Examines Case Law Research Articles

Human Rights as a Regulatory Tool for ‘Just Transition’ in Europe (and Beyond)

In the context of increasing human rights litigation on climate change, this article examines the potential to include labour-related concerns regarding just transitions. Taking the European Convention on Human Rights (ECHR) as a case study, the argument is made that there is potential to do so, not only utilizing Articles 2 and 8, but also Articles 10 and 11. The scope of the European Court of Human Rights (ECtHR) case law is examined in this respect. The article examines case law which is indicative of the potential application of Articles 2 and 8 to work and the environment, alongside the prospects of combining claims under Articles 10 and 11. Emerging jurisprudence on Articles 10 and 11 may be significant, as recent study of ‘human rights experimentalism’ indicates, since efficacious engagement in human rights litigation requires collective voice from those most affected, both in terms of crafting claims and implementing judgments. Their recognition in the context of combined environmental and labour concerns would be an important step towards transformational structural change relating to ‘just transition’ Human Rights, Climate Change, Just Transition, European Convention on Human Rights (ECHR), European Court of Human Rights (ECtHR), Freedom of Association, Worker Status, Human Rights Experimentalism

Preserving Immunity for Reporters of Medical Child Abuse.

All American jurisdictions have laws protecting children from abuse and neglect. Mandated reporters, including health professionals, whether their suspicions ultimately are substantiated or unfounded, are entitled to immunity when their reports are entered in good faith. When harm takes the form of medical child abuse (MCA, also known as Munchausen syndrome by proxy or factitious disorder imposed on another), its origin is ambiguous, at least initially. Questions arise as to whether the caregiver intended to deceive medical professionals and if the condition improved when the child was separated from the caregiver. Clinicians may have an obligation to report MCA in difficult-to-diagnose cases or those where parents press for hospitalizations and procedures. Substantiated cases may lead to removal of children from homes and criminal prosecution of parents. This can result in backlash against the reporter by the parents, with claims of malpractice, official misconduct, intentional harm, fraud or conspiracy to commit fraud, defamation (libel or slander), or all of the above. This article examines case law regarding alleged departures from good-faith reporting of MCA and explores potential limitations to immunity provided to mandated reporters. The findings include no significant instances in which the immunity shield for good-faith reporting was pierced.

The role of surveyors under the Party Wall etc. Act 1996

The Party Wall etc. Act 1996 (the Act) is a unique piece of legislation, as it applies a dispute resolution process for works affecting neighbouring owners that is administered by surveyors and not by the courts or through formal arbitration procedures. This gives surveyors appointed under the Act a statutory role and it is therefore important that surveyors properly understand the extent of that role, the responsibilities that come with it and the limits of their jurisdiction. This paper examines case law to explain key issues of the surveyor’s role in detail. Much of that case law is from the County Court, which means that it is not binding on other courts, but as many of those judgments make reference to decisions of higher courts, they give valuable guidance to surveyors about how the courts understand the surveyor’s role. Many of the decisions result from courts deciding that actions of a surveyor were incorrect, which shows the importance of not taking for granted that the regular practice of other surveyors is necessarily correct. This article focuses on the role of surveyors when each owner appoints their own surveyor. Many of the points will of course also apply to agreed surveyors.

Assessing endangerment of archaeological heritage in Latvia: legal framework and socio-economic aspects

The aim of the article is to reflect the currently existing regulatory environment for damages caused to archaeological sites by illegal human intervention and its implementation by law enforcement sector and the courts in Latvia. The article is mostly focused on legal and socio-economic consequences of endangerment of archaeological sites. It analyses liability aspects, examines case law, determines the existing challenges and proposes basis for improvement in administrative and legal procedures. Methods applied in the research are literature review, legal framework and documentary analysis, statistical and case law analysis. The results of the research could be used inter alia for the purposes of criminal, civil and administrative proceedings, amending legal regulation and damage assessment mechanisms.

