Factual Disputes Research Articles

Introduction, Summary, Questions for the Future

Introduction, Summary, Questions for the Future

Legal geographies and ecological invisibility: The environmental myopia of evidence

AbstractThis study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function—obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court’s efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court’s geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.

Mission Impossible? Challenging Police Credibility in Suppression Motions

Suppression motions are the means by which defendants challenge the constitutionality of stops, searches, and seizures, and move the court to exclude illegally recovered evidence. However, defendants face insurmountable obstacles in challenging police credibility in these motions. Using 31 motions with factual disputes from a northeastern state, we dissect the types of defense challenges related to stops, searches, seizures, and arrests, as well as the prevalence and types of corroborating evidence presented by the defense. We find that most defense challenges to police credibility are not corroborated, and evidence of prior police misconduct is not presented. Furthermore, judges typically rule in favor of the police when adjudicating uncorroborated factual disputes between police officers and defendants. As a result, suppression motions generally fail to serve as an accountability structure for police conduct and rarely provide defendants with a viable remedy to address rights violations.

The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts

The federal courts have their own housekeeping rules in civil litigation: the Federal Rules of Civil Procedure. Under those rules, a plaintiff need not marshal evidence at the pleading stage, just a statement of facts showing her entitlement to relief. Discovery is generally available. Summary judgment only tests whether there are factual disputes necessitating a trial, and the trial court does not weigh any evidence. And there is generally no immediate right to appeal a denial of a dismissal motion. Those rules have governed federal court civil litigation for decades—without much fuss. Until now. Several states have enacted anti-SLAPP statutes to expeditiously dismiss free speech litigation. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” The most stringent anti-SLAPPs serve strong measures to achieve their ends: an accelerated dismissal motion soon after suit is filed; a complete stay of discovery; all the while, the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if a court denies the dismissal motion. By their design and effect, however, anti-SLAPP statutes operate differently than the Federal Rules of Civil Procedure. So far, the federal appellate courts have split on whether anti-SLAPPs (and their unique early dismissal regimes) can co-exist with the federal rules in diversity jurisdiction cases. The First and Ninth Circuits have embraced anti-SLAPP statutes, while the Second, Fifth, Tenth, Eleventh, and the D.C. Circuits—all have not. The U.S. Supreme Court has not yet weighed-in on this debate. This article adds four ideas to this complex area of law. First, we contend that Shady Grove Ortho. Ass’n v. Allstate Ins. Co., 559 U.S. 393 (2010) controls the anti-SLAPP applicability question. We contend that, properly understood, Shady Grove leaves no room for most anti-SLAPP statutes in federal court. Second, we delve into the preemption debate: do the Federal Rules of Civil Procedure preempt state civil procedural laws under preemption principles? Analyzing a recent six-justice ruling, we contend the U.S. Supreme Court thinks they do. Third, the article analyzes whether proponents of anti-SLAPPs are correct that the provision of attorney’s fees and the burden-shifting frameworks of anti-SLAPP laws makes them substantive for Erie purposes. We show that those claims are misplaced for most quintessential anti-SLAPPs, critiquing Ninth and Tenth Circuit anti-SLAPP jurisprudence. Finally, using Clifford v. Trump (tweet lawsuit) as a case study, we suggest a framework for principles of comity in inter-circuit splits about anti-SLAPPs.

Civic Learning When the Facts Are Politicized: How Values Shape Facts, and What to Do about It.

Social debates about highly technical topics are often driven by values yet dwell on facts. The debate about whether genetically modified organisms are acceptable in food, for example, focuses on causal claims about consumers' health or the environment, but the language and imagery surrounding it often point to underlying misgivings about the human relationship to nature or the use of science. In such cases, it is not always possible to resolve the factual disputes simply by articulating the facts better. Because of various features of human reasoning-cognitive biases and heuristics, the very nature of facts, and the central role of social trust in how people learn-facts cannot be fully disentangled from values. Three lessons can then be drawn. First, values sometimes need to be discussed at the outset of debate, before or while addressing facts. Second, factual issues can and should sometimes be framed in less politicized ways. Third, factual claims that have a limited evidentiary basis may nonetheless need to be aired and discussed.

