Image construction versus empirical evaluations: automobile safety

The present study expands upon earlier work examining advertising as it relates to the construction of safety-related images in the automobile industry. Comparisons are made between automaker portrayal of vehicle safety in magazine advertising and their real-world safety-related performances. Such an analysis enables suggestions regarding, whether or not, the extent to which particular automakers demonstrate a misleading concern for safety and potentially produce false advertisements that violate the standards of law. In this sense, misleading claims related to automobile safety could be considered corporate deviance, particularly in relation to false advertising practices. This paper examines safety and vehicle marketing, a noted gap in recent literature, by looking at three magazine publications over the course of five?years and comparing the marketing strategies and assessing the extent to which automaker crash test evaluations correspond with their socially constructed, safety-based image. Our findings suggest that automakers are largely accurate in their advertising practices with regard to promoting and supporting safety claims.     

Insurance Should Be a Company's First Line of Defense Against the Wave of Public Nuisance Claims

When plaintiff attorneys and State Attorneys General obtained nearly half a trillion dollars in settlement asserting that tobacco companies had created a public nuisance, public nuisance became a popular new litigation weapon. For example, public nuisance claims have been brought against companies for their alleged contribution to global warming. Whatever the merit of such claims—indeed many public nuisance claims have been defeated—defendant companies should consider what insurance assets they have to aid their defense against even groundless nuisance claims, and, if necessary, to indemnify them against any judgment or settlement. It is helpful that courts nationwide favor liberal insurance language interpretations to protect insureds against, among other things, changes in tort law enlarging potential liability exposure.     

A Primer for Prospective “Secondary and Premises” Asbestos Defendants

Given the current state of the asbestos litigation, the potential for tort reform, and new information regarding past asbestos claim history, many companies are for the first time assessing their potential asbestos liability. To reduce the impacts of asbestos claims, these companies are evaluating decisions regarding past insurance settlements for environmental liabilities and carve-outs for asbestos liabilities, pursuing insurance coverage for past and future asbestos claims, prioritizing asbestos litigation and settlement strategies, and strengthening asbestos-related disclosures. Model estimates of future impacts of asbestos liabilities can be developed by assessing past claimant information, identifying past asbestos use, population and occupations exposed (worker and bystander), and accounting for future claim runoff. These model estimates can incorporate probability distributions to account for ranges in uncertainty based on published references as well as uncertainties defined by site- or claimant-specific data. By accounting for uncertainty and updating the model as new information becomes available, companies can proactively assess the past, present, and future impacts of asbestos on the company.     

The Logics of Supranational Human Rights Litigation,Official Acknowledgment,and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006

This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.     

Food Fraud and the Partnership for a ‘Healthier’ America: A Case Study in State-Corporate Crime

At a moment of heightened public concern over food-related health issues, major corporations in the food industry have found their products and practices under scrutiny. Needing to be understood as socially responsible, these corporations have established partnerships with the state to construct a positive, proactive, and cooperative public image. One major public–private partnership that evolved from former First Lady Michelle Obama’s Let’s Move initiative—the Partnership for a Healthier America—serves as a case study in this paper, which analyzes the consequences and social harms perpetuated by a public health campaign bound by the imperative to maximize profit. By using trusted state actors to deliver accurate but deceptive claims about food companies’ commitment to public health, this public–private partnership actively misleads the public and potentially exacerbates public health challenges, warranting a skeptical revision of how we understand corporate social responsibility and neoliberal governance on issues of health and nutrition. As a form of fraud, these attempts to mislead the public go beyond the actions of public sector individuals or members of corporate boards, but are structurally incentivized by the legal rights, regulatory privileges, and profit-related incentives central to the modern corporate form. While conventional criminological research tends to underemphasize state and corporate harms, we make use of a critical criminological perspective to analyze state-corporate partnerships in the space between food industry practices and public health policy.     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

国际法视野下的企业社会责任与劳工权益保护——兼论社会责任标准在我国的实施

企业社会责任运动要求公司尤其是跨国公司在参与市场竞争的过程中应承担其应尽的社会责任以保障基本人权和劳工权利。考查企业社会责任运动的发展及相关国际法律文件的规定、实施及影响,相较于我国法律的相关规定,企业社会责任标准并非高不可攀的道德苛求,只要我国建立起规范、明确的约束体系,切实实施劳动法等相关法律的规定,劳工权益得到切实维护,企业社会责任的标准也就基本达到了。     

Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal

This article examines a widely publicized corporate accountability and human rights case filed by Burmese plaintiffs and human rights litigators in 1996 under the Alien Tort Claims Act in U.S. courts, Doe v. Unocal , in conjunction with the three main theoretical approaches to analyzing how law may matter for broader social change efforts: (1) legal realism, (2) Critical Legal Studies (CLS), and (3) legal mobilization. The article discusses interactions between Doe v. Unocal and grassroots Burmese human rights activism in the San Francisco Bay Area, including intersections with corporate accountability activism. It argues that a transnationally attuned legal mobilization framework, rather than legal realist or CLS approaches, is most appropriate to analyze the political opportunities and indirect effects of Doe v. Unocal and similar litigation in the context of neoliberal globalization. Further, this article argues that human rights discourse may serve as a common vocabulary and counterhegemonic resource for activists and litigators in cases such as Doe v. Unocal , contrary to overarching critiques of such discourse that emphasize only its hegemonic potentials in global governance regimes.     

