This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries or (...) individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research. (shrink)

The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. This article details the extremely broad range of legal claims, compares the opioid cases to other public health litigation efforts, including tobacco, and describes the special mechanism — a multidistrict litigation — through which more than 700 opioid-related cases have been consolidated thus far, with settlement almost certain to follow.

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, as well as (...) the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of (...) law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it. (shrink)

This article examines a legal dispute over the ownership of nine bondservants between a Buddhist monastery and two monks and a nun, focusing on the legal apparatus and practices in Dunhuang when it was under Tibetan control. During the Tang, eminent monks of the Buddhist clergy petitioned for exemptions from public courts in order to restrict trials of ordained Buddhists at alternative venues. Such petitions were declined, granted, or revoked by different Tang emperors. This case study demonstrates that ordained Buddhists (...) on this Sino-Tibetan frontier affiliated with the Buddhist clergy in Dunhuang did not enjoy this privilege. Instead of being shielded from public attention, two Buddhist monks and a nun successfully litigated against a Buddhist monastery in a public court. (shrink)

By promoting greater alignment between law and capital, litigation financing has the potential to further escalate the substantial restructuring that is occurring throughout the legal profession. This article examines regulation of the relationship between litigation funders and lawyers in three common law jurisdictions: the United Kingdom; the United States; and Australia, against the backdrop of a sea change in the way in which legal services are being delivered. It argues that a broad prescriptive approach rather than proscriptive prohibitions (...) are the best way to regulate the emerging relationship between law and capital. (shrink)

Rehearing Daubert on remand from the Supreme Court, Judge Kozinski introduced a fifth "Daubert factor" of his own: that expert testimony is based on "litigation-driven science" is an indication that it is unreliable. This article explores the role this factor has played in courts' handling of scientific testimony, clears up an ambiguity in "litigation-driven" and some uncertainties in "reliable," and assesses the reasons courts have given for reading such research with suspicion. This analysis reveals that research that is (...) litigation-driven in the stronger of the two senses distinguished is inherently less likely to be evidentially reliable; but also that it is so hard to determine whether research is litigation-driven in this strong sense that this new Daubert factor is not as helpful as Judge Kozinski imagined. (shrink)

Over the past twenty-five years, thirty-seven states and the US Congress have passed mental health and substance use disorder (MH/SUD) parity laws to secure nondiscriminatory insurance coverage for MH/SUD services in the private health insurance market and through certain public insurance programs. However, in the intervening years, litigation has been brought by numerous parties alleging violations of insurance parity. We examine the critical issues underlying these legal challenges as a framework for understanding the areas in which parity enforcement is (...) lacking, as well as ongoing areas of ambiguity in the interpretation of these laws. We identified all private litigation involving federal and state parity laws and extracted themes from a final sample of thirty-seven lawsuits. The primary substantive topics at issue include the scope of services guaranteed by parity laws, coverage of certain habilitative therapies such as applied behavioral analysis for autism spectrum disorders, credentialing standards for MH/SUD providers, determinations regarding the medical necessity of MH/SUD services, and the application of nonquantitative treatment limitations under the 2008 federal parity law. Ongoing efforts to achieve nondiscriminatory insurance coverage for MH/SUDs should attend to the major issues subject to private legal action as important areas for facilitating and monitoring insurer compliance. (shrink)

In an ongoing class action suit against large tobacco companies, including Philip Morris, Inc., and R.J. Reynolds Tobacco Co., Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York issued an opinion on October 15, 2002 making statistical proof available to address plaintiffs’ common questions and prove required elements of consumer fraud.The dilemmas inherent in tobacco litigation as a mass tort action include overcoming the collective action problem, mobilizing appropriate and persuasive legal theories (...) for recovery, and meeting the standards of proof, all in a timely and cost-effective manner. While some tobacco cases have proceeded on products liability theories of defective or negligent design, many recent cases are grounded in consumer fraud laws. (shrink)