The Michigan Supreme Court Diminishes the Right to Trial by Jury in Civil Cases

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right.

Reducing Group Alignment in Factual Disputes? The Limited Effects of Social Identity Interventions

Public divisions over contested science often arise due to individuals’ motivation to hold beliefs in line with others with whom they share a common social identity. To reduce the influence of threatened group identities, this research tests two potential interventions at the point of exposure to new information: self-affirmation and multiple identity salience manipulation. Experiments across dispute contexts—a toxic mining spill, a biofuels mandate, and gene editing technology—show limited support for either intervention reducing group alignment. Together, these results contribute to a growing body of work illuminating the limits of social identity interventions.

Science, Common Sense & Judicial Power in U.S. Courts

Courts routinely resolve factual disputes as an adjunct to settling legal controversies, and such fact-finding frequently involves scientific and technical evidence. It is important to ask what intellectual resources judges bring to this task. Instead of assessing how much science judges know or understand, this essay focuses on the judge's role in articulating and reinforcing prevailing cultural attitudes toward science. Background judicial assumptions matter at three significant junctures. First, judges maintain the lay-expert boundary by deciding whether an issue demands expert testimony at all. Second, judges act as epistemological gatekeepers, by determining which expert claims and ways of reasoning are entitled to deference and which are not. Third, judges decide how to classify and categorize things of uncertain ontological status as a prelude to applying legal rules. Each kind of decision offers a window into judicial common sense, a relatively neglected topic in studies of law and science.

Biologists' Consensus on 'When Life Begins'

Many Americans disagree on ‘When does a human’s life begin?’ because the question is subject to interpretive ambiguity arising from Hume’s is-ought problem. There are two distinct interpretations of the question: descriptive (i.e., ‘When is a fetus classified as a human?’) and normative (i.e., ‘When ought a fetus be worthy of ethical and legal consideration?’). To determine if one view is more prevalent today, 2,899 American adults were surveyed and asked to select the group most qualified to answer the question of when a human’s life begins. The majority selected biologists (81%), which suggested Americans primarily hold a descriptive view. Indeed, the majority justified their selection by describing biologists as objective scientists that can use their biological expertise to determine when a human's life begins. Academic biologists were recruited to participate in a study on their descriptive view of when life begins. A sample of 5,502 biologists from 1,058 academic institutions assessed statements representing the biological view ‘a human’s life begins at fertilization’. This view was used because previous polls and surveys suggest many Americans and medical experts hold this view. Each of the three statements representing that view was affirmed by a consensus of biologists (75-91%). The participants were separated into 60 groups and each statement was affirmed by a consensus of each group, including biologists that identified as very pro-choice (69-90%), very pro-life (92-97%), very liberal (70-91%), very conservative (94-96%), strong Democrats (74-91%), and strong Republicans (89-94%). Overall, 95% of all biologists affirmed the biological view that a human's life begins at fertilization (5212 out of 5502). Historically, the descriptive view on when life begins has dictated the normative view that drives America's abortion laws: (1) abortion was illegal at ‘quickening’ under 18th century common law, (2) abortion was illegal at ‘conception’ in state laws from the late 1800’s to the mid-1900’s, and (3) abortion is currently legal before ‘viability’ due to 20th century U.S. Supreme Court cases Roe v. Wade and Planned Parenthood v. Casey. While this article’s findings suggest a fetus is biologically classified as a human at fertilization, this descriptive view does not entail the normative view that fetuses deserve legal consideration throughout pregnancy. Contemporary ethical and legal concepts that motivate reproductive rights might cause Americans to disregard the descriptive view or disentangle it from the normative view. However, these findings can help Americans move past the factual dispute on when life begins and focus on the operative question of when a fetus deserves legal consideration.

