Future Litigation Research Articles

Future Generations Litigation and Transformative Changes in Environmental Governance

Future Generations Litigation and Transformative Changes in Environmental Governance

Future Generations in Climate Litigation: Early Whispers of an Intergenerational Law?

Abstract The “migration” of Future Generations from a moral to a judicial context represents a captivating development in contemporary legal discourse. Recent years have seen a surge in courts across various nations addressing the intersection of future generations and climate litigation. This nexus, far from being coincidental or sporadic, epitomizes a deeper societal and legal dilemma that necessitates a nuanced articulation for effective resolution. The main objective of this Article is to provide preliminary insights for contextualizing this legal evolution. Initially, the Article delineates the journey towards social legitimacy of climate science. Subsequently, it examines the impact of this social legitimation on judicial rulings, particularly observing an emerging trend in climate litigation to expand the temporal scope of legal relevance. The Article culminates in an exploration of the possible interplay between the legal significance of future generations and the extension of the law’s temporal horizon. This conjectural postulation is substantiated through select historical precedents.

DOES PARLIAMENTARY INTERVENTION MODEL OF JUDGES’ REMOVAL AFFECT THE INDEPENDENCE OF THE JUDICIARY? – A REVISIT TO THE 16TH AMENDMENT CASE

The Constitution Sixteenth Amendment revived the original provision in vesting the power of removal of Judges of the Supreme Court upon Parliament. The Appellate Division, however, declared the Amendment ultra vires in the Constitution 16th Amendment Case. The Government submitted, inter alia, that the Amendment ensured accountability of the Judges to the people. This article argues that the parliamentary removal mechanism of Judges furthers the system of ‘checks and balances’ and not the accountability of the Judges. The article thus holds that due to the faulty argument of the Government, the whole attention of the Court was misdirected towards ensuring accountability of the Judges instead of maintaining the balance of power between Parliament and Judiciary. The article, therefore, suggests an alternative interpretation of the Constitution Sixteenth Amendment revolving mainly around the idea of ‘checks and balances’. The alternative interpretation if properly presented by the Government, perhaps the Court would have put under more compulsion to save the Amendment following this principle of statutory interpretation: Between two interpretations, save the Act. The article has in view two main objectives: first, it would bring it to the attention of both the Bar and the Bench that they should take adequate care of venturing all the possible alternative interpretations of a constitutional provision especially when they are deciding the validity of a constitutional amendment; second, the knowledge it develops might prove beneficial in any future litigation of the Bangladesh constitutional law on issues concerning ‘separation of powers’ and ‘checks and balances’.

Revisiting the Scope of Section 35ABB of the Income Tax Act

The Supreme Court (SC), on 16 October 2023, observed that licence fees paid by telecom companies under the New Telecom Policy 1999 would be a capital expenditure under section 35ABB of the Income Tax Act, 1961. Quashing the judgments of high courts of Delhi, Bombay and Karnataka, the SC ruled that the nomenclature and mode of payment have no relevance as such payment relates to the licence fee, an integral part of the licence agreement to remain in the business. It ruled under the New Telecom Policy 1999 that there is no basis to reclassify the variable portion of the licence fee as revenue expenditure; instead, both fixed and variable fees are homogeneous and are capital expenditures. Moreover, a single transaction cannot be artificially bifurcated into capital and revenue components by mere consideration of payment mode, posing a challenge for the sector already confronting significant financial stress. However, the Telecommunication Act enacted in December 2023 attempts to address multiple challenges of the sector, but grey areas still need to be addressed, which could lead to future litigation. Against those backdrops, the study attempts to assess the impact of the ruling connecting with the New Act on the sector.