Recent debates about redress mechanisms for medical accident victims have been sidetracked by fears of an American-style medical malpractice crisis. What is required is a framework within which the debate can resume. This paper proposes such a framework by focusing on the compensation and deterrence objectives and placing them in the wider context of the social costs of providing medical services. The framework is then used to assess and compare the effectiveness of differing approaches. In particular, the American and British (...) experiences of litigation, including the concept of 'defensive medicine', are evaluated. Also discussed briefly are alternatives to court-based complaints procedures including 'no-fault' schemes, professional ethics and internal complaints mechanisms. (shrink)

This book examines the potential of litigation as a strategy to advance the right to health by holding governments accountable for these obligations. It asks who benefits both directly and indirectly—and what the overall impacts on health equity are. Included are case studies from Costa Rica, South Africa, India, Brazil, Argentina and Colombia.

Litigation and mediation offer substantive and important approaches toward resolving environmental disputes. Yet as currently practiced both approaches have shortcomings. For example, litigation often promotes divisive, adversarial relationships. Mediation often yields untenable ground given the seriousness of many environmental problems. This paper offers a reconception of both approaches. It is argued that both litigation and mediation need to be embedded within a more ethically comprehensive context, one of ‘courting ethical community’. Discussion focuses on what it means in (...) this sense to court, on what defines and bounds the ethical, and how courting depends on understanding not only differences but commonalities in people's environmental views and values. (shrink)

Against the background of a deeply uneven package of work–family reconciliation measures and an increasing focus on engaging men in unpaid care work, in this article I discuss the extension of the Irish discrimination law framework to provide protection against family status discrimination to workers who are engaged in certain care relationships. While this development of the law to recognize a relational understanding of inequality is welcome, its confined definition of family status fails to capture the range of workers’ caring (...) relationships and networks. Adopting a contextualized assessment of 12 years of litigation generated under the ‘family status’ ground, with reference to complainants’ gender and work status, the study considers the types of experiences being litigated as ‘family status’ discrimination. The study show how much of the nature and forms of inequality presented before the tribunals are beyond the conceptual boundaries of the principle of equal treatment that depends upon a sameness of treatment model with the ‘care-less’ comparator. Despite its potential to question the neutrality of workplace structures predicated upon the division between paid work and unpaid care, the principle of indirect family status discrimination has been under utilised as a litigation strategy. The most successful dimension of family status discrimination protection has been in respect of its ability to capture the negative stereotyping of worker–carers who continue to perform as ideal workers. I suggest that this extension of a limited negative rights framework, when considered alongside the state’s extremely poor support for workcare reconciliation more broadly, places negligible obligations on employers, and that the gender neutrality implicit in its provisions have yet to impact on gender equality as regards work–care reconciliation. (shrink)

In recent years, a number of prominent scholars have touted the use of litigation as an effective tool for making public health policy. For example, Stephen Teret and Michael Jacobs have asserted that product liability claims against car makers have played a significant role in reducing automobile-related injuries, Peter Jacobson and Kenneth Warner have argued that litigation against cigarette manufacturers has advanced the cause of tobacco control, and Phil Cook and Jens Ludwig have suggested that lawsuits against the (...) firearms industry can reduce gun violence. Critics have attacked this use of litigation as doing more harm than good to public health and as a misuse of the courts. This debate involves two distinct controversies: one over whether the public health benefits of litigation outweigh its costs and the other over the proper role of courts within our system of government. (shrink)