Making Up Peoples? Conferralism about Nationality

AbstractI will apply Ásta’s conferralist account of sex and gender to nationality, and distinguish two different ways in which nationality is conferred – by institutions (legal nationality), and in social interactions (social nationality). I will then turn to the moral and political conflicts that arise where different understandings of nationality and different ways of conferring it overlap and collide. My main thesis is that these conflicts are never simply factual disputes about who and what belongs to a nation, they are always normative conflicts about who ought to belong. This, in turn, means that we cannot think about the ontology of nationality without thinking about what nationality ought to be, a conclusion that is well in line with the basic tenets of conferralism.

Boston's Massacre by Eric Hinderaker

Reviewed by: Boston's Massacre by Eric Hinderaker Emma Stapely (bio) Boston's Massacre. By Eric Hinderaker. (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2017. Pp. 358. $29.95 cloth) In standard reckonings of the American Revolutionary period, the "Boston Massacre"—a 1770 confrontation between British troops and Bostonians that left five men dead—often figures as a harbinger of things to come. Eric Hinderaker's Boston's Massacre approaches this event instead as an "irreducible mystery" swirling with contested interpretations in its own time and for long afterwards (p. 1). Examining it through its retrospective legacies, Hinderaker probes the ways in which meaning has been made of the Boston Massacre as the subject first of rivaling, tendentious narratives, and later, of disputed commemorative importance. [End Page 515] Boston's Massacre draws its analytic framework from memory studies, which posits a "three-stage interpretation of the way historical consciousness evolves" from event to narrative to memory (p. 7). The book's ten chapters unfold along this trajectory. Chapter one cuts closest to the event of the Boston Massacre by examining the testimony given in the shootings' immediate aftermath. Hinderaker is quick to observe, however, that while a clear fault line emerges in these accounts between the interests of town and Crown, the testimonies themselves are contradictory, and bring us no nearer to resolving the "factual disputes" they delineate (p. 23). Chapters two through four thus reach back to the Stamp Act crisis (1765) for context, touching on disputes over trade and currency reform (chapter two), attitudes toward crowd action (chapter three), and adjustments to British administration of imperial spaces (chapter four) in the years leading up to Boston's occupation. Chapters five and six cover the period of the occupation, while chapters seven and eight discuss the competing narratives surrounding the Massacre from the shootings to the trials. Finally, chapters nine and ten track the evolving memory of the Boston Massacre over time, touching on its commemoration in Boston during the Revolutionary War, the reclamation of Crispus Attucks by African Americans in the mid-nineteenth century, and the interpolation of the Massacre into histories of police brutality during the post-Civil Rights era. At once a meticulous documentary investigation and a reflection on the messy production of historical meaning, Boston's Massacre marks a refreshing break from the teleological imperatives and ideological explanations that long dominated Revolutionary historiography. In lieu of treating the Boston Massacre as an occasion for unifying narrative, Hinderaker underscores the disparity and contradiction at its heart, exposing how "a retrospective veneer of clarity" has been repeatedly applied to "an episode that was chaotic, poorly understood, and—in important ways—inexplicable" (p. 187). The result is a nuanced analysis which insists that the Boston Massacre has from the outset borne historical significance without being representative for [End Page 516] an emergent pan-colonial political consciousness. Indeed, as his title suggests, Hinderaker argues for the Boston Massacre as a strongly localized event whose influence outside Boston's immediate environs in the 1770s has been overstated. Yet his analysis also shows that Bostonians were neither unanimous nor consistent in their appraisal of the Massacre's import. For Hinderaker, the Massacre's resistance to interpretive consolidation is in many ways its keynote: "All of these controversies illustrate the usefulness of the Boston Massacre as a touchstone of American identity, and also the limits of its power to generate a consensus response" (p. 283). Emma Stapely EMMA STAPELY is an assistant professor of English at the University of California, Riverside. Copyright © 2018 Kentucky Historical Society

