Parallel Claims Research Articles

Friends or Foes: Incumbents’ Parallel Claims and Category Creation in Retail Banking

Friends or Foes: Incumbents’ Parallel Claims and Category Creation in Retail Banking

Transforming settler nationalism in Québec: Recovering the principles of the historical treaties

AbstractThe settler nature of Québécois society makes it a distinct case of minority nationalism. Québec's claim of self‐determination is necessarily more complex and intricately woven with parallel claims from the Indigenous peoples of the territory. This paper argues, first, that Québécois society holds significant obligations toward Indigenous peoples reflected in the commitments made in the historical French treaties and second, that the normative principles embedded in those treaties should be used to transform the relationships it holds with Indigenous peoples and Québec's nationalist project itself. Overall, the paper suggests that Québécois nationalism needs to move away from settler colonialism by considering more seriously the shared nature of the territory it purports to have sovereignty over and by upholding the principles that allowed settlers to stay on the land.

Why Epistemic Believing Makes Us Better (Public) Sociologists

I make parallel claims about the potential for “believing” as a methodological and political practice: it is a skill that can link the academic and political, and it is crucial for public sociology. Drawing on my experience of simultaneously being a sitting state senator and a university professor, I argue that while professional sociology is premised on and starts with skepticism, doubt, and criticism, public engagement as sociologists must, to a greater extent, be premised on reception and welcome of ideas. We need prosocial, courageous frameworks to realize the practical and ethical potential of sociology. Believing can do three things: it can help make our work more robust by exploring more ways of knowing (making us better scholars); it can help us create more and better connections with others doing such work (making us better organizers); and can help our social systems be more responsive and adaptive (it gives us better institutions). I outline how I see this happening.

Medicolegal Sidebar: Are Implant Sales Reps in the Operating Room Legally Untouchable?

Medicolegal Sidebar: Are Implant Sales Reps in the Operating Room Legally Untouchable?

Semicompatibilism and Moral Responsibility for Actions and Omissions: In Defence of Symmetrical Requirements

ABSTRACT Although convinced by Frankfurt-style cases that moral responsibility does not require the ability to do otherwise, semicompatibilists have not wanted to accept a parallel claim about moral responsibility for omissions, and so they have accepted asymmetrical requirements on moral responsibility for actions and for omissions. In previous work, I have presented a challenge to various attempts at defending this asymmetry. My view is that semicompatibilists should give up these defences and instead adopt symmetrical requirements on moral responsibility for actions and omissions, and in this paper I highlight three advantages of doing so: first, it avoids a strange implication of the truth of determinism; second, it allows for a principled reply to Philip Swenson’s recent ‘No Principled Difference Argument’; third, it provides a reason to reject a crucial inference rule invoked by Peter van Inwagen’s ‘Direct Argument’ for the incompatibility of moral responsibility and determinism.

The American Advantage in Civil Procedure? An Autopsy of the Deutsche Telekom Litigation

This article examines the influence of civil procedure on the legal framework that supports securities markets in the U.S. and in Germany, two very different legal systems. It does so by way of comparing parallel shareholder actions against Deutsche Telekom for securities disclosure violations arising out of the same facts and allegations – the first set of actions filed in federal district court in Manhattan, the second filed in district court in Frankfurt, Germany.Deutsche Telekom was accused in both actions of misrepresenting the value of its real-estate holdings in its financial disclosures and for failing to disclose negotiations for the acquisition of the U.S. Company VoiceStream in its July 2000 offering prospectus.But the cases proceeded very differently and produced dramatically different outcomes. Within five years, and after full discovery, the U.S. class action plaintiffs negotiated a $120 million settlement with the Deutsche Telekom defendants. Meanwhile, the parallel claims by German shareholders, the first of which were filed in 2001, were ultimately dismissed by the German courts in 2012. Until now the German shareholders have received nothing, even after the German Bundestag had adopted a new and unprecedented aggregate litigation mechanism in late 2004 (dubbed “the Deutsche Telekom law”) to afford thousands of complaining German shareholders a reasonable mechanism for pursuing a just and speedier resolution of their claims against the DT defendants.The article also engages claims about the importance of litigation discovery for corporate and securities laws advanced by Michael Halberstam and Erica Gorga in Litigation Discovery and Corporate Governance: The Missing Story About “The Genius of American Corporate Law” 63 Emory Law Review 1383 (2014).