Phone numbers, emojis and GIF files as electronic signatures

Due to constant technological progress, the conclusion of electronic contracts has become common. Thus, electronic signatures are used to identify the parties and to express their agreement regarding the content of the contract. The use of these electronic signatures led to emojis being used in electronic contracts. The judicial cases in which these types of electronic signatures are apparently used, must be analyzed, as it is necessary to determine the probative power of the electronic document that contains this specific signature. We would also like to mention that a theoretical analysis of GIF files and phone numbers as electronic signatures is necessary in order to prevent certain legal interpretation problems that might arise in future litigation.

Implications of the Mississippi v. Tennessee Supreme Court Decision for Interstate Groundwater Management.

Groundwater allocation is rapidly becoming a contentious water resource management problem around the world. It is anticipated that the effects of climate change would further aggravate this problem. Conflicts over the distribution of freshwater are expected to increase as stakeholders want to access more groundwater to meet their growing demands. In the United States, water conflicts are settled through a litigation process. Water litigations can be expensive, protracted, and fraught with complex legal and technical difficulties. A landmark groundwater case involving Tennessee (TN) and Mississippi (MS) was recently litigated in the Supreme Court of the United States (SCOTUS). In this case, MS sued TN for stealing their groundwater and SCOTUS unanimously ruled that the water contained in the aquifer that naturally crosses the border between TN and MS is subject to equitable apportionment. This decision has significant ramifications for groundwater management as it established a precedent for resolving future interstate groundwater litigations. Although the Court has previously applied the legal doctrine of equitable apportionment to settle disputes involving surface water use, this is the first instance in which the doctrine has been applied to resolve an interstate groundwater dispute. Therefore, currently, there are little or no guidelines available for equitably distributing groundwater resources between two states. The objective of this article is to examine this historic legal dispute to fully understand the scientific justification for the judicial stances taken by the plaintiff and defendants, and the legal reasoning for the final verdict. We also discuss the challenges this ruling presents for managing interstate groundwater resources.

Analysis of potential future litigation between Japan and China on the issue of a total ban on aquatic products after Fukushima water release

Analysis of potential future litigation between Japan and China on the issue of a total ban on aquatic products after Fukushima water release

What Might Future Rights-Based Climate Litigation Look Like in Indonesia? A Preliminary Analysis

Abstract While there has been some climate litigations in Indonesia, a rights-based climate case has yet to emerge. On the other hand, several rights-based environmental cases have seen the light of day before the Indonesian courts, although with more failures than successes. This note explores the prospects and challenges for future rights-based climate litigation in Indonesia by reflecting on previous climate and rights-based environmental cases. At the same time, with reference to Urgenda, this note recognizes a growing global discourse on transnational climate litigation, unveiling the possibility of replicating successful climate litigation strategies from one jurisdiction to another. This note inquires into what potential plaintiffs can learn from Urgenda and previous Indonesian climate and rights-based environmental litigation to strategize future rights-based climate lawsuits before Indonesian courts.

A Scanner Darkly: Copyright Liability and Exceptions in Artificial Intelligence Inputs and Outputs

Abstract This article delves into the legal issues surrounding the use of copyrighted works in training artificial intelligence (AI). It examines two critical questions: firstly, whether accessing and analysing copyrighted works for AI training constitutes copyright infringement; and secondly, whether outputs generated by AI from these inputs infringe on copyright. The primary focus is on the United Kingdom’s jurisdiction, with comparative analyses from EU law and a few US cases. The article aims to bring clarity to these multifaceted legal issues by thoroughly exploring the technicalities of machine learning and its implications for ongoing and future litigation. The hypothesis suggests that most inputs may fall under existing exceptions and limitations, but the outputs’ legality may depend on individual case specifics. The conclusion reflects on the inevitable legal challenges that accompany technological advances, as happened in the past with file sharing and the early World Wide Web. The article highlights the current stage of AI technology and law, suggesting that legal precedents or legislative actions might eventually settle disputes. It also emphasizes the importance of finding technological solutions – like metadata standards or proactive initiatives – to balance copyright holders’ rights with AI innovation. The article concludes by acknowledging the irreversible emergence of AI in our lives and the legal system’s need to adapt, offering equitable solutions to copyright holders while fostering technological advancement.