Konflikt polityczny na przykładzie sporu o Trybunał Konstytucyjny

Artykuł porusza problem procedur i specyfiki funkcjonowania nowoczesnego państwa demokratycznego oraz zagrożeń wynikających ze słabości demokracji mimo istnienia mechanizmów zabezpieczających ją przed nadużyciami. Problem ten jest rozpatrywany na przykładzie toczącego się konfliktu politycznego o Trybunał Konstytucyjny, instytucję o gwarantowanej konstytucyjnie niezależności. Konflikt ten pokazał, że w Polsce pojawiła się konieczność dyskusji i być może weryfikacji dotychczasowej filozofii i praktyki demokratycznej. Również to, że prawo i rządy prawa nie są wystarczającymi gwarantami stabilności ustroju demokratycznego, tym bardziej strażnikami praw i wolności obywatelskich. Ułomność systemu demokratycznego polega na tym, iż w imię właściwie pojętych zasad demokratycznych możliwe jest wypaczanie systemu przez tworzenie złego prawa. Działania uczestników demokracji, głównie decydentów, są lege artis, ale prowadzą do jej osłabiania. Demokratycznie urządzone społeczeństwo jest bez wątpienia autonomiczną wspólnotą i poliarchią, a przyjęło jako formę swojej organizacji demokratyczny system rządów. Demokracje są natomiast systemami wybitnie konfliktogennymi, choćby z tego powodu iż opierają się na zasadzie równości wszystkich poglądów i wszystkich podmiotów biorących udział w demokracji. Taka logika prowadzi w prostej konsekwencji do pojawienia się niezgodności i konfliktów, a nawet walk pomiędzy uczestnikami demokracji. Ta właściwość demokracji wymusiła stworzenie odpowiednich procedur rozstrzygania konfliktów, by zagwarantować w miarę optymalne wychodzenie z sytuacji kryzysowych, mogących w ostateczności doprowadzić nawet do upadku systemu demokratycznego. Przyjęto zatem prostą zasadę matematyczną, co prawda wtórną wobec wszystkich innych sposobów rozwiązywania konfliktów – zasadę większości. Jest ona regułą demokratycznej gry, bez której nie mogłyby istnieć rządy większości. Przedmiotem społecznego zainteresowania stał się ostatnio Trybunał Konstytucyjny, jedna z wielu instytucji demokratycznego państwa, która dotychczas nie wywoływała aż takich sporów merytorycznych i politycznych. Konflikt o Trybunał ma przede wszystkim charakter formalno-prawny, jest to techniczny spór, którego rozwiązanie powinno być podyktowane przez obwiązujące prawo, a jego rozstrzyganiem powinni się zająć eksperci z dziedziny prawa. Tak jednak nie jest. Konflikt ten przerodził się w konflikt o charakterze politycznym, stał się więc rzeczywistym konfliktem interesów, uzupełnionym dodatkowo o wartości. Zaktywizował ponadto społeczeństwo oraz środowisko prawnicze. Gdy rozważa się jeden z typów konfliktów, mianowicie polityczny, definiuje się go jako taki, którego przedmiotem jest władza, a podmiotami biorącymi w nim udział są te jednostki, grupy, instytucje, organizacje, które bezpośrednio mają wpływ na politykę lub oddziałują na nią za pośrednictwem kanałów politycznych. Praktyka demokratycznych państw świata zachodniego nie wskazuje drogi, na początku której stoi znak „zwycięzca bierze wszystko”. Praktykę tę wyznacza filozofia i teoria demokracji oraz kilkusetletni dorobek z takimi dogmatami, jak choćby monteskiuszowski trójpodział władz czy współczesna definicja demokracji, według której są to rządy większości gwarantujące prawa mniejszościom.