This article is part of a Symposium that examines the legal and policy issues raised by the Schwarzenegger bobblehead doll litigation, in which a Hollywood star-turned-governor sued under California's right of publicity laws and under federal copyright law to stop a small Ohio company from selling a bobblehead doll depicting Schwarzenegger in a business suit, with a bandolier of bullets, and brandishing an assault rifle. The article contends that defendants' unauthorized use of the Schwarzenegger image on dolls and their (...) accompanying packaging was permissible as First Amendment-protected free speech under California's right of publicity laws and also constituted fair use under federal copyright law. The article rejects the argument that a First Amendment defense to plaintiff's right of publicity claims was unavailable because a bobblehead doll is not a "traditional" medium of expression for ideas. The article recognizes that overly expansive assertions of rights of publicity and other intellectual property rights threaten to stifle creative expression and diminish the cultural commons. The article also calls for clearer and more consistent recognition of defenses to right of publicity claims, particularly for cases where a defendant's unauthorized appropriation of another's image or likeness is for purposes of caricature, parody, or satire¿especially where the image is that of a politician. It concludes that the settlement of the Schwarzenegger bobblehead doll case illustrates how "strategic" assertions of even objectively non-meritorious rights of publicity can allow powerful plaintiffs to censor unflattering depictions of them and to unduly expand intellectual property rights without full adjudication on the merits of such claims.This insight is critical, because while other scholars have suggested that the "over-protection" of intellectual property rights (including rights of publicity) has a deleterious effect on freedom of expression and the public domain, these criticisms focus almost exclusively on published appellate cases. Yet, as this article reminds us, most cases settle and never become litigated cases, much less published appellate decisions. And most disputes - including intellectual property disputes - never result in formal litigation in the first instance. As with most other areas of the civil disputing process, intellectual property disputes are processed in the "shadow of the law", where repeat players have strategic advantages to shape the outcomes of disputes in their favor. Thus, if we want to know whether intellectual property rights are over-protected, we need to know what happens (and why) in the shadow of intellectual property law. This insight is the basis for the author's empirical research-in-progress focusing on "strategic intellectual property enforcement" by owners of trademarks, copyrights, and patents, including enforcement that never results in litigation and is thus under the radar of what most legal scholars in this area of law examine. (shrink)

An ongoing debate among legal scholars and public health advocates is the role of litigation in shaping public policy. For the most part, the debate has been waged at a conceptual level, with opponents and proponents arguing within fairly well-defined boundaries. The debate has been based either on speculation of what litigation could achieve or on ideological grounds as to why litigation should or should not be used this way. With the exception of Rosenberg's study of how (...) litigation shaped policy in civil rights, abortion, and environmental matters, there is almost no empirical support for either position.In recent years, the most ardent proponents of litigation as public policy have been public health advocates. Perhaps out of frustration with the inability to achieve desired public health goals through the legislative branch of government, public health advocates have pursued litigation as an alternative strategy. Beginning with tobacco class action litigation in the early 1990s and continuing with litigation against gun manufacturers at the end of that decade, public health advocates have waged a veritable litigation assault aimed at changing how public health policy is formed. (shrink)

This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

For at least the past three decades, injuries have been recognized as an important public health problem in the United States. In 2001, there were approximately 157,000 deaths due to injuries in the US. There were also almost 30 million non-fatal injury incidents.Injuries have been defined as: “…any unintentional or intentional damage to the body resulting from acute exposure to thermal, mechanical, electrical, or chemical energy or from the absence of such essentials as heat or oxygen”. Within public health, the (...) field of injury prevention and control is dedicated to reducing the burden of injuries on the lives of people around the world.Injury prevention seeks to reduce injuries by: 1) identifying risk factors, 2) designing interventions to address the risk factors, 3) implementing those interventions, 4) evaluating their effectiveness, and 5) replicating those that work. As with many other public health problems, interventions can target factors associated with the human or host, vehicle or vector, and the physical or social environment. (shrink)

This article analyzes some recent developments in the system of public law in the Russian Federation, focusing in particular on changing patterns of litigation and increases in use of administrative law, linked to new acts of legislation. It argues that discussion of the Russian case provides a sociological perspective in which we can understand the importance of legal actions in hybrid polities. It explains that litigation in Russia, even where it may have counter-systemic outcomes, is partly incentivized by (...) the government, as promotion of access to law is seen as a means to formalize interactions between citizens and government and so to extend the societal penetration of the political system more generally. Litigation thus forms a mode of practice that, dialectically, possesses both inner- and counter-systemic status. In addition, the article argues that the case of Russia allows us to comprehend litigation as an element in processes of nation building and social integration more widely, and Russia illuminates the systemic significance of litigation in other societies. (shrink)

