Delineating and derogating constitutional rights in Trinidad and Tobago

This article examines the approach taken by courts in Trinidad and Tobago when analysing the Parliament’s power under section 13 of the Constitution to derogate from constitutionally guaranteed rights protected under section 4. The author analyses inconsistencies in the tests applied by the courts over the years in various cases and considers a different approach that could be adopted in order to protect citizens’ rights while having due deference to the Parliament’s power to legislate.     

In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility

A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health crisis was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy‐making process. Indeed, once one considers informational and political constraints, as well as how the branches of government can fruitfully share policy‐making functions, the asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power.     

Applying antitrust law to nonprofit healthcare entities: arguments for a greater attention to detail

This Article begins with an antitrust primer, then analyzes the appropriate application of antitrust principles to nonprofit healthcare providers. In light of the inherent charitable character of nonprofit healthcare providers, the author contends that the government and the courts should accord some deference to nonprofit hospitals when they are seeking approval of mergers. To date, this has not generally been the case, although a few recent court decisions have rested their approval of mergers, in part, upon the nonprofit character of the merging entities. The author, in particular, believes the paradigmatic local nonprofit hospital with a community board is less likely than a for-profit hospital to abuse any market power that it may obtain through a merger; consequently, any such merger should not be analyzed solely under the traditional presumptions of antitrust jurisprudence. Rather, the premerger analysis should involve meaningful consideration of the hospital's charitable character.     

论我国立法和司法对法定外在标准的过度依赖——以我国医疗损害责任鉴定与诉讼实践为例

我国法中存在着在侵权法问题的判定上过度依赖"法律法规"、"行业标准"和"诊疗规范"的倾向。这些"外在"标准替代了法官对法律"内在"规则的审视和适用。行业标准替代了法律标准。比如,在医疗过失判定标准上,法官过度依赖"诊疗规范",忽视了基本法律标准——注意义务违反说和"合理医生"标准——的探寻和适用。我国法应纠正此种现象,注意对法律规则,比如医疗过失和因果关系判定规则的细心构建,以给法官具体指导。"法律法规"、"行业标准"和"诊疗规范"在侵权法中是判定过失的重要标准,但不是终局性和根本性标准。     

From tobacco to health care and beyond--a critique of lawsuits targeting unpopular industries.

The 1998 settlement between state Medicaid agencies and the five major tobacco companies heralded a new form of litigation in which individual or government plaintiffs allied with private class action attorneys use economic, political and moral leverage to extract huge settlements from entire industries. Beginning with several class action suits filed in late 1999 against managed care companies by aggrieved HMO enrollees, and continuing with government suits against the paint and handgun industries, this new form of litigation has become a powerful vehicle for plaintiffs to punish unpopular--but entirely legal--industries. In this Note, the author demonstrates that the popular appeal of these suits conceals legal theories of recovery that probably could not survive courtroom scrutiny. The author argues that the thin legal merits of these class action claims are often tolerated by courts, who urge settlement in order to clear their dockets, and by the industries, who regard settlement merely as a cost of doing business. The author concludes that the tobacco litigation and its progeny encourage citizens and the executive branches of government to seek restitution and fundamental social change in the courts after losing in the legislative arena, thus forcing the judiciary branches into the unwise and improper role of policymaker.     

Cost-effectiveness analysis in the courts: recent trends and future prospects

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.     

From Rogers to Rivers: the rights of the mentally ill to refuse medication

Many individuals with mental illness wish to avoid psychotropic drugs, a type of treatment that may relieve their symptoms only at the risk of unpleasant, even permanent, side effects. In marked contrast to the widely-held view that most patients may refuse any treatment and that even patients with mental illness may reject other psychoactive interventions such as electroconvulsive therapy and psychosurgery, the courts and legislatures have been slow to recognize any right to refuse psychotropic drugs. This Article demonstrates that many of the justifications offered for forcing patients to take unwanted medications are inadequate and that unless treatment refusals are reviewed outside mental institutions, patients' rights will rarely receive appropriate deference. The author analyzes the federal and state litigation to determine whether the courts have fashioned meaningful relief for the mentally ill. The Article concludes that two recent United States Supreme Court decisions have made it impossible for the federal courts to provide adequate protection. By contrast, several state courts have responded to the needs and rights of patients with mental illness.     

Deference on Questions of Law

Contrary to the modern English position, it may be appropriate for reviewing courts to accord deference to interpretations of law rendered by administrators. There is no basis for the current strong presumption against according such deference. It is possible that the legislature intended to delegate the resolution of many questions of law to administrators, rather than to courts. Moreover, relative to administrators, courts may lack institutional competence to resolve questions of law. Courts must always police the boundaries of interpretation, in order to keep administrators in check and safeguard the rule of law, but the general presumption that the resolution of questions of law is a matter for courts should be jettisoned.     

Pluralism,Deference and the Margin of Appreciation Doctrine

In this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.     

Legal obligation as a duty of deference

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford.     

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.     

Judicial Responses to Bright Line Rules in Social Security: In Search of Principle

This article considers judicial responses to the use of 'bright line' rules in social security law. It analyses, within the framework of judicial deference, the receptiveness of the judiciary to an argument by the executive that a rule is justified as being administratively convenient to operate. The article questions the proposition that the judiciary is at its most deferential when complex issues of socio-economic policy or resource allocation are raised in the context of social security law. A contrast is drawn between cases involving an issue of statutory interpretation and those applying a proportionality test. The article tests the presumption that a difference in approach should be discernable in these two situations. It concludes by criticising the courts for failing to articulate clearly the values at stake and by arguing for the need for greater transparency and a broader public debate concerning the use of bright line rules.     

