Modelling appellate courts’ responses in motor injury disputes

Motor third-liability insurance is compulsory in the European Union. We examine the behaviour of Spanish appellate courts in the context of motor liability insurance and pay particular attention to four characterising features. Specifically, we investigate (1) how the appellate court interprets the rules for updating the financial compensation when the courts’ ruling is made in a different year to that in which the motor accident occurred; (2) the response of the appellate court when its legal medical evaluation differs from the court’s decision; (3) whether the appellate court modifies the criteria when the insurance company was not charged with interest for delaying payment in the first instance; (4) whether the fault allocated by trial courts is revised by the appellate court. We apply a multi-categorical selection mechanism to deal with samples that are potentially non-random. This allows us to separately consider the characteristics of victim’s and the insurer’s decisions to appeal. The results indicate that disputing agents have significantly different appeal functions, where insurers show a more effective and consistent behaviour than victims.     

The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

The Tarasoff dilemma in criminal court.

The duty to protect, or Tarasoff duty, has been conceptualized as arising solely in the context of a clinical setting. A recent California Supreme Court ruling in People v. Clark adds legal, clinical, and ethical dilemmas to the oftentimes contentious Tarasoff issue. Though the Tarasoff issue is but a minor legal point in Clark, a possible consequence of Clark is that a Tarasoff warning could be deemed nonconfidential and admissible in a criminal trial. Psychotherapists could therefore be testifying in criminal courts as prosecution witnesses. While the possibility of a chilling effect on patients' disclosure of violent ideation in the context of psychotherapy first caused apprehension after the California Supreme Court's 1976 decision in Tarasoff v. Regents of the University of California, this same Court's ruling in People v. Clark some 14 years later may ensure that this fear finally becomes realized.     

New York Lead-Paint Case Update

The contaminated water supply in Flint, Michigan, highlighted lead issues in a relatively new context: drinking water. Lead-paint lawsuits, however, have filled court calendars for many years in many jurisdictions. This article examines a variety of recent lead-paint decisions issued by courts in New York—from trial level, to appellate, to the state's highest court, the New York Court of Appeals. As these cases suggest, lead-paint complaints against landlords and property owners are likely to continue to be filed in New York courts for quite some time to come.     

Stone v. Powell: The impact on state appellate court judges' perceptions

This study addresses the question of whether the United States Supreme Court decision of Stone v. Powell, 428 U.S. 465 (1976), has had a significant impact on the highest level state appellate courts. The study centered around a survey sent to every member of the highest appellate court hearing criminal appeals in each of the fifty states. The major finding of the research was that Stone v. Powell can be viewed along two dimensions: a narrow, substantive dimension applying the case as a Fourth Amendment exclusionary rule decision, or a broader, policy dimension of judicial federalism. It appears that, for the most part, state supreme courts have chosen to apply Stone v. Powell along the narrow, substantive dimension. Thus, state supreme courts have not assumed the position of equal partners with the federal courts in assuring adequate and appropriate disposition of federal claims.     

Woman to woman marriage and cognates in Nigerian law: an easy coalition between customary law and human rights

This article argues that when conceived as an adoption mechanism rather than a marriage simpliciter, the woman to woman marriage common in parts of Nigeria becomes juridically explicable, and with it, several other cognate customary law arrangements which have proved challenging to scholars and adjudicators historically as well as in recent appellate court jurisprudence. Thus reconceived, the woman to woman marriage and its cognates assail the negative appellate court jurisprudence thereon and their ramifications become amenable to exposition in ways that evince the genius of the arrangement and its designers’ ingenuity.     

California expands the duty to warn patients exposed to and infected with HIV. Reisner v. Regents of the University of California

There is still no general definitive guide for hospitals and other health care providers concerning the extent of their duty to warn third parties of a patient's HIV status. However, even in states like California that have statutorily eliminated any duty to directly inform third parties, the Reisner case clearly indicates that liability to third parties may arise indirectly based on a failure to warn HIV-exposed or -infected patients of their status and the risks of communicating the virus to others. Accordingly, health care providers should take several actions: 1. Ascertain, with the assistance of legal counsel, the precise dictates of applicable state statutes and case law regarding (a) a provider's obligation to warn HIV-exposed or -infected individuals of the potential of communicating the virus to others; (b) additional statutory requirements such as notification of public health authorities; and (c) whether notice to third parties at risk of exposure from the patient is required or even permitted. 2. Develop and implement written policies regarding notification and counseling of exposed or infected patients, including counseling patients on the risks of communicating the virus to third parties; and 3. Develop and implement written policies regarding permissive or mandatory notification and counseling of exposed or infected third parties. In this context, providers should be aware that patient confidentiality and privacy laws may prohibit disclosure of the identity of exposed or infected patients to third parties.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Judicial Review of Local Land-Use Decisions in California

The California courts have a reputation for sustaining local land-use controls where no other state court would do so. The reputation was certainly deserved prior to 1966, when courts still presumed that necessary findings to support a variance had been made and that the findings were properly supported. Prior to that time no appellate court had ever reversed the grant of a variance. This was changed, however, by Cow Hollow Improvement Club v. Dibene, 245 Cal. App. 2d 160;53 Cal Rptr. 610 (1966) and Broadway, Laguna, Vallejo Assoc. v. Board of Permit Appeals, 66 Cal.2d 767, 59 Cal. Rptr. 146,427 P.2d 810 (1967). Thereafter, where the ordinance required specific findings, findings on each of the standards for a variance had to be made and each had to be supported by substantial evidence. This standard was extended to the granting of conditional use permits and other major work of the zoning board of appeals in Stoddard v. Edelman, 4 Cal. App. 3d 544, 84 Cal. Rptr. 443 (1970). Cautious attorneys who recommended that such standards be applied even if not specified in the ordinance were also vindicated recently by Topanga Assoc. for a Scenic Community v. Los Angeles, 113 Cal.Rptr. 836 (1974).     