Domestic litigation has become a principal strategy for realizing international treaty obligations for the human right to health, providing causes of action for the public’s health and empowering individuals to raise human rights claims for HIV prevention, treatment, and care. In the past 15 years, advocates have laid the groundwork on which a rapidly expanding enforcement paradigm has arisen at the intersection of human rights litigation and HIV/AIDS policy. As this enforcement develops across multiple countries, human rights are (...) translated from principle to practice in the global response to HIV/AIDS, transforming aspirational declarations into justiciable obligations and implementing human rights through national policies and programs. (shrink)

Human clinical research trials, by which corporations, universities, and research scientists bring new drugs, devices, and procedures into the practice and marketplace of medicine, have become a huge business. The National Institutes of Health doubled its spending over the past five years, while in the private sector the top twenty pharmaceutical companies have more than doubled their investment in research and development over a roughly comparable period. To date, some twenty million Americans have participated in clinical research trials that now (...) are as common in the private practice setting as in academia.For many years human clinical trials received relatively little public attention. In the wake of several well-publicized research abuses, Congress created in 1974 the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research to formulate recommendations to protect human research subjects. The Commission’s 1979 Belmont Report helped to guide the Institutional Review Boards that review the ethics of federally funded research. (shrink)

The transformative effects of alternative dispute resolution (ADR) practices and processes in Australia are wide spread and far reaching. The move away from adjudication affects legal institutions, legal practitioners and the judiciary. As lawyers play a key role in the administration of justice, the transition to ADR transforms many areas of legal practice. This article considers the rise of ADR in Australia in the non-criminal law context, the manner in which ADR changes the way in which law is practised, and (...) the associated ethical challenges confronting the legal profession. (shrink)

This paper considers the development and judicial application of the Public Sector Equality Duty now found in section 149 Equality Act 2010, previously in a variety of forms in the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975. It identifies a number of emerging themes in the jurisprudence concerned, in particular, with the relationship between the PSED and Wednesbury review, the extent of the information-gathering obligation it imposes, the delegability of PSED decision-making and (...) the timing of PSED challenge. It then considers the uncertainties which remain including, in particular, the application of the duty to various categories of decision-making, and concludes by assessing the impact of the PSED on challenges to ‘cuts’ cases arising from the reductions to public sector funding, and on domestic equality jurisprudence. (shrink)

In this paper I examine cases in which we attach different meanings to words and in which we litigate or argue about the best way of defining the term in dispute. I reject the idea that this is just a matter of imposing our will on our interlocutors – I think that the process of litigation is normative. To some extent recent work in the theory of argumentation has shed considerable light on this process, but we will need to (...) retrofit that work for the kinds of considerations we are engaged with here. I’ll begin in Section 1, with some important terminological preliminaries. Then in Section 2, I will offer a general description of how we come to notice that there are disputes about meaning and how we engage the meaning variance once it is recognized. In section 3 I’ll then take up a case that is relatively less controversial – the definition of ‘planet’ – and use it to construct a model for our meaning litigation works. Finally, in section 4 I’ll then turn to more contentious and substantial issues – the definition of ‘rape’ and the definition of ‘person’ and begin exploring how disputes about the meanings of those terms can be normative and fail to be normative. (shrink)

The speaker of Demosthenes 56 had lent money to a ship-owner Dionysodorus for a commercial voyage, and now is prosecuting him for breach of contract. The prosecutor is usually thought to be a metic. In the course of the speech he does not identify himself; but Libanius in his Argumenta of Demosthenes supplies a name, Darius: Arg. 54.1 Δαρεῖος καὶ Πάμφιλος Διονυσοδώρῳ δανείζουσι and 2 ὡς δὲ Δαρεῖος λέγει. The manuscripts of the Argumenta, which begin in the tenth century, are (...) numerous; Foerster and Dindorf/Blass cite no variant for the name. Libanius’ source for this information is unrecoverable. (shrink)

