US Case Law Research Articles

What's in the closet: dress and appearance codes and lessons from sexual orientation

PurposeDress and appearance codes are often seen as trivial, both because they seem to fit within our notions of how people ought to behave, and because they appear to reflect legitimate employer concerns in running a business. But they are not constructed in a vacuum. They reflect and enshrine societal stereotypes and expectations of women and men and how they look – including assumptions about gender and sexuality and majoritarian norms. As such, they punish anyone who is an outlier by reason of gender, sexuality, race, religion, or culture. This paper seeks to identify the assumptions and effects on gender, sexuality, professionalism and class in appearance and behavior codes.Design/methodology/approachThis is a conceptual paper exploring US case law on dress codes and employee appearance standards to examine issues of gender and sexual orientation identity on the job. By combining insights from sexual orientation identity theories and visibility, the paper seeks to uncover some of the interactions and effects of these appearance policies on women and LGBT persons in the workplace.FindingsThis paper shows that identity strategies and performances used by LGBT individuals and women in the workplace implicate sexuality and gender, but also professionalism and class. These dress and appearance codes carry with them consequences for both employers and employees.Practical implicationsThe paper highlights the gender, sexuality and identity performance burdens on women and sexual minorities workplace controls over dress and appearance.Originality/valueThe paper discusses topics that are of interest to persons studying sexuality and gender identity issues in employment. It is based on an unpublished talk at the EDI conference in Vienna 2010.

Blue Jeans, Chewing Gum and Climate Change Litigation: American Exports to Europe

This paper analyses how American-style climate change litigation might be adopted by the European Union ('EU') and projects potential methods by which the EU might employ the US model, if it indeed chooses to take the climate change battle to the courts. By synthesising existing US case law in the environment and climate change fields, the paper roughly defines the 'American model' of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and the predominantly civil law European Union are substantial, and the EU has traditionally been averse to enter too far into the American mass torts arena. Accordingly, Europeans have not yet undertaken these types of lawsuits.This paper identifies and examines several realistic options for Europe's possible espousal of the American climate change litigation model through EU law and national law of individual Member States. Although the comparison is admittedly imperfect, I conclude that by drawing on the blueprint of its American counterparts, the EU could viably use Directive 2004/35/EC (environmental liability with regard to the prevention and remedying of environmental damage and the 'polluter pays' principle) and Directive 2003/87/EC (establishing a scheme for greenhouse gas emission allowance trading) in a parens patriae-like manner to hold defendants liable for damages caused by climate change. Additionally with case studies focusing on France, Germany and the United Kingdom, national law alternatives exist for individual Member States, as well as regional and local governments, to take action on behalf of their citizens for injuries resulting from climate change, just like sovereign bodies in the United States have done.

Moving towards Complicity as a Criterion of Attribution of Private Conducts: Imputation to States of Corporate Abuses in the US Case Law

AbstractAccording to the agency paradigm enshrined by the 2001 ILC Articles on State Responsibility, private conducts are attributed to a state when they are carried out on the state's behalf or under its tight control. On closer look, this legal framework proves to be unable to deal with state involvement in human-rights violations perpetrated by powerful non-state actors, such as terrorist groups or transnational corporations. These wrongs, indeed, are often put in place with the fundamental contribution of – but not on behalf of (or under the control of) – a state, with the consequence that, under the traditional paradigm, they could not be attributed to the latter. Against this backdrop, the present paper argues that a new secondary norm has been developing that provides that private wrongs are to be imputed to a state if the latter knowingly facilitated (or otherwise co-operated in) their commission. Although international practice will be duly taken into account, the analysis will be focused mainly on US case law concerning corporate liability for international human-rights violations.

The AmBev Decision and the Regulation of Economic Power in Brazil: At a Crossroads between the US and the EU Competition Law Models

In July 2009, AmBev was condemned in a unanimous decision by the Brazilian competition authority. The conduct in question concerned AmBev's loyalty scheme, which consisted of giving discounts to retailers with the effect of increasing barriers to entry. AmBev, which is the biggest beer manufacturer in South America and part of the multinational Anheuser-Busch InBev group, emerged from a controversial merger between Brahma and Antarctica approved by the competition authority in 1999. In the recent decision, AmBev received the highest fine ever imposed for an abuse of dominance offence in Brazil. The Brazilian competition law and policy has been shaped by both US and EU competition law and case law. This article seeks to convey the relevance and complexities of the ongoing developments and evolution of Brazilian competition law and policy, as well as the regulation of economic power. In this respect, the landmark AmBev decision is relevant as it suggests a departure from the US model and an approximation towards the EU model.