Focus: Worker Organising and Employer Speech

16 | International Union Rights | 24/3 FOCUS | FREEDOM OF EXPRESSION Worker Organising and Employer Speech Freedom of association lets workers organise trade unions and bargain collectively without interference by employers and governments. The International Labour Organisation (ILO) has applied this principle consistently by for nearly seven decades since its adoption of Convention 87 in 1948 and Convention 98 in 1949. However, led by US companies, the International Organisation of Employers has invoked ‘free speech’ arguments to justify American management-style interference with workers’ organising efforts in violation of ILO standards1. Under international standards, workers must be able to exercise freedom of association in ‘a climate free of violence, pressure, fear and threats of any kind’2. But the IOE asserts that a 2010 decision by the ILO’s Committee on Freedom of Association (CFA) in a case involving Delta Airlines allows them to campaign aggressively against workers’ organising using high-pressure, fear-mongering tactics that are common in the United States. Employers want to export US-style union-busting campaigns worldwide , with the imprimatur of the ILO. The Delta case The facts of the Delta case centre on an antiunion campaign in which management launched a ‘Shred it!’ crusade, telling flight attendants to tear up their ballots in a union representation election to prevent a majority from voting3. The labour law governing the airline sector in the US required the union to secure a majority vote among employees eligible to vote in the representation election. The union won a large majority among thousands of workers who cast a ballot, but the US labour board certified the ‘no union’ result because a slightly higher number of workers failed to vote. When the CFA declined to second-guess American authorities, the IOE pounced. The Committee merely said it was not in a position to adjudicate complex factual disputes and conflicting evidence. But employers have trumpeted the CFA’s restraint as an ILO blessing of Delta management’s tactics, saying that the Committee’s decision ‘was an endorsement of the approach under US law to determine whether employer speech amounts to interference’4. The IOE’s interpretation is misleading and selfserving . In its analysis, the Committee explained its long-standing position that: ‘While having stressed the importance which it attaches to freedom of expression as a fundamental corollary to freedom of association and the exercise of trade union rights on numerous occasions, the Committee also considers that they must not become competing rights, one aimed at eliminating the other…’5. In further clarification of the decision, the ILO Office stated: ‘The complementary nature of these two freedoms [expression and association] as mutually reinforcing has long been established principle... Care should be taken within the national context…to ensure that the former freedom does not interfere in practice with the free choice of workers in relation to their right to organise’6. Despite this reaffirmation of long-settled principles, the IOE cites the Delta case to argue that US law is now the international norm, allowing employers to openly and aggressively interfere with workers’ organising efforts through sustained, daunting campaigns of psychological pressure and thinly-veiled threats aimed at blocking trade union formation. This is entirely contrary to the ILO’s noninterference standard. The CFA did not endorse the anti-union campaign ‘speech exemplified by Delta’s conduct. Instead, it said: ‘The Committee expresses a general concern at the use of “shred it” buttons [and] considers that the active participation by an employer in a way that interferes in any way with an employee exercising his or her free choice would be a violation of freedom of association and disrespect for workers’ fundamental right to organise…’7. The CFA adopted a report ‘in which the Committee requests to be kept informed of developments’, a formulation signalling on-going concern about the case’s implications for freedom of association. Further underscoring its concern, the CFA concluded its decision with a recommendation formulated as follows: ‘The Committee draws the Government’s attention to the importance of providing for specific and effective protection in relation to the right to organise and the selection of a collective bargaining agent and requests it to review the current application of...

Escaping from Freedom? The Dilemma of an Improved ISDS Mechanism

This article is based on the EFILA’S ‘Inaugural’ Annual Lecture 2015. ISDS in its current international arbitration format has attracted criticism. In response, the EU proposal for ISDS in the TTIP consists of a two-tiered court system, comprising an appeal mechanism empowered to review first-instance decisions on both factual and legal grounds and, the EU says, paving the way for a “multilateral investment court”. The Lecture expressed surprise at the EU proposal of a court mechanism given the CJEU’S unambiguous, historical unease with other similar, parallel international court systems. The Lecture proposed a third way, aimed at addressing these concerns, whereby a Committee – stroke – Interpretive Body, informed by the intentions of the TTIP Parties, would take over the development of TTIP jurisprudence in a more linear and consistent manner, with a longer-term view, whilst ad hoc arbitration tribunals in their current form would focus on the settlement of the discrete factual dispute. Since the Lecture was delivered, the ICS was adopted in both the EU–Vietnam FTA and (in part) the EU–Canada CETA. This contribution ponders how the ICS might work in practice, sit alongside current ISDS tribunals, and contribute to development and jurisprudence in the field.

