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Environmental Protection as an Obstacle to Free Movement of Goods: Realist Jurisprudence in Articles 28 and 30 of the e.c. Treaty
Get PDFFree trade and environmental protection are two norms that sometimes collide. The resolution of colliding norms can occur either using a formalist “descriptive” analysis, or using a “prescriptive” approach of legal realism. It may seem intuitive to imagine realism and formalism as mutually exclusive. However, this dualism is not entirely accurate. The realist-formalist dualism is unsatisfying because legal realism critiques the capricious nature of formalism only to replace it with likewise capricious methods of legal decision-making. Further, courts sometimes act as realists and at other times as formalists. Finally, many methods of legal interpretation may be considered either “formalist” or “realist.” This paper examines the conflict between free trade and environmental protection in E.C. law. It uses Articles 28 and 30 of the E.C. Treaty as a foil with which to draw out the distinctions and limits of both realism and formalism. A formal analysis of Articles 28 and 30 of the E.C. Treaty reveals a series of cases that struggle first to define waste as wares and then to determine the limitations that the free movement of goods imposes on environmental standards and vice versa. However, this unsatisfying formal analysis is not the only possible interpretation of the case law arising out of Articles 28 and 30. An analysis based on legal realism is also possible but not entirely satisfying. This paper concludes that the realist-formalist dualism, though tenable, does not solve the problem of capricious legal power
Ibp, Inc. V. Alvarez: Has the Supreme Court Placed Employers on the Cutting Block?
Get PDFAccording to the U.S. Supreme Court’s recent decision in IBP, Inc. v. Alvarez, walking that takes place during the workday may not only be good for employees’ health, but may also be good for their paychecks as any time employees spend walking after the donning of and prior to the doffing of required safety equipment must now be compensated under the Fair LaborStandards Act. While this is good news for employees, it is not good news to numerous employers for a several reasons. Based on the Supreme Court’s decision, employers are likely to face increases in liability and expenditures; increases in expenditures are most likely to take the form of litigation, labor, and restructuring costs, and will also include costs associated withimplementing new workplace rules and policies regarding the donning and doffing of protective equipment and any related walking, and new timekeeping policies. Additionally, while not employer-specific problems, the application of the decision to the reality of the workplace creates opportunities for different compensation treatment of relatively similarly situated employees
Civil Rights for Trafficked Persons: Recommendations for a More Effective Federal Civil Remedy
Get PDFIn response to increasing public awareness of human trafficking in the United States, the Victims of Trafficking and Violence Protection Act (TVPA) was signed into law by President Bill Clinton in October of 2000. The TVPA consolidated existing legislation to create a comprehensive civil remedy; this ensures that trafficking victims are no longer forced to seek redress under multiple criminal and civil statutes that target only components of the human trafficking offense. However, despite its status as the first comprehensive anti-trafficking legislation to be enacted in the United States, the TVPA fails to sufficiently address human trafficking concerns. It is suggested that the failure of the TVPA is a result of both the prosecutorial focus of the legislation, a focus which tends to overlook victims’ civil rights, and the contingency of TVPA benefits upon adherence to the prosecutorial process. In response to the shortcomings of the TVPA, the legislation was amended by the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA) to provide a civil remedy for trafficking victims. The civil remedy confers on trafficking victims the private right to vindicate their civil rights and hold their traffickers directly accountable for their exploitative acts. By directly compensating victims, the civil remedy acts as a financial deterrent against traffickers and provides a private enforcement anti-trafficking policy. In pursuing the civil remedy, trafficking victims possess several advantages over the prosecutorial process of the TVPA and other civil causes of action. However, despite its advantages, the civil remedy is infrequently utilized thus frustrating congressional intent that victims advance antitrafficking policy by enforcing a civil remedy against their traffickers
Zapata Retold: Attorneys’ Fees Are (Still) Not Governed by the CISG
Get PDFIn Viva Zapata (the 1952 movie), a Mexican revolutionary hero named Zapata led a band of hungry peasants in a wild uprising against the government in power. In the film, Zapata (played by Marlon Brando, himself) scored some crowd-pleasing victories, but (historians tell us) the rule-making powers ultimately prevailed, reigning in the Wild One and ending (forever) Zapata’s quixotic quest
Dura’s Effect on Securities Class Actions
Get PDFOn April 19, 2005, the United States Supreme Court rendered a unanimous decision in Dura Pharmaceuticals, Inc. v. Broudo, which had been described as “the most important securities case in a decade.” Simply put, the decision raises the pleading standard for Rule 10b-5 cases asserting fraud-onthe-market; instead of requiring a showing of ex ante losses, such as inflation at the time of purchase, Dura requires a showing of ex post losses, such as market decline resulting from a corrective disclosure. This paper assesses the decision’s practical implications by examining and empirically testing whether the Supreme Court’s enhanced pleading requirements have impacted the frequency and magnitude of post-Reform Act (PSLRA) class action securities cases. Specifically, this paper examines Dura’s effect on the filing and settling of cases, as well as on settlement amount. In particular, the results suggest that Dura, ceteris paribus, has had a statistically significant impact on both the filing and settlement of class actions, suggesting a reduction in frivolous litigation