Passing-on Defence and Indirect Purchaser Standing: Should the Passing-on Defence Be Rejected Now the Indirect Purchaser Has Standing after Manfredi and the White Paper of the European Comm

The European Court of Justice (ECJ) recognized in Courage v. Crehan and recalled in Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA the right of ‘any’ individual to claim damages for infringements of Articles 81 and 82 EC. As a reaction to both judgments, the European Commission published, after the Ashurst report, a Green Paper and later a White Paper on damages actions for breach of EC antitrust rules. Two of the obstacles that private parties face in antitrust damages action are the indirect purchaser standing and the passing-on defence. This paper analyses both the indirect purchaser standing and the passing-on defence in a comparative law perspective, between the law of the United States and EC law. This paper finds, after analyzing the US case law and the current economic discussion around the passing-on issue, that it is too difficult for the judiciary to calculate the passing-on. This paper finds therefore that the choice to allow or reject both the passing-on defence and indirect purchaser standing is policy related. Finally, the passing-on defence and indirect purchaser standing in the EU and the European Commission’s White Paper is discussed. This paper finds that the European Commission’s choice to allow both the indirect purchaser standing and passing-on defence is justified from the perspective of policy considerations. Nevertheless, this paper concludes that the European Commission did not succeed in providing strong solutions to the problems that are associated with the indirect purchaser standing and the passing-on defence.

The Employment Contract Revisited. Undocumented Migrant Workers and the Intersection between International Standards, Immigration Policy and Employment Law

AbstractThis article considers recent legal developments on undocumented migrant workers, finds the acceptance of international legal standards unsatisfactory and argues that the private law rights derived from the “semi-legal” employment contract between the employer and the undocumented migrant worker generates a solid base for significant legal claims. It further monitors the promotion of the position of the undocumented migrant workers under recent EU law and calls for a refocusing on the employment contract in the reading of a relevant EC Directive, with a particular emphasis on the issue of access to justice for the migrant workers. The increased number of undocumented migrants who leave their countries of origin for reasons outside the scope of the asylum procedure, as well as the circumstances under which this migration is undertaken and the working conditions of these individuals in the host countries, have brought about legal activities from governments and institutions such as the EU. The aim has in general been to establish sanctions against employers of undocumented migrant workers, but a shift towards a compensatory, employee protective, attitude has recently emerged, both in EU legislation and in a broader perspective in US case law. The article concludes that such a development must be massively supported in relation to access to justice in order to fulfill the ambition. The poor legal position of the undocumented migrant workers is significantly connected to issues of legal representation, trade union participation and the threat of repatriation.

Patent settlements and competition law: where is the European Commission going?

One of the clearer messages from the EU Pharmaceutical Sector Inquiry was that the European Commission believes some patent settlement agreements—in particular those involving payments from the patent holder to the challenger (so-called ‘reverse payments’)—may infringe EU competition law. Indeed, on the day it published the Final Report of the Inquiry, the Commission announced a formal investigation of Les Laboratoires Servier and various generic companies in relation to what are understood to be settlements concerning Servier’s perindopril patents. This is a new development in Europe where patent settlements have not previously been a significant focus of competition law enforcement. In the USA, however, they have been the subject of significant antitrust litigation and debate and, it seems, the Commission is influenced by the US situation. Based on a review of the Commission’s statements and US case law, this article sets out the relevant issues in relation to reverse payment patent settlements, seeking to identify the approach likely to be taken under EU competition law. It also outlines some practical guidance on how to approach patent settlements without engaging competition law concerns.

Wagering contracts : the other basket

Derivatives contracts may be classified by the nature of the rights of the parties, but they may be classified also based on the function or purpose. An old line of US case law raises a potential for classifying derivative contracts that are neither hedges nor call for delivery as wagering contracts. Losses from wagering contracts are deductible only to the extent of wagering gains.