The Limits of Senatorial Courtesy

Because of senatorial courtesy, scholars typically assume that presidents defer to home state senators from their party when selecting judges for the federal courts. We challenge this view, arguing that presidents face structural incentives that encourage them to consult broadly with senators across the partisan and ideological spectrums in choosing nominees. Using new data on the fate of judicial vacancies on the federal district courts between 1947 and 1998, we show how institutional and political forces increase interested senators' leverage in choosing federal judges. Senatorial courtesy, we conclude, has its limits, given presidents' incentives to consult with institutionally empowered senators in selecting nominees.     

FAMILY COURTS

Oregon has encouraged experimentation with family courts using the one family-one judge approach. At the First Annual Family Law Conference, sponsored by the Oregon Judical Department and the Oregon Family Law Advisory Committee, the author presented a keynote talk addressing the "ethical" issues raised by the use of comprehensive family courts. In this adaptation, the author places the concept of family courts in historical perspective and then assesses the rationale for them and the policy trade-offs involved, as well as possible procedural safeguards. Consolidated family courts using judical specialists dealing with multiple interrelated parties and integrating an array of social services appear to offer a better approach to related party cases. The author concludes that the benefits outweigh the speculative risks.     

Higher Education Loans and Tax Evasion: A Response to Perceived Unfairness

Australian higher education funding policy has been a contentious and emotionally charged topic on the political agenda since the introduction of the Higher Education Contribution Scheme (HECS). Under HECS, students have options either to pay upfront or defer payment. This article examines the implications for the Australian Taxation Office, which has responsibility for debt collection among students who defer HECS payments. Results show that HECS debt undermines tax compliance directly, and indirectly through perceived injustice. The path model demonstrates how perceptions of government policy can shape cooperation with government in other spheres.     

Price competition in hospital markets: the significance of managed care

Anticompetitive conduct in the healthcare industry is often hard to detect, and has been ignored by some courts that appear to lack an understanding of managed care and its significance in maintaining price competition. These courts have adopted an approach that is far too historical and mechanistic, and is characterized by outdated factors analyzed in isolation from each other. In order to preserve effective price competition, the courts should embrace a realistic analysis that accurately reflects the workings of health services markets. This article describes the many facets of market power and anticompetitive conduct, and how they affect healthcare prices. The author then tums to an analysis of two recent hospital antitrust decisions, and critiques them for their failure to properly analyze the dynamics of local hospital markets.     

Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.     

ADMINISTRATIVE FOXES IN EDUCATIONAL CHICKEN COOPS: An Examination of the Critique of Judicial Activism in School Desegregation Cases

Recent arguments against the use of the courts as a route for fashioning and implementing complex school desegregation plans are evaluated in light of the experiences of one district where the courts and federal government did not assume an active role. The political consequences of nonenforcement are explored as are the methods employed by school officials to maintain their control over educational policy-making. On the basis of this evidence, the author argues that an assertive judiciary is necessary, if desegregation policies and procedural reforms are to be successfully introduced.     

The right to refuse treatment: An application of the economic principles of decision-making under uncertainty

When courts do not defer to professional judgment, alternative ways must be used to make treatment decisions for persons who are deemed incompetent. Rather than impose the preferences of society on the mentally ill individual, courts have favored alternative procedures. The two most common approaches are substituted judgment and best interests. In using both the substituted judgment standard and the best interest standard the guardian of a patient who is judged incompetent to make a treatment decision tries to make the decision the patient would have made, had he been competent. The guardian must consider the individual's attitude toward risk in making this assessment. Substituted judgment can be used when clear and convincing evidence of the patient's preferences exists. The evidence would come from a study of the patient's expressed attitudes towards medical treatment and behavior before he or she became incompetent. This approach is effective only if the patient has revealed his or her preferences toward relevant medical treatment in the past. The best interest standard is used when no clear and convincing evidence of the patient's treatment preferences exists. The treatment decisions of competent patients whose characteristics are similar to the incompetent patient's, and who have faced a similar situation, can be used as a proxy for the decision the incompetent patient would have made. Using the choice function of similar people may make it possible to develop a reasonably objective basis for determining what course of action is in the patient's best interest.     

The Politics of Appointment and the Federal Courts'Role in Regulating America: U.S. Courts of Appeals Judgeships from T.R. to F.D.R.

Historians and political scientists have noted that appointments of judges to the U.S. Courts of Appeals are not determined by senatorial courtesy alone. What has not been adequately explained is why and when a president defers to a senator's choice rather than seek to control the selection. This article attempts to understand the politics of federal appellate court appointments. The author first identifies a major change in the work of the courts of appeals during the years 1900-1945—the growth in review of the actions of newly created federal regulatory agencies. Then, by examining Justice Department files and presidential correspondence, he discoveres three patterns of appointment emerging in the same period. The patterns vary with presidential perceptions of the role of the federal government and of the courts of appeals' ability to affect accomplishment of administration goals. Appointments during the first years of the presidencies of Theodore and Franklin Roosevelt and during the Harding and Coolidge administrations were dominated by patronage concerns. Those administrations yielded to the recommendations of senators and demonstrated no interest in the policy-making potential of these courts. In the two other patterns the White House played a more active role, with senators more often deferring to the president's selection. Concerns about professionalism dominated selections in Taft's and Hoover's administrations: because they recognized the policy importance of those judgeships but saw the role of government as limited, they sought judicial craftsmen who would make policy only incrementally. Policy concerns dominated selections during Wilson's administration and the latter years of both the Roosevelts' administrations: Justice Department officials screened nominees to determine their policy orientation, because federal appellate court judgeships were perceived as crucial policy positions that could affect the president's ability to implement his reform programs.