The Islamic Law of Marriage and Inheritance in Kenya

AbstractArticle 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Sticks and Stones May Break Bones, But Words Can Get You Fired: An Inequitable Distinction and The Need for Updated Constitutional Interpretation

Although the ways that citizens communicate and exercise their freedom of speech have changed, constitutional interpretations surrounding that communication and speech remain the same. In 1883, in the decision of the Civil Rights Cases: United States v. Stanley, the Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause restrains government actors only. So, if a citizen who expresses an unpopular opinion on social media is a private employee, as opposed to a government (public) employee, the private employee can be terminated with virtually no redress. Cases involving public employers and employees dominant Supreme Court rulings, while cases involving private employers and employees go unnoticed. Although the latter types of cases may be found, they do not reach the level of being binding on all because the interpretation of the Constitution and legislation does not allow it. This Article examines case law, the history of the interpretation of the Fourteenth Amendment, and the reasoning of the Court when ruling on cases that have solidified the distinction between public and private employees’ free speech. The author examines laws, legislation, and social media policies that also allow for this distinction. The author concludes that, despite the historical interpretation, as communication media change, so should the laws that surround them to allow private employees the same protection and redress as public employees.

Legal Ignorance in the Netherlands

This contribution considers the role of legal ignorance in Dutch private law. After a short description of the debate on legal ignorance by Dutch scholars, the article focuses on three areas: contract law, tort law and limitation periods. With respect to contract law, this article shows that courts allow for the nullification of a contract due to mistake of law in special circumstances: when the mistaken party was a foreigner or illiterate or when the other party was an expert who gave misinformation about relevant legal provisions. In the field of tort law, the article first examines case law in which public bodies were held liable for unforeseeable case law by the highest administrative court. It is argued that these decisions should be viewed as a manifestation of the fact that court decisions on liability have retroactive effect. Second, in relation to survival of claims for non-pecuniary losses, it is submitted that the Supreme Court seems to interpret notifications by relatives of the deceased victim generously in order to protect them against their legal ignorance. The article then examines case law by the Supreme Court that holds that legal ignorance does not preclude the commencement of prescription periods. However, when wrongful (legal) advice results in a loss, the Supreme Court ruled that the prescription period governing the client’s claim does not start running immediately because he will initially rely on the correctness of the advice. Regarding expiration periods and legal ignorance, the Supreme Courts seems to make a distinction between contractual and statutory expiration periods. The article concludes by considering the prospects for legal development in this area. It is argued the question who should bear the costs of legal ignorance is a matter of risk distribution. Where the risk lies, should depend on the weighing of various factors by the courts, notably the nature of the respective parties and of the interests involved and whether or not the legally ignorant person can claim compensation from a third party such as an attorney or an insurer.

A study on the personal data processing and the UCPD focused on Italy, Germany and the UK

Manipulation with Big Data Analytics allows commercial exploitation of individuals based on unfair commercial practices. Consequently, the concepts of consumer protection are essential in the data-driven economy and a central issue for effective safety for individuals in the Big Data Age. Although the fields of consumer protection and data protection in the European Union (EU) have developed separately, there is an unambiguous relationship between them. While the GDPR plays a crucial role in an individual’s data protection in a case of personal data processing, Directive 2005/29/EC (UCPD) plays an essential role in regulating an individual’s protection from the unfair commercial practice when it comes to personal data processing. A vital aspect of the UCPD is the enforcement of issues related to consumer privacy. However, a much-debated question is whether the UCPD is fully effective or not when it comes to personal data processing. This paper examines case law examples on WhatsApp and Facebook in Italy, Germany and the United Kingdom. This paper also aims to come to a conclusion on the issue of the applicability of the rules on unfair commercial practice when it comes to data processing.