Judicial Assistance in the Taking of Evidence Abroad in Aid of Arbitration: A German Perspective

Today, recourse to international judicial assistance in aid of arbitration seems not to be very frequent, since most often the parties to the arbitration are the ones who arrange for the necessary proof in support of their arguments to be presented to the arbitration tribunal. What seems to happen most often is that, when a person refuses to testify, the party who has an interest in having her heard does not insist on obtaining her statement at any cost, but rather prefers to do without testimony that might be unfavourable. However, there are cases in which a procedure for the cross-border taking of evidence may prove useful. Focusing on the issue of whether states' courts have a legal duty to support not only domestic arbitration, but also foreign arbitral tribunals, the judicial divide is deep. The majority view, based upon the general theory that arbitration is a private matter for contracting parties, as is the taking of evidence from a common law point of view, holds that it would be excessive to oblige a state to lend assistance to arbitral proceedings held outside its own territory. This paper opposes the traditionalist approach, in order to pave the way to a more liberal and effective system of international judicial assistance. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign states' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 USC section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.

Exclusion of US-Holders in Cross-Border Takeover Bids and the Principle of Equality in Tender Offers

To avoid the cumulative application of takeover regulation of more jurisdictions, it is common practice to exclude from the offer shareholders resident in countries adopting extraterritorial conflict rules. Among such countries, the most significant case is that of US securities regulation: according to US case-law, in order to avoid the application of US takeover regulation and anti-fraud provisions, bidders should completely exclude any publicity of the offer in the US or to US resident and consider acceptances from US residents as void.However, such restrictions could be at odds with the principle of equal treatments of target’s shareholders, provided for by the EU Takeover Directive. In the paper I argue that only restrictions to dissemination could be reconciled with the equality principle. On the contrary, restrictions to acceptance represent a clear violation of such principle, which can be admitted only if the cumulative application of US law would make the offer unfeasible.

The Kansas case of K.M.H. US law concerning the legal status of known sperm donors

This article examines the Kansas Supreme Court case of K.M.H. , 169 P.3d 1025 (Kan. 2007) within the context of an increasing body of US case law that addresses the legal status of known sperm donors vis-a-vis their biological children born to women who are not in heterosexual marriages. The article begins with an explanation of US parentage law and then reviews and synthesizes the cases leading up to the K.M.H. decision. The article then details the four different opinions in the K.M.H. case, and, in particular, lays out the discussion of the constitutional challenges to the Kansas sperm donor statute. Next the article discusses how the previous known sperm donor cases impacted the sperm donor’s arguments in K.M.H. , and how these cases failed to support his claim for parental rights. The article continues with a review of two more decisions, issued after the K.M.H. case, incorporating these cases into the evolving trends discerned in the recent court decisions. The article concludes by summarizing K.M.H. ’s position within that evolution.

Discount Policies in US and EU Antitrust Enforcement Models: Protecting Competition, Competitors or Consumer Welfare?

Discount Policies in US and EU Antitrust Enforcement Models: Protecting Competition, Competitors or Consumer Welfare?

Non-Discriminatory Tax Obstacles in Community Law

AbstractThis article compares the approach of the Court of Justice in the area of taxation with its general case law on restrictions on free movement. It is argued that the Court, while sometimes referring to the same concepts as in the field of regulatory barriers, is in practice employing a narrower test. The possible reasons for the comparatively cautious approach are analysed and the issue of double taxation is examined, with reference also to the US case law. Finally, the connections to larger questions concerning the nature of the single market and the roles of the Community institutions are noted.

Exclusion of the 1980 Vienna Convention: Does recent US case law open the door to forum shopping?

Exclusion of the 1980 Vienna Convention: Does recent US case law open the door to forum shopping?