The International Contracting Practices Survey Project: an Empirical Study of the Value and Utility of the United Nations Convention On the International Sale Of Goods (Cisg) and the UNIDROIT Principles of International Commercial Contracts to Practitione
Get PDFIn an era of globalization it is perplexing that so many U.S. practitioners, jurists, and legal academics continue to view contract issues as governed exclusively by state common law and the Uniform Commercial Code. In essence, a significant number of lawyers may be defaulting to the wrong law, in the absence of an effective choice of law clause, when trying to determine the rights and responsibilities arising out of international commercial transactions. The object of the International Commercial Contracting Practices Survey Project was to learn more about how and why this occurs
“Measuring the Immeasurable”—the Effects of Trademark Regimes: a Case Study of Arab Countries
Get PDFWhen the law sets out rules and standards it also sets in motion a complex set of mechanisms that determine how the law is implemented and how it functions. Thus, the “law in books” and the “law in action” are, in more ways than one, distinct creatures, separated at birth, leading separate lives. Trademark law is no exception.This research introduces, through data analysis, a method for measuring and assessing the effects of trademark law on countries. In constructing this model I have focused on four Arab countries. However, the model itself is applicable to all countries. Indeed, the comparative data that is presented in this research relates to various countries around the world
The Enron Collapse and Criminal Liabilities of Auditors and Lawyers for Defective Prospectuses in the United States, Australia and Canada: a Review
Get PDFA lack of uniformity in laws regulating professionals such as auditors and lawyers in relation to defective prospectuses exists across nations around the world. Securities legislation of some jurisdictions clearly imposes criminal liabilities for defective prospectuses on professionals along with directors and promoters of the issuer of securities. But the laws of some other countries are ambiguous in this regard. Such an ambiguity is present in the securities legislation of the United States, Australia and Canada. Their legislation does not categorically name the persons who should be criminally liable for a defective prospectus; nonetheless auditors and lawyers are sometimes caught by virtue of judicial interpretations of those vague legal provisions. Even though they could be on the hook under such interpretations, legislation provides a wide range of defences that facilitate escaping liabilities by offenders at the expense of the integrity of the market. Regarding sanctions, although the term of imprisonment is identical in all these three jurisdictions, pecuniary penalties significantly vary after the recent reforms triggered by some spectacular corporate bankruptcy taking place especially in the U.S. and Australia. Most importantly, the post-Enron reforms explicitly amend the laws governing secondary securities markets, and therefore their application to defective prospectuses is questionable except for the Canadian reforms. If the post-Enron reforms do not really touch the prospectus liability regimes in the U.S. and Australia, it can be said that the lawmakers have ignored their primary securities markets. If this is so, it would be an unwise policy to wait for an Enron-type disaster to occur in the IPO market for stimulus to initiate reforms addressing professional malpractices in the preparation of prospectuses. If not, the law should make it clear before it is too late
Legal Costs as Damages in the Application of UN Sales Law
Get PDFIn the literature on the uniform UN sales law (CISG), the decisions in the first and second instances of the Zapata1 case triggered an extraordinarily lively discussion. Simply stated, the case concerned the delivery of painted cookie tins used for packaging Christmas cookies, for which the American buyer (i.e., place of business in the USA), citing flimsy pretexts, refused to pay. The Mexican seller (i.e., place of business in Mexico), sued and was awarded compensatory damages; as part of the damages, the trial court also awarded the plaintiff its attorneys’ fees. At the appellate level, where only the issue of attorneys’ fees was disputed, the appellate court rejected the claim for reimbursement of attorneys’ fees and reversed the trial court decision. [The seller’s] appeal to the U.S. Supreme Court by writ of certiorari was denied. The cases concerned the so-called “American rule,” according to which the parties each bear their own litigation expenses, and in particular their own attorneys’ fees, independent of the outcome of the case. This deviates from German legal understanding and has significant practical consequences. In particular, high attorneys’ fees could lead to the result that the compensatory damages awarded to the plaintiff in actuality fall far short of covering his losses, and for the victorious defendant winning a case can be a pyrrhic victory. Yet, the American rule is not without exceptions, and especially for abusive lawsuits brought on obviously groundless claims, American procedural law permits the losing party bringing such claims to be partially burdened with the cost.Also in cases of especially serious breach of contract, an award of punitive damages could make it possible for the victorious plaintiff to recover his litigation expenses and attorneys’ fees. Nevertheless, in the large majority of cases the American rule leads to the described results, which for German jurists appear at first glance surprising and unacceptable. Especially for foreign parties to a contract who come before an American court and win, the American rule can lead to unpleasant surprises