Eyecare practitioner perspectives and attitudes towards myopia and myopia management in the UK

ObjectiveMany children with progressive myopia are still prescribed single-vision correction. An investigation into UK eyecare practitioners’ (ECPs) perceptions of myopia management was carried out to ascertain factors which may be...

Copyright Infringement of Photographs on E-commerce Platforms

In the rapidly evolving landscape of e-commerce, protecting intellectual property rights, particularly in the realm of photography, has become increasingly vital. This article delves into the complex issue of copyright infringement on e-commerce platforms, with a specific focus on the concept of intermediary liability. While e-commerce platforms offer unparalleled convenience and global reach to consumers, they also present formidable challenges in upholding the rights of content creators, especially photographers. The article uniquely emphasizes the concept of intermediary liability in the context of e-commerce platforms. This focus is particularly relevant given the widespread use of these platforms in today's digital marketplace. One of the significant contributions of this study is the comparative analysis of case law from different jurisdictions concerning intermediary liability for copyright infringement. This cross-jurisdictional examination helps illustrate how courts in various countries address similar issues, offering insights into potential harmonization of legal standards and guiding principles for future legislation and litigation. The research identifies specific challenges faced by photographers and copyright holders, such as the difficulty in monitoring vast quantities of online content and enforcing rights across multiple jurisdictions. The article sheds light on the broader impact of copyright infringement on the photography industry. The research offers practical recommendations and strategies to address copyright infringement on e-commerce platforms. These include leveraging automated image recognition technologies, establishing clear guidelines and protocols for sellers, and implementing efficient mechanisms for reporting and removing infringing content.

Data’s Demise and the Rhetoric of SFFA

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the burden strict scrutiny and narrow tailoring impose. Despite previously touting the importance of data, the current Justices of the Supreme Court disregarded the data presented by both Harvard and UNC. Furthermore, the Court ignored stare decisis by discounting the diversity rationale enshrined by Justice Powell in Regents of the University of California v. Bakke. Since the Supreme Court’s decision on June 29, 2023, scholars and parties to the case have opined about the decision’s impact. Several writings focus on the majority opinion written by Chief Justice John Roberts. Others highlight the dissents written by Justices Sonia Sotomayor and Ketanji Brown-Jackson, but few focus on the concurring opinions. This Article focuses on stare decisis and the data presented by Harvard and UNC in the case. It also posits that rhetoric has been used to falsely frame inclusion practices as racial preferences. As such, this Article explores the origins of rhetoric to evaluate Justice Thomas’s colorblind perspective of the United States Constitution, and more specifically, the Fourteenth Amendment. Finally, this Article conducts a deeper examination of the approach highlighted by Justice Thomas in his concurring opinion.

Get it In Writing: Contracts in Moll Flanders

Abstract: This essay argues that Moll Flanders learns through experience to prefer entering into written, rather than verbal, marriage contracts, regardless of either type of contract's enforceability. It draws upon contract theories that emphasize relationship building as opposed to establishing the groundwork for future litigation to explain why Moll prefers written to verbal contracts. I also analyze several episodes in Moll Flanders in order to demonstrate that Moll learns through experience that written contracts are a pragmatic means of asserting herself, building relationships, and articulating the terms of her relationships. Writing slows down the contracting process and compels Moll's partners to listen to her, process her words, and respond to them thoughtfully and deliberately. The more prolonged the contractual process, the longer the contracting parties can occupy a shared imaginary space of equality, negotiation, and self-creation. This argument also illuminates Pamela's annotations of Mr. B's proposal to become his mistress in Samuel Richardson's Pamela (1740). I conclude that in both novels, written contracts are a feminist strategy used by female protagonists to assert their wishes despite their legal disempowerment.