Evans, transparency, and Cartesianism

AbstractIn The Varieties of Reference, Evans makes two parallel claims about thought and perception. He argues that both our capacity to self‐ascribe thought and our capacity to self‐ascribe perception are fallible. The essay focuses on his claim about perception and examines its relation to Evans's project of rejecting a Cartesian conception of the mind. In his theory of perception, I argue, Evans embraces a conception of first‐person authority that he seeks to reject in his account of thought. He is thus not able to extend to perception the critique of Cartesianism that he develops in the context of his analysis of thought. My intent is not exclusively critical. By working through the difficulties that Evans's argument raises, I seek to shed light on whether and, if so, how criticisms of a Cartesian conception of thought may be extended to the philosophy of perception.

Preempting the Artificially Intelligent Machine

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned as reducing climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient. The Food and Drug Administration (FDA), the administrative agency responsible overseeing the safety and efficacy of medical devices, has not effectively addressed AI system safety issues for its clearance processes. If the FDA cannot reasonably reduce the risk of injury for AI-enabled medical devices, injured patients should be able to rely on ex post recovery options, as in products liability cases. However, the Medical Device Amendments Act (MDA) of 1976 introduced an express preemption clause that the U.S. Supreme Court has interpreted to nearly foreclose liability claims, based almost completely on the comprehensiveness of FDA clearance review processes. At its inception, MDA preemption aimed to balance consumer interests in safe medical devices with efficient, consistent regulation to promote innovation and reduce costs. Although preemption remains an important mechanism for balancing injury risks with device availability, the introduction of AI software dramatically changes the risk profile for medical devices. Due to the inherent opacity and changeability of AI algorithms powering AI machines, it is nearly impossible to predict all potential safety hazards a faulty AI system might pose to patients. This article identifies key preemption issues for AI machines as they affect ex ante and ex post regulatory-tort allocation, including actual FDA review for parallel claims, bifurcation of software and device reviews, and dynamics of the technology itself that may enable plaintiffs to avoid preemption. This Author then recommends an alternative conception of the regulatory-tort allocation for AI machines that will create a more comprehensive and complementary safety and compensatory model.

Nuclear Weapons Before the International Court of Justice: A Critique of the Marshall Islands v United Kingdom Decision

The International Court of Justice recently gave judgment in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. The case concerned three parallel claims brought by the Marshall Islands against India, Pakistan and the United Kingdom for their alleged failure to fulfil obligations concerning negotiations relating to the cessation of the nuclear arms race and nuclear disarmament under art VI of the Non-Proliferation Treaty and customary international law. The Court in all three proceedings dismissed the claims at the preliminary objections phase on the sole ground that a legal dispute did not exist between the parties. In determining whether a legal dispute existed, the Court appears to have deviated from the objective determination taken in its previous jurisprudence by introducing, for the first time, a new requirement of "awareness". The Court also failed to address the other preliminary objections brought by the United Kingdom such as the Monetary Gold principle, which appears to have been a more credible avenue for the Court to dismiss the case. The case illustrates the failure by the Court to yet again confront the issue of nuclear weapons.

Nuclear Weapons Before the International Court of Justice: A Critque of the Marshall Islands v United Kingdom Decision

The International Court of Justice (ICJ) recently gave judgment in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. The case concerned three parallel claims brought by the Marshall Islands against India, Pakistan and the United Kingdom for their alleged failure to fulfil obligations concerning negotiations relating to the cessation of the nuclear arms race and nuclear disarmament under Article VI of the Non-Proliferation Treaty (NPT) and customary international law. The Court in all three proceedings dismissed the claims at the preliminary objections phase on the sole ground that a legal dispute did not exist between the parties. In determining whether a legal dispute existed, the Court appears to have deviated from the objective determination taken in its previous jurisprudence by introducing for the first time a new requirement of “awareness”. The Court also failed to address the other preliminary objections brought by the United Kingdom, such as the Monetary Gold principle, which appears to have been a more credible avenue for the Court to dismiss the case. The case also illustrates the failure by the ICJ to yet again confront the issue of nuclear weapons.

Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice

The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.

Combating Norm and Forum Shopping in Investment Arbitration

The present article seeks to address the norm and forum shopping in investment arbitration that results from the overlap between contract and treaty claims. By no means new, the proliferation of parallel proceedings arising from the same dispute has brought this problem to the forefront of investment arbitration again. The overlap stems from the lack of well-defined spheres of application between treaty and contract: arbitral tribunals have extended the scope of treaties to govern conduct that is not necessarily sovereign, and have construed substantive standards in a broad manner, on occasion reducing the standards to the protection of an investor’s expectations. The difficulty with such interpretations is that they present an investor with a choice as to what standard the host state’s conduct should be measured against, and before which tribunal this should take place. In extreme cases, investors are allowed to initiate simultaneous or subsequent proceedings in connection with the same set of facts before different fora. This discretionary choice of norms and/or duplication of proceedings maximises the investor’s chances not only of recovery but also of success, can allow the investor to put a host state under undue pressure, and may lead to inconsistent decisions. To address this issue, one can clarify the scope of investment treaties by clarifying the conduct treaties are meant to govern and the standards of protection they offer, thus ensuring distinct normative spheres for contract and treaty. Where two norms must nevertheless coexist in respect of the same conduct, tools such as fork-in-the road and waiver provisions can ensure that an investor cannot pursue parallel claims, whether directly or indirectly. If parallel proceedings are nevertheless initiated, concepts such as res judicata have been used to bind the investor to the decisions of the commercial tribunal through which it is claiming even if not a party to the commercial arbitration.

US‒Carbon Steel (India):Multi-Product Firms and the Cumulation of Products

AbstractOne of the key findings inUS-Carbon Steel (India)deals with the appropriate method to determine material injury when imported products are subject to simultaneous anti-dumping and countervailing duty (CVD) investigations. Along with addressing a number of legal issues concerning CVD investigations, the Appellate Body clarified restrictions on cross-cumulation of injury, essentially prohibiting the current US practice, and implicitly raising the burden of proof for parallel claims of dumping and subsidies. This decision is justified on economic grounds, where cumulation imposes a counterfactual scenario against which marginal damages of dumping and subsidies by each country cannot be properly evaluated. However, what the legal rulings by the Appellate Body did not recognize is the economic reality that many like products produced by the firms alleged to have received subsidies were selectively absent from the investigation, which more generally complicates the assessment of injury in dumping and subsidy cases.

US-Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India: To Cumulate or Not Cumulate Products

One of the key findings in this case deals with the appropriate method to determine material injury when imported products are subject to simultaneous anti-dumping and countervailing duty (CVD) investigations. Along with addressing a number of legal issues concerning CVD investigations, the Appellate Body clarified restrictions on cross-cumulation of injury, essentially prohibiting the current US practice, and implicitly raising the burden of proof for parallel claims of dumping and subsidies. This decision is justified on economic grounds, where cumulation imposes a counterfactual scenario against which marginal damages of dumping and subsidies by each country cannot be properly evaluated. However, what the legal rulings by the Appellate Body did not recognize is the economic reality that many like products produced by the firms alleged to have received subsidies were selectively absent from the investigation, which more generally complicates the assessment of injury in dumping and subsidy cases.

Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.)

The Court must protect the right of same-sex couples to marry, and it must protect the right of churches, synagogues, and other religious organizations not to recognize those marriages. This brief, filed in Obergefell and the other current same-sex marriage cases, is an appeal to protect the liberty of both sides in the dispute over same-sex marriage. Serious issues of religious liberty will arise in the wake of same-sex marriage. But it is not appropriate to prohibit same-sex civil marriage to avoid having to address those issues. No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own. The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil. The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages. Doctrinal tools are available to protect religious liberty with respect to marriage, and this brief summarizes them.