美国无救助义务规则的修正

无救助义务是美国传统侵权法上的一项重要规则。由于社会组织结构的精细化使人与人之间的关系更加紧密了,容易出现牵一发而动全身的局面,如果还任由人们对他人的困境无动于衷可能会造成无法挽回的严重后果,加之作为与不作为的区分越来越小,故美国选择了一条侵权过失责任的改良道路,主张不作为不应该成为被告承担过失责任的障碍。而美国的司法判例和立法经验也告诉我们,一般无救助义务规则正经受两方面的侵蚀:一是扩大特殊救助义务的范围;二是通过制定法律承认一般救助义务。     

Type of counsel and the outcome of criminal appeals: A research note

Previous studies have focused on type of counsel and case outcome at trial court, but only a few have done so at the appellate level. The purpose of this research note is to provide some insight into the influence of type of counsel on the out-come of criminal appeals. Results indicate that in criminal appeals from two Florida trial courts to an intermediate appellate court type of counsel was non-significant in predicting the court’s decision. The implications of the findings are discussed.     

A Tarasoff for Europe? A European Human Rights perspective on the duty to protect

It has long been recognised by British courts that a psychiatrist can be permitted to depart from his/her duty of confidentiality, in order to issue a warning where a patient is deemed to present a real and serious threat to other parties. Until recently, however, it seemed that s/he would not be bound to give such a warning, or to take other steps to protect third parties. The approach adopted throughout much of the USA, and famously expounded in the Tarasoff judgment, appeared to have no relevance to British law. This article considers the possibility that the European Court of Human Rights' ruling in Osman v UK may be set to bring about a radical change in this respect, introducing something akin to the Tarasoff approach into the UK, and indeed throughout Europe. As well as the possible legal basis for such a duty, and the circumstances in which it would arise, it will consider how a psychiatrist might reconcile any such duty with other, more established, legal and ethical duties.     

Elder abuse and neglect cases reviewed by appellate courts

With increasing attention focused on abuse and neglect of the elderly in domestic and institutional settings, nearly every state has passed legislation to protect these vulnerable adults. While the legal system has become involved at the trial court level, the appellate courts have not yet been very active. Only ten reported cases in the United States during 1981–1993 were appealed to a higher court. This article documents these few cases and explores the reasons for their ultimate dispositions.     

Assumption of Responsibility in Corporate Groups: Chandler v Cape plc

In Chandler v Cape plc, the Court of Appeal imposed for the first time liability on a company for a breach of its duty of care to an employee of its subsidiary. In doing so, the court laid out a new four‐part test for ascertaining a parent company's responsibility for the health and safety of individuals employed by group companies. Although liability of parent companies may be justified under the right circumstances, the court's approach in Chandler is problematic in a number of ways and raises more questions than it answers.     

违反安全保障义务侵权行为的赔偿责任探析

公共场所、宾馆、学校等从事经营活动或其他社会活动的人,违反安全保障义务而给消费者或其他社会大众造成人身、财产损失的行为,是一种不作为侵权行为,经营者必须对此后果承担赔偿责任。经营者承担赔偿责任必须符合一般侵权行为民事责任的构成要件。承担责任的形式可能是直接责任,也可能是补充责任。     

Human Dignity and Socio-Economic Rights

The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers.     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal

The work of state intermediate appellate courts is often described as “correcting legal errors” and “supervising” trial courts. But what do these labels mean in practice? This article explores the intermediate appellate process through a study of criminal appeals in a California Court of Appeal. Part I describes the characteristics and dispositions of criminal appeals. Contrary to popular impression, a conviction was reversed in only about 5 percent of these appeals. To explain the low reversal rate, part II draws upon interviews with justices of the Court of Appeal to examine the institutional norms and perspectives guiding the court's decisions. The basic decision norms described by the justices are norms of affirmance: for example, the harmless error rule and the substantial evidence rule incline the court to affirm despite certain legal errors or factual questions. Moreover, the particularistic approach the court typically takes in its decision making apparently sensitizes it to the substantive characteristics prevailing in criminal appeals: the crimes are serious and there is little doubt about factual guilt. The low reversal rate and the analysis of the court's norms suggest that intermediate appellate review of criminal convictions is narrower and more constrained than the “error correction” and “supervision” labels imply. Part III explores the implications of the case study for appellate policy.     

Improving APA science translation amicus briefs

This commentary uses APA's brief inPrice Waterhouse v. Hopkins to examine a number of issues concerning such briefs submitted to appellate courts: What are the purposes of APA's science translation briefs? What role conflicts emerge between legal advocates and empirical scientists? In what ways are these exacerbated or lessened by the respective duties of advocates and scientists? In what ways may the conflicts be compelled by differences between legal and empirical questions? How adequate are Brandeis briefs as a tool for communicating empirical research findings to appellate courts? Are any of the usual adversarial protections maintained? What is the question the court might look to the brief, and to the field, to answer? What is the role for meta-analyses? For what interests might APA as an amicus advocate? In addition to organizational self-interest and the public interest, does it ever make sense to advocate, in a purported science translation brief, on behalf of an ultimate issue in the case or for one of the parties to the litigation? To these difficult problems, I suggest a potentially simple solution.