One less obvious impact of legal bilingualism in a postcolonial jurisdiction like Hong Kong is an increasing trend of unrepresented litigants. Since their lack of legal knowledge often places them at a disadvantage and poses numerous problems in court, the government has established the resource centre for unrepresented litigants to offer them information about legal procedure. This paper evaluates the usefulness of the Chinese official reference materials at the centre in equipping laymen for civil litigation. As a first point (...) of contact between unrepresented litigants and the law, these leaflets have a direct impact on the users’ understanding of litigation procedures and their courtroom performance. This paper argues that the leaflets suffer from two major problems: incomprehensibility of language and lack of structure. Problems involved in include inconsistency in terminology, problematic translation, and language complexity arising from the use of odd collocation, unusual words, difficult legal terminology and confusing parts of speech; whereas in , information is found to be scattered and disorganised. To improve readability, the paper suggests using plain language, and providing checklists of documents, and a legal glossary. Cross-jurisdiction practices will be examined to show how unrepresented litigants’ access to justice may be facilitated. (shrink)

Opioid litigation continues a growing public health litigation trend in which governments seek to hold companies responsible for population harms related to their products. The litigation can serve to address gaps in regulatory and legislative policymaking and in market self-regulation pervasive in the prescription opioid domain. Moreover, prior opioid settlements have satisfied civil tort litigation objectives of obtaining compensation for injured parties, deterring harmful behavior, and holding certain opioid manufacturers, distributors and pharmacies accountable for their actions. (...) In this way, opioid litigation represents progress over prior public health litigation campaigns involving tobacco, lead paint, and asbestos, which had more limited tort litigation effects. Although opioid litigation is not a comprehensive solution to the opioid crisis, it can complement other strategies and infuse much needed money, behavior changes, and public accountability for prescription opioid and related harms. (shrink)

The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic, and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision making. Looking abroad, the essay (...) emphasizes public law litigation as a meditative institution that facilitates political action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration. Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and the ubiquity of complex, not dichotomous, relations. (shrink)

Since its enactment, the Affordable Care Act has faced numerous legal challenges. Many of these lawsuits have focused on implementation of the law and the limits of executive power. Opponents challenged the ACA under the Obama Administration while supporters have turned to the courts to prevent the Trump Administration from undermining the law. In the meantime, Congress remains gridlocked over the ACA and many other critical health policy issues, leaving the executive branch to adopt its preferred policy approach and ultimately (...) leading to lawsuits. This article briefly discusses the history of litigation over the ACA and some reasons why this litigation has been so enduring. The article then identifies other areas of health policy that are or could be future targets for litigation. Finally, the article comments on the potential impact of the courts on future health reform efforts. (shrink)

This article deals with issues of litigation based on claims of personal injuries. It briefly describes the way that economists have tended to think about the “litigation process.” It discusses a number of areas of empirical work. It begins with case outcomes and looks at the ways in which the legal system itself can influence matter through the encouragement of information transfer and the rules used for allocating legal costs. It considers the role of lawyers by looking at (...) the effects of different legal fee arrangements on case outcomes. Furthermore, it discusses the liability-based legal system that produces the deterrence benefits often claimed for in conceptual work. The deterrent potentials of liability-based litigations are subject to objective and subjective contexts of the injurer. Finally, the article concludes that alternative means such as the “no fault” scheme that allots compensation irrespective of personal fault of the accused, require greater analysis. (shrink)

The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by July 26, 2015. The claim of the well-known reservations concerns the potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from “opt-out” class action procedures. The Article posits that apart from that claim, at bottom there may be some danger that the European Commission and private interest-groups may try to pursue the (...) enforcement of their regulatory agendas in this way at the expense of individual claimants’ interests. However, in contrast to the situation in the United States, the need to complement regulatory enforcement by collective action may not appear as strong because of the relatively strict regulatory control and enforcement, which may explain EU Member States’ longstanding reluctance to adopt collective proceedings due to their concern for plaintiffs’ individual rights. Therefore, a comparative analysis is carried out to see to what extent individual rights as opposed to regulatory goals are taken into account in the different newly revised systems in place across Europe. As an interim result, the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to dealing with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised as to how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe. (shrink)