Exposure of financial institutions to criminal liability

PurposeSince, at least 9/11 financial institutions and financial intermediaries are considered to be at the forefront in the international attempt to halt illicit money transfer. Most financial institutions if involved at all play an unknowing or lax, but major role in dictating money laundering schemes. The purpose of this paper is to argue that to avoid sanctions including criminal liability, financial institutions and financial intermediaries must be better prepared and willing to assess prototypical money laundering typologies. To do otherwise will invite civil and criminal liability.Design/methodology/approachThis paper examines legislative pronouncements in general and US caselaw in particular in order to assess compliance and liability: real or imagined.FindingsThere appears to be considerable agreement concerning at least one goal of terrorists attacks and that is to disrupt directly and indirectly economic global stability. Further, those charged with the task of identifying terrorist assets in a financial system and developing a profile of terrorist financial transactions has, at least according to unclassified documents, proved to be futile. Closer international investigation and co‐operation appears to be more a slogan than a reality.Originality/valueReviews examples of blatant illegal acts of money laundering within the banking community and examines the exploding real estate market and its transmigration into the world of laundering illicit money.

Copyright in the networked world: using facts

PurposeThe purpose of this column is to look at how US copyright law deals with facts and what can reasonably be considered as a fact.Design/methodology/approachThe US statutes and case law are examined, as well as standard practices within academic settings for the use and analysis of facts.FindingsUsing facts may require a risk assessment under certain circumstances. Although facts cannot be protected under US law, compilations of facts can have protection under the European Database Directive, and certain apparent facts, such as normal human body temperature, represent judgments based on extensive research and analysis. It is not always clear when a research result achieves the status of a fact and is therefore exempt from copyright protection.Originality/valueThe use of facts is an essential part of scholarly work and factual compilations are important tools for many scholarly communities. Understanding how far facts may be used and manipulated helps researchers and teachers who have grown anxious about copyright infringement.

Software Patenting: Legal Standards in Europe and the US in view of Strategic Limitations of the IP Systems

The legal requirements concerning the statutory extent of protection for patent rights vary considerably throughout various global legal systems. Until today no harmonisation of US and the European provisions for the patentability-assessment of Computer Implemented Inventions (CII) could be achieved. For more than 20 years an ever-increasing field of intellectual creations has opened up for Patent protection by the US case law in force. According to the interpretation of the European Patent Convention (EPC), however, patents must be granted solely for technical inventions. A direct comparison of the two underlying International Property (IP) systems is therefore difficult to achieve and the granted legal titles must be carefully analysed when comparatively assessing their quality and economic exploitability. In this paper an initial concordance of European and US primary and secondary patent law is developed. Consequently the impact on “Software Patent” examination standards as applied by the legal executive authorities – European Patent Office (EPO) and United States Patent and Trademark Office (USPTO) – is determined. The detailed knowledge of the respective standards for so-called statutory subject matter makes up the basis for a conclusive empirical study of granted and refused European CII patents and patent applications.

US Case Law Developments in 2005

US Case Law Developments in 2005

Patentability Under Trips: The Need For Uniformity

International intellectual property law has never been uncontroversial, and patent law in particular has been the subject of heated debate. The advent of TRIPS seems to have fuelled rather than ended these discussions, as arguments continue to rage on in developing countries about the subject-matter and patent term provisions of TRIPS and the ways in which developed countries have purportedly used TRIPS to impose their own laws on the world. However, such an approach misses the point of TRIPS altogether: the need for international harmonisation. By examining two recent examples from US case law, it becomes apparent that the developed nations need harmonisation as much as the developing nations do, and thus the focus should be on facilitating full harmonisation rather than impeding it through challenging specific provisions.

Dead fish across the trail: illustrations of money laundering methods

Uses examples from US case law to illustrate how money laundering has been attempted in the past. Details a large number of specific methods: cash couriers, cash conversion, safe deposit facilities, credit cards, foreign bank accounts, alternative or parallel remittance systems, trusts, precious metal and gems, art and antiques, expensive lifestyles, fictitious loans, real property, cars, boats and planes, stocks and bonds, bearer bonds, casinos, negotiable instruments, cash for cheque exchanges, business, investment funds, non‐profit organisations, shell corporations, and working capital for a criminal enterprise. Also indicates the factors influencing choice of money laundering methods: the amount of money to be laundered, the availability of professional services from people willing to be involved, the scope for intimidation or corruption of professionals, and so on.