Green-Building and Renewable-Energy Insurance Claims: Where Are We Now?

What kind of insurance claims might arise out of clean-energy initiatives and the associated risks? This article examines these issues, including those associated with construction or conversion of so-called green buildings, e-waste, carbon sequestration, alternative fuels, and other environmental matters that continue to raise a host of novel issues. In addition to more traditional risks, e.g., changing and potentially contradictory energy-efficiency rules have become a litigation issue in Albuquerque and elsewhere. There are simple, practical ways to manage these various environmental risks and many insurance companies are responding with new coverage products. The elements and structure of these programs also provide insight into what kind of claims (and disputes) may arise.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

Environmentalism and the internet: corporate greenwashers and environmental groups

Environmental degradation is a serious problem, for current populations and for future generations. Corporations are the largest offenders but seldom face the consequences of their actions. This article proposes that public relations campaigns and conflicting information on the internet pose significant challenges to calling for environmental accountability from corporations. Three companies – Coca‐Cola, Georgia Pacific, and Shell – are examined here in terms of questionable practices and public relations campaigns. While the internet could be an alternative news source, ‘corporate greenwash’ muffles a definitive voice on environmental issues. Both retributive and restorative justice processes are thwarted by misleading information. Despite environmental laws and efforts to increase accountability, calling for necessary change will continue to be exceedingly difficult without public knowledge of corporate behavior.     

The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.     

E-Discovery of electronically stored information in commercial litigation

Much of corporate and business information is today created and stored in electronic format. Emails, software source codes, word processed documents, metadata, spreadsheets and other forms of electronically stored information (ESI) are easier than paper documents to manage, store, search and transfer. This has led to overwhelming volumes of ESI being produced and potentially discoverable in commercial litigation than is the case with paper documents. With the explosion of ESI, the law on discovery must stay abreast with new technology. Electronic discovery (e-discovery) is an evolving field giving rise to unique challenges. This paper discusses how Singapore has responded to these challenges through updated rules of discovery and recent court decisions. These latest significant developments reflect consistent efforts to keep pace with modern technology and global trends on e-discovery in commercial litigation.     

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.     

Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan

Drawing on ethnographic fieldwork in Sudan, this article illuminates the consequences of human rights educational workshops as a form of humanitarian assistance in war‐ravaged areas. These projects are built on flawed assumptions about Sudanese politics and about the likelihood that human rights education empowers the war‐ravaged poor. The beneficial impacts of human rights discourse stem from its side effects, which fulfill urgent and symbolic needs, and not from the core content of human rights. The case of an authoritarian regime exposes an alternative site of rights promotion, outside the established or struggling democracies where most literature on rights resides. Bridging the literature on rights in Western, democratic contexts and on human rights in Africa, this article argues that law is not enough—and is potentially dangerous—in the insecure and impoverished areas where the international aid community has been encouraging it to flourish.     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.     

Human Rights and State-Corporate Crimes in the Practice of Gas Flaring in the Niger Delta,Nigeria

This article addresses the social harm of gas flaring by petroleum companies in the Niger Delta, Nigeria and makes a conceptual case for human rights and state-corporate crimes. It outlines the human and environmental harms caused, the role of the state and Shell and other corporate entities in producing such harms, the disregard shown to the communities when concerns are raised about the effects on their health and livelihood, and the disrepute brought to the administration of justice. It also outlines the insecurity spawned in the communities in the Niger Delta as a result of these harms and the high level of impoverishment suffered despite the wealth generated since the discovery of oil in the 1950s, thus broadly contributing to the literature on green criminology.     

An introduction to the law and economics of class action litigation

The consolidation of similar claims for compensation into a single large class of plaintiffs is referred to as “class action litigation.” This practice can have both social costs and social benefits. For an example of the social benefits of consolidating separate claims, if the facts giving rise to the claims are substantially similar, then there may be significant savings in litigation and court administrative costs from presenting those facts once rather a multitude of times. There may, however, be significant social costs to creating a class of litigants and consolidating their claims. For example, this practice may empower those with frivolous negative expected-value claims to wring an unwarranted settlement from the defendant or defendants. The article surveys other sources of social cost and benefit from class-action litigation, reviews the empirical literature on these actions, and examines recent U.S. policy debates about reforming class-action litigation. The article concludes that class-action litigation can have substantial net social benefits but only if courts assiduously oversee the class certification process so as to identify and forestall the social-cost-generating aspects of class-action litigation.     

论我国消费者权益诉讼机制的建立

目前，从实体法方面来说，我国已经初步形成了消费者权益保护体系，然而在程序法构建上却相对滞后。在现代型诉讼的视角下，美国、德国和我国台湾地区的这一领域的经验都有值得借鉴之处。我国的代表人诉讼制度应用于消费者权益诉讼领域存在一些有待改进的问题。在改进这一现行制度的基础上建立消费者小额诉讼和团体诉讼制度，应该作为构建我国消费者权益诉讼机制的重要内容。