Informed consent to clinical research in India: A private law remedy

There is a well-established common law doctrine for ascertaining information disclosure in informed consent claims within the treatment context that governs the doctor–patient relationship. But there is no such doctrine in clinical research governing the researcher–participant relationship in India. India, however, is not exceptional in this regard. Common law countries like the United States and Canada at most have sparse, non-systematised, criteria for such cases; arguably, a doctrine for research is at its nascent stage. But the adequacy of the existing criteria for settling informed consent claims in research has hardly ever been discussed. Furthermore, a specific discussion on the applicability of this ‘nascent doctrine’ to India is non-existent. This article discusses both. The article examines case law from India and other common law jurisdictions that hint at developments in this area. It suggests that Indian courts need to move abreast with other jurisdictions to better protect India’s patients and research participants.

Oppression or Derivative? Greater Clarity Through the Requirement for Direct Harm

In this article, the author seeks to discern the limits of the broadly scoped oppression action. The author first discusses the oppression and derivative actions and their purposes, and then argues that the oppression provision does not embrace derivative harm. Using the recent Supreme Court of Canada decision in Brunette, the author reinforces the requirement of direct injury distinct from that suffered by the corporation, when bringing a personal action. The author then examines case law in pursuit of clarity about what constitutes direct harm and whether it is difficult to demonstrate. The author concludes by recommending that the Supreme Court clarify the distinction between oppression and derivative actions by integrating the direct harm requirement into the test for oppression.

‘Unpackaging’ Trademark Through Tobacco Regulations

Minimum requirements of the WHO’s Framework Convention on Tobacco Control and its Guidelines has required the Member States to raise concerns related to public health by regulating advertisement and marketing, and also leaving scope for introducing more stringent measures. This initiated several discussions over the issues concerning effect of such legislation’s new labeling requirements (plain packaging) on the intellectual property rights (trademark rights) of the tobacco manufacturers. The justifications for the new limitations are considered from a broader global perspective and from an Intellectual Property law one. This paper examines case law, legislative provisions and surveys approved by WHO, along with reports made post implementation of plain packaging in Australia, and other relevant available data and information. It further aims to reflect on the character of protection, arguing that there is neither deprivation nor expropriation of property, but a mere control of use and that the right conferred upon registration of a mark is iusexcludentialios and not a right to use. It also discusses on how plain packaging is oppressive towards the interests of the trademark proprietors and is not the most effective for attaining the public health objective, while drawing upon sociological and economical research, and how it possesses the risk of increase of illicit trade and counterfeits.

Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the “intersectionality” section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered “disordered” and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work.

The role of freedom of expression in the construction of historical memory

AbstractThe construction of historical memory is closely linked to the guarantees provided by the right to freedom of expression. This right ensures that victims and society in general are able to speak about the past, narrate their own stories, and call for and influence social discussion and institutional reform. Mechanisms such as access to State archives, participation in the media, journalistic coverage of armed conflicts and the free flow of stories, artistic endeavours, criticisms and condemnations empower victims and the rest of society in the construction of alternative narratives and independent memories. This article examines case law of the Inter-American System of Human Rights that elaborates on freedom of expression, and considers its importance for the construction of historical memory. It also touches upon some decisions taken by the Colombian high courts, relevant to a context in which mechanisms of transitional justice have recently been implemented.

Treaty Shopping and Denial of Benefits Clauses - What Investors Should Know

This Article examines the concept of treaty shopping by international investors to find a preferred jurisdiction in which to incorporate for best protections under bilateral investment treaties or free trade agreements. It examines case law that sets out the tests for when treaty shopping is allowable and when it runs afoul of the rules. The article also examines the concept of denial of benefits under bilateral investment treaties and the Energy Charter Treaty to determine when and how a host state can deny benefits of treaty protection of investments to an investor. It examines the meaning of the term “substantial business activities” in connection with denial of benefits clauses.