Applied corpus linguistics and legal interpretation: A rapidly developing field of interdisciplinary scholarship

This article offers an overview of developments in a newly emerging interdisciplinary research field: legal corpus linguistics. The field brings together corpus research and legal theory by applying corpus-analytic techniques and linguistic concepts to facilitate the interpretation of legal texts. Despite the field's short history, it has already contributed important new insights into the meaning of statutory texts and parts of the U.S. Constitution, insights that may have significant practical implications for the American legal system. Our article provides an overview of relevant developments in legal corpus linguistics, from early success stories to recent and ongoing collaborative work between corpus linguists and legal scholars. It aims to highlight the benefits and illustrate the potential of this type of interdisciplinary work by summarizing three recent case studies, each of which deals with an important topic in American constitutional law. The case studies focus in turn on the following parts of the U.S. Constitution: (1) Article III and the meaning of “cases,” (2) the Appointments Provision in Article II, Section 2 and the meaning of “such inferior officers,” and (3) the Impeachment Provision in Article II, Section 4 and the meaning of “misdemeanors.” All three case studies use corpus analysis to explore phraseological patterns in large collections of Founding Era texts to provide insights into the meanings of the selected words and phrases in context during the time the Constitution was drafted and ratified. The article discusses the practical relevance of results from these case studies and potential implications of this and related work in legal corpus linguistics for contemporary and future litigation.

The Effects of Introducing a Harm Threshold for Medical Treatment Decisions for Children in the Courts of England & Wales: An (Inter)National Case Law Analysis

The case of Charlie Gard sparked an ongoing public and academic debate whether in court decisions about medical treatment for children in England & Wales the best interests test should be replaced by a harm threshold. However, the literature has scantly considered (1) what the impact of such a replacement would be on future litigation and (2) how a harm threshold should be introduced: for triage or as standard for decision-making. This article directly addresses these gaps, by first analysing reported cases in England & Wales about medical treatment in the context of a S31 order, thus using a harm threshold for triage and second comparing court decisions about medical treatment for children in England & Wales based on the best interest test with Dutch and German case law using a harm threshold. The investigation found that whilst no substantial increase of parental discretion can be expected an introduction of a harm threshold for triage would change litigation. In particular, cases in which harm is limited, currently only heard when there are concerns about parental decision-making, may be denied a court hearing as might cases in which the child has lost their capacity to suffer. Applying a harm threshold for triage in decisions about withholding or withdrawing life-sustaining treatment might lead to a continuation of medical treatment that could be considered futile.

The Possible Impact of Urgenda and the Klimabeschluss on Climate Litigation on the Example of the Petition Pending Before the Hungarian Constitutional Court

Abstract While there is scientific consensus on the causes and consequences of climate change, also reflected in international agreements and EU norms obliging states to reduce GHG emissions, domestic legislation has been slow or imperfect in implementing reduction duties. Although climate litigation is not a new phenomenon, a specific strand of climate litigation is now gaining impetus owing to the success garnered in Urgenda and the Klimabeschluss: litigation focusing on states’ omitting to lawfully regulate emission targets. This paper presents the context of novel climate litigation in the face of Russian aggression and the ensuing disincentives to promote ambitious reduction goals, proceeding to describe the arguments and findings in the two landmark cases and their effects on future climate litigation as seen in the example of the climate petition pending before the Hungarian Constitutional Court.

Medico-legal liability of injuries arising from laryngoscopy.

Dental and mucosal injuries from laryngoscopy in the peri-operative period are common medico-legal complaints. This study investigated lawsuits arising from laryngoscopy. Westlaw, a legal database containing trial records from across the USA, was retrospectively reviewed. Plaintiff and/or defendant characteristics, claimed injuries, legal outcomes and awards were extracted. Of all laryngoscopy-related dental or mucosal injuries brought before a state or federal court, none (0 per cent) resulted in a defence verdict against the provider or monetary gain for the patient. Rulings in the patient's favour were observed only when laryngoscopy was found to be the proximate cause of multiple compounding complications that culminated in severe medical outcomes such as exsanguination, septic shock or cardiopulmonary arrest. Proper laryngoscopy technique and a robust informed-consent process that accurately sets patients' expectations reduces litigation risk. Future litigation pursuits should consider the low likelihood of malpractice allegation success at trial.

