alternative Dispute Resolution (ADR) in Switzerland, regulated – or “outlined” – for the first time only recently. Amongst main things the study refers to such matters as: arbitration and collective employment contracts, mediation, and arbitrability of international and domestic labour disputes. These are presented thoroughly and compared with conclusions, and future options.