What Is a Social Group in the Eyes of the Law? Knowledge Work in Refugee-Status Determination

This article explores the settling and unsettling of legal concepts in relation to refugee-status determination. To gain admission to the United States, asylum seekers are required to demonstrate a well-founded fear of persecution on the basis of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Accordingly, many political asylum claims turn on the interpretation of “particular social group.” This article examines case law disputes in the federal courts of appeals over the meaning of that phrase and describes how statutory interpretation by judges has contributed to the persistence of such disputes over several decades since the passage of the 1980 Refugee Act. My analysis reveals the tensions between different forms of rationality at play in judicial statutory interpretation and applies the concept of legal settling to a new empirical domain.

Litigation in Obstetrical Sonography: Lessons Learned From 100 Consecutive Cases in the Public Library of Law [7P

INTRODUCTION: Ultrasound is an essential technology in the practice of obstetrics and gynecology. Instruction in point-of-care obstetrical imaging is necessary for both resident and medical student curriculum. Few articles have examined case law in obstetrical sonography, with the last published case series reported in 2003. METHODS: A search was conducted in the US Public Library of Law for cases regarding obstetrical imaging. Of approximately 270 consecutive cases reviewed, one hundred were determined to be directly related to obstetrical imaging. These were extracted for location, year, causation, legal content, and resolution. Group comparisons for continuous variables were made using the Student's t test. Categorical variables were compared with Fisher's exact tests. RESULTS: Cases occurred from 1988 to 2016, with no measurable increase in frequency in the last decade. The most common states were New York, New Jersey and California. The most commonly represented ACOG districts were districts II, VI, IV, and VI. Four major categories of causation were elicited. Of missed diagnosis, 20% were due to inaccurate fetal biometry, 10% missed ectopic pregnancy, and the remainder were missed diagnoses of fetal abnormalities. Three out of six sonographer-related cases involved sexual assault. A subset of cases specifically related to wrongful life, wrongful birth, and wrongful death were brought in 20% of cases. CONCLUSION: Modern curriculum must stress meticulous fetal biometry, specific communication techniques, anatomic integrity, and diagnostic criteria to be met for ectopic gestations. The concepts of “wrongful life”, “wrongful birth” and “wrongful death” should be included in ongoing resident and student education.

Religious Freedom of Members of Old and New Minorities: A Double Comparison

Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.

The Alleged Case of Golden Shares in Montenegro: A Candidate Country’s Experience as an Incentive for Including Acta Jure Gestionis within the Range of Restrictions on Free Movement of Capital

The aim of this article is to demonstrate the potential of certain acta jure gestionis to restrict the free movement of capital by way of establishing so-called “golden shares” (i.e., special rights). To that end, a Montenegrin case study is used, since it displays that a privatization contract and the subsequent shareholder’s agreement – typically jure gestionis acts – may be utilized to perpetuate a state’s influence over a privatized company in a manner equally efficient as that of certain jure imperii acts, which were found by the cjeu to represent impermissible restrictions on the free movement of capital. Finally, in view of the Montenegrin case study and the examined case law, arguments are offered and the conclusion is made that the cjeu should essentially adopt the same approach with regard to each of the two types of legal instruments utilized by states to secure their influence over privatized companies.

We Wanted More Arne Jacobsen Chairs but All We Got Was Boxes – Experiences from the Protection of Designs in Scandinavia from 1970 till the Directive

The Nordic design laws, which were enacted in the 1970s, may be viewed as a forerunner for the EU system. This article sets the scene for the evolution of the Nordic Design Acts. Furthermore, it examines case law and registration practices to test how functional designs were de facto protected by the Design Act considering also the development in copyright law. It is concluded that the designers, thanks to whom there was “Danish Design”, made no or only marginal use of the registered designs system that had been put in place for them. The reasons for this failure are discussed and attributed to a combination of legal and cultural factors. Finally, the article reflects on the lessons learned and their implications for the on-going EU design law reform.

The Law relating to syndicated loan agreements and its application in commercial practice

The Law relating to syndicated loan agreements and its application in commercial practice