Medical Malpractice Lawsuits Involving Percutaneous Coronary and Peripheral Intervention.

Malpractice lawsuits following percutaneous coronary and peripheral interventions are not uncommon. Understanding the most common causes of medical legal action can inform clinicians and prevent future injury and litigation. LexisNexis is a legal database that compiles all publicly available court records for state and federal jury verdicts and settlements in the United States. We analyzed LexisNexis for malpractice cases involving percutaneous coronary and peripheral interventions between January 1, 2005 and December 31, 2020. We found a total of 89 cases over the studied period, of which 55 cases were coronary interventions, 18 cases were peripheral interventions, and 16 cases did not specify the vessel location. Procedural error was alleged in 44 (49.4%) cases, complications in 42 (47.2%) cases, failure to monitor in 22 (24.7%) cases, failure to properly treat in 15 (16.9%) cases, incorrect treatment in 15 (16.9%) cases, failure to refer in 10 (11.2%) cases, lack of informed consent in 9 (10.1%) cases, and delay of intervention in 3 (3.4%) cases. The most common procedural error was vessel perforation (34.1%). Death was the most prevalent precipitating medical outcome of the cases (n = 41, 46.1%). Litigation resolution favored the defendant in 43 (48.3%) cases, the plaintiff in 13 (14.6%) cases, and a settlement was reached in 33 (37.1%) cases. Awareness of the most common causes of litigations among interventional cardiologists and vascular specialists may prevent future legal actions and promote implementations of processes to improve patient care. Our results suggest the importance of attentive patient care before, during, and after percutaneous coronary and peripheral interventions. Procedural expectations and risks should be meticulously discussed with patients and families.

903 Operative Records at Emergency Inguinal Hernia Repair: Improvements Might Avoid Future Litigation

Abstract Background Chronic groin pain (CGP) after inguinal hernia repair is a multi-factorial problem of variable incidence. The literature is concentrated on the management of CGP after elective repair where litigation for pain accounts for up to 40% of claims for negligence. Method Computerised surgeon-typed operative reports of all emergencies inguinal hernia repairs in a single DGH over two years were scrutinised. Specifically looking for the descriptions of the handling of the spermatic cord and the nerves of the canal. Results Forty-three repairs were performed by surgeons in training using an open approach. The majority were primary hernias (37/43; 86%) and the repair was usually augmented with prosthetic mesh (88%). Cord handling was described in 35 patients (81%) but identification of the ilio-inguinal nerve was documented in only three. No report mentioned ‘seeking but not finding’ the nerve(s). Conclusions Surgeons in training seem to disregard documenting the status of nerves at urgent/emergency repair. Lawyers can be forgiven for arguing negligence if operative records omit observations on vital structures prone to ‘inadvertent’ damage. This needs to be emphasised to all those concerned with the emergency repair of inguinal hernias.

Framing Climate Litigation in Individual Communications of the African Human Rights System: Claw-Backs and Substantive Divergences

Abstract Climate litigation is anticipated to continue expanding, especially related to the interface with the human rights of vulnerable populations and the adequacy of states’ efforts to adopt and implement climate laws. While the possibility of climate-related litigation is envisaged before the African Human Rights System (AHRS), there is no pioneering case on climate change at that level yet. Essential rights that may be relevant in climate change litigation in the AHRS are not yet tested and often have claw-back clauses that have limits imposed by national legislation. Also, climate change commitments that may link to human rights are under a regime outside the AHRS. These developments may generate conceptual divergences regarding a state’s sovereign right and climate justice in future climate litigation within the AHRS. This article explores the potential application of claw-back clauses and divergent views on states’ sovereign rights and climate justice in climate change instruments that may feature in individual communications at the AHRS.