Restoring the Fact/Law Distinction in Patent Claim Construction

The Supreme Court’s 2015 decision in Teva Pharmaceuticals v. Sandoz brings the standard of review of patent construction rulings into line with foundational juridical principles of appellate review, resolving one of the most divisive issues in patent litigation over the past two decades. This article shows that the decision's efficacy depends critically upon how district courts adapt their case management. District judges will need to implement effective procedures for ferreting out subsidiary factual disputes bearing on claim construction, scour the intrinsic evidence for contraindications, develop a sufficient evidentiary record for resolving the dispute, and explain their analysis. The article also explores the interplay of claim construction and claim indefiniteness.

CONSTRUCTION GUARANTEES: FINALLY CLOSING THE DOOR ON EXTRANEOUS DEFENCES Coface South Africa Insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association 2014 (2) SA 382 (SCA)

The issuing of performance bonds or construction guarantees in terms of a building contract may hold important consequences for the parties to a construction guarantee. Recently construction guarantees have received much attention from our courts and some of these cases even proceeding to the Supreme Court of Appeal. There may be various reasons for this sudden escalation in litigation with construction guarantees as the subject matter. One of the reasons may be due to numerous major construction projects that have been undertaken in the last few years in South Africa. Notable examples of these major construction projects include the building of stadia for the 2010 FIFA Soccer World Cup, the Gautrian Project, and the Gauteng Freeway Improvement Project. One of the aspects of construction guarantees that our courts has had to deal with was the nature of construction guarantees. The nature of construction guarantees is not only of academic interest but also has very important practical implications. Building, engineering and construction contracts such as the family of New Engineering Contracts and The Joint Building Contracts Committee agreements make provision for the employer or the party commissioning the construction works (“the works”’) to place a contractual obligation on the contractor to furnish a construction guarantee. Shortly after the award of the construction contract (“the underlying contract”), the contractor will instruct its insurer or banker to issue such a construction guarantee to the benefit of the employer. From the employer’s perspective, the construction guarantee serves a dual purpose: firstly, the willingness of a financial institution or insurer to issue such a construction guarantee is, to a degree, an indication of the contractor’s financial welfare. Secondly, in the event of the contractor's default, the construction guarantee enables the employer to gain immediateaccess to funds to properly complete the works in terms of the underlying contract. A contractual relationship is created by the construction guarantee between the employer and the issuer thereof. When properly drafted, a construction guarantee entitles an employer to demand payment from the issuer unconditionally upon the occurrence of a specific event. The liability of the issuer of the construction guarantee is subject only to the employer complying with the terms and conditions contained in the construction guarantee. Normally, the employer is required to issue a certificate in terms of which it is confirmed that the contractor is in default of the building contract or underlying contract and therefore the employer demands payment in terms of the construction guarantee. The main advantage that a construction guarantee offers to an employer is when enforcing the construction guarantee, the issuer thereof may not raise defences of an extraneous nature. This prevents protracted litigation over complex factual disputes. Fraud in such circumstances that makes it obvious is the only defence the issuer of a construction guarantee may raise to avoid liability under the construction guarantee. However, the Supreme Court of Appeal in Dormell Properties 282 CC v Renasa Insurance Co Ltd reopened again the possibility of raising extraneous defences. The Dormell judgment caused much uncertainty on whether extraneous defences may be raised to avoid liability in terms of a construction guarantee. The confusion regarding the true legal position was further exacerbated by the fact that in subsequent cases involving construction guarantees, the Supreme Court of Appeal chose not to overturn the Dormell case but rather to distinguish the facts of subsequent cases from Dormell. This case note therefore deals with the latest reported judgment on construction guarantees delivered by the Supreme Court of Appeal in Coface South Africa insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association (2014 (2) SA 382 (SCA)). This case is of particular interest because the Supreme Court of Appeal unequivocally held that its judgment in Dormell was clearly wrong. This judgment has now once and for all put the question of whether or not extraneous defences may be raised in order to avoid liability under a construction guarantee to bed. The court also once again confirmed that the English doctrine of consideration does not form part of the South African law of contract.