Antitrust, Innovation, and Product Design in Platform Markets: Microsoft and Intel

The Antitrust Division’s Microsoft case and the Federal Trade Commission’s Intel case both rested on claims that antitrust intervention was necessary to preserve innovation in technological platforms at the heart of the personal computer. Yet, because those very platforms support markets that are among the most innovative in the American economy, injudicious intervention might well have jeopardized the very innovation that antitrust should promote. In this article, we review the role of platforms in technological innovation and consider how antitrust standards should apply to them. We then examine how Microsoft resolved antitrust issues affecting platform design at various stages of the litigation and show how that experience informed the allegations and the settlement in Intel. We are particularly concerned with the parallel claims in the two cases that Microsoft and Intel each used its control over the design of a dominant platform to hinder innovations that might have made a complementary product a better substitute for the platform. This exercise should help guide future applications of monopolization standards to high technology platforms.

Legal Science as a Source of Law: A Late Reply by Puchta to Kantorowicz

The paper explores a claim made by Hermann Ulrich Kantorowicz in a historically signification pamphlet, which may in some respect well have prepared the intellectual ground for the American legal realist movement. The claim is that the legal science is a source of law. It is startling, to say the least, to find this claim articulated in the context of a piece of sociological jurisprudence. The paper then contrasts Kantorowicz's claim with the the parallel claim made by the historical school and concludes that the ideas articulated by its members - Georg Friedrich Puchta, in particular - were exceedingly more plausible. In order to understand this, however, it is necessary to conceive of all legal knowledge as a species of self-knowledge. This is the idea that the paper tries to make plausible and, indeed, to defend.

Syncretism and its effects within Maltese nominal paradigms

This article discusses the morphologically complex phenomenon of syncretism in its relation to stem patterns, overabundance and overdifferentiation, by describing and analyzing past and ongoing changes in Maltese nominal paradigms. Pathways of diachronic change leading to nominal paradigms in Present-day Maltese are put forward. It will be shown that the canonical/non-canonical paradigmatic classification cannot be simply reduced to a binary parameter. Rather, canonical or non-canonical behaviour can refer to the stem form, word form, affixes or other potential units in a given inflectional paradigm, separately. On such an account, the same paradigm may have different facets, and can be canonical on one parameter but non-canonical on others. A parallel claim will be made for overdifferentiated vs. non-overdifferentiated sets of lexemes. Such lexemes cannot be exclusively considered as belonging to the overdifferentiated or non-overdifferentiated set. As will be shown from the body-parts set of data in Maltese, a lexeme may have split membership, and may belong within both an overdifferentiated and a non-overdifferentiated class of lexemes depending on the inflectional paradigm employed.

MORAL ENHANCEMENT VIA DIRECT EMOTION MODULATION: A REPLY TO JOHN HARRIS

Some argue that humans should enhance their moral capacities by adopting institutions that facilitate morally good motives and behaviour. I have defended a parallel claim: that we could permissibly use biomedical technologies to enhance our moral capacities, for example by attenuating certain counter-moral emotions. John Harris has recently responded to my argument by raising three concerns about the direct modulation of emotions as a means to moral enhancement. He argues (1) that such means will be relatively ineffective in bringing about moral improvements, (2) that direct modulation of emotions would invariably come at an unacceptable cost to our freedom, and (3) that we might end up modulating emotions in ways that actually lead to moral decline. In this article I outline some counter-intuitive potential implications of Harris' claims. I then respond individually to his three concerns, arguing that they license only the very weak conclusion that moral enhancement via direct emotion modulation is sometimes impermissible. However I acknowledge that his third concern might, with further argument, be developed into a more troubling objection to such enhancements.

The Decision in Akai: The Interaction of Apparent Authority and Knowing Receipt

The recent decision of Hong Kong's Court of Final Appeal in Thanakharn Kasikorn Chamkat (Mahachon) v Akai Holdings Ltd ([2010] HKEC 1692, CFA) illustrated the interaction of parallel claims in the tort of conversion and for knowing receipt when a director wrongly claims to be entitled to give a lender security over corporate assets that are then disposed of in exercise of the lender's (non-existent) security rights.