Human rights arguments have been successful before several domestic courts across Europe in imposing more ambitious action in cutting greenhouse gas emissions upon governments. Yet, the integration of climate justice concerns in those judicial decisions have been insufficiently studied. This paper seeks to contribute to such endeavor by analyzing the cases of Urgenda v. The Netherlands, Klimaatzaak v. Belgium and Neuebauer v. Germany against the climate justice framework. In Part One we set out our analytical framework. A climate justice approach (...) acknowledges that climate mitigation, like the effects of climate change itself, is distributional in nature. In particular, climate justice highlights the unequal distribution of burdens and benefits across three dimensions: international (justice between states); intergenerational (justice between generations); and intragenerational (justice between social groups along socio-economic, racial and gender determinants). In Part Two, we offer a close reading of three key rights-based mitigation decisions to evaluate how judges have accounted for the various dimensions of climate justice. Detailing the contrasted approaches of climate justice in those decisions, we also point to a common reluctance to engage in intragenerational justice reflected in the failure to fashion rights-based obligations which take into account the inequalities across communities and social groups. (shrink)

Legal mobilization in the courts and in political discourse has emerged as an increasingly important strategy of social movements that complements other political approaches. This is true also for women’s movements in post-socialist countries, but most research on strategic litigation has focused so far on common law countries and on supranational litigation in Europe. Using the case of Poland as an example, this article asks why references to the law are so attractive in post-socialist contexts and what can (...) be gained by this with respect to actual rights, justice and social change. It focuses thereby on strategic litigation as the most sophisticated strategy that results from other sustained movement activities connected with the law. It draws on field research, interviews with activists and analyses of primary as well as secondary sources. The article explores the reasons for using the law as the ‘master frame’ by analysing the traditions of gender and law in state socialism and during democratic consolidation. Two examples of strategic litigation, the Tysiąc case for reproductive rights and the ‘Biedronka’ cases for employment rights, are analysed and situated in the context of other legal mobilization activities. These cases set the agenda for crucial social problems and resulted in binding decisions by the courts. A broad and predominantly supportive media discourse was conducive to cultivating public opinion. These analyses support the conclusion that legal mobilization tends to directly influence law and legal practices. It has a socializing effect on the population and their legal consciousness. In aiming at both state and society, these legal strategies of the women’s movement are a modest but crucial success for democratic consolidation. (shrink)

The aim of this study was to review the typical factors related to physician’s liability in obstetrics and gynecology departments, as compared to those in internal medicine and surgery, regarding a breach of the duty to explain.

Victoria’s Model Litigant Guidelines aim to regulate the conduct of government parties in civil disputes in a manner that goes beyond the ethical duties of ordinary litigants. Despite the sheer number of disputes involving the Victorian government to which the regime applies, little academic attention has been given to Victoria’s MLGs. The article explores the nature and extent of the regulatory force exerted by the MLGs by applying regulatory theory to the MLG regime. Particular attention is given to applying Ayers (...) and Braithwaite’s theory of Responsive Regulation that includes situating the guidelines within their regulatory pyramid. The analysis finds that in the absence of a distinct regulator, the MLG regime is predominantly self-regulatory. The responsiveness of the MLGs appears to be restricted owing to an absence of public involvement in the MLG regime. The article also highlights that likely challenges to the MLG regime as a mode of regulation include the nature of the regulatory context, the decentralisation of government services, the lack of publicly available information on the government’s adherence to the MLGs and the content of the MLGs themselves. (shrink)

This article deals with issues of litigation based on claims of personal injuries. It briefly describes the way that economists have tended to think about the “litigation process.” It discusses a number of areas of empirical work. It begins with case outcomes and looks at the ways in which the legal system itself can influence matter through the encouragement of information transfer and the rules used for allocating legal costs. It considers the role of lawyers by looking at (...) the effects of different legal fee arrangements on case outcomes. Furthermore, it discusses the liability-based legal system that produces the deterrence benefits often claimed for in conceptual work. The deterrent potentials of liability-based litigations are subject to objective and subjective contexts of the injurer. Finally, the article concludes that alternative means such as the “no fault” scheme that allots compensation irrespective of personal fault of the accused, require greater analysis. (shrink)