Effects of Journalistic Adjudication on Factual Beliefs, News Evaluations, Information Seeking, and Epistemic Political Efficacy

A frequent critique of contemporary journalism is that journalists rarely adjudicate factual disputes when covering politics; however, very little research has been done on the effects of such passive journalism on audiences. This study tests effects of active adjudication versus “he said/she said” journalism on a variety of outcomes, finding that adjudication can correct factual beliefs, increase perceived news quality, satisfy perceived informational needs, and increase the likelihood of future news use. However, for readers who were less interested in the issues under dispute, adjudication also reduced epistemic political efficacy, which is confidence in one's ability to find the truth in politics.

Taming the Mongrel: Aligning Appellate Review of Claim Construction with its Evidentiary Character in Teva v. Sandoz

In its seminal Markman decision, the Supreme Court sought to usher in a more effective, transparent patent litigation regime through its ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In the aftermath of this decision, the Federal Circuit adhered to its prior holding that claim construction is a “purely legal issue” subject to plenary de novo review, downplaying the Supreme Court’s more nuanced description of claim construction as a “mongrel practice” merely “within the province of the court.” Over nearly two decades of experience in the post-Markman era, it has become apparent that the Federal Circuit’s adherence to its plenary de novo appellate review standard has frustrated district courts’ distinctive capabilities to apprehend and resolve the factual disputes inherent in claim construction determinations, undermined the transparency of the claim construction process, discouraged detailed and transparent explanations of claim construction reasoning, and produced unusual and at times alarming levels of appellate reversals. These effects have cast doubt on the predictability of patent litigation, discouraged settlements, delayed resolution of patent disputes, and run up the overall costs of patent litigation. Drawing on the Supreme Court’s decision, this brief advocates a balanced, structurally sound, legally appropriate, hybrid standard of appellate review that would promote more accurate and efficient patent dispute resolution. Factual determinations underlying claim construction rulings should be subject to the “clearly erroneous” standard of review, while the Federal Circuit should retain de novo review over the ultimate claim construction decision. In this manner, district court judges, in their capacity as fact-finders, could better surmount the distinctive challenges posed by the technical, mixed fact/law controversies inherent in patent claim construction.

On the Very Idea of a Verbal Dispute

I argue that Quineans who are sceptical about the analytic/synthetic distinction should be equally sceptical about the distinction between verbal and factual disputes. I develop an objection to the distinction between verbal and factual disputes, derived from objections to the analytic/synthetic distinction. I then explain what the resulting scepticism consists in. Ultimately, such sceptics should agree that there is a distinction between verbal and factual disputes, but think that it cannot perform certain philosophical tasks.

Disagreeing about how to disagree

David Enoch’s excellent recent book, Taking Morality Seriously, provides a subtle, highly innovative, and stimulating set of arguments for ‘‘Robust Realism’’: the view that there are normative truths and facts, that such facts exist over and above any set of naturalistic facts, and that our claims about them ‘‘amount not just to an expression of any practical attitude, but to a representation of these normative truths and facts.’’ In this paper, we focus on the arguments Enoch gives to help along such a view in Chap. 2 of his book. Enoch’s arguments there are sometimes so complex and nuanced that we think the best way to convey his view is to initially present it in a very streamlined and simplified manner. Then we will introduce some of the complications that Enoch notes. After that, we will try to explain why we do not yet find Enoch’s arguments in Chap. 2 fully convincing. So, simplifying significantly, Enoch argues in Chap. 2 that it is typically normatively appropriate, when one is in a factual dispute with someone, to not compromise with that person but rather to stand one’s ground. Suppose I know the way to grandmother’s house better than you do. I am correct about how to get there and you are not, and I am also more justified in my opinion than you are. In such a case it seems that I ought not to (or am permitted not to) opt for a compromise where you decide this case and I decide the next, or where we flip a coin to decide which road we will take. But when we come to disputes concerning mere preferences, where there is no fact of the matter that we are disagreeing about, it is typically normatively