Courting the Environment – A Comparative Analysis

Statutory interpretation is of central importance to the daily work of all judges. This paper explores the reasons why statutory interpretation is necessary and then considers how judges have explained the way in which they carry out this task. It examines how judges consider the text, the context and the purpose of statutory provisions. It also looks at how human rights instruments can be used as an interpretive tool. It then considers the issue of whether judges can ‘fill in gaps’ in a legislative scheme and whether there is a Rubicon which judges cannot cross in the interpretive process.     

Protecting the Space Network and the Future of Self-Defense

The inherent right of self-defense is critical in protecting the United States (U.S.) space network from growing threats. The scope of this right is frequently questioned, and as applied to the space network, raises several questions. To what extent does the right of self-defense extend outside U.S. territory? Is it permissible under this right to defend non-U.S. registered space assets? What is the standard for establishing an “armed attack” in space? Is the intent of the attackers or the scope of the attack relevant in exercising this right in space? In a 2003 case from the International Court of Justice, the Case Concerning Oil Platforms, many of these questions were addressed, not in the context of a space war, but in the context of a factually analogous conflict, the Tanker War of the 1980s. The Oil Platforms case may be a harbinger for an international shift in the interpretation of the inherent right of self-defense in such a manner as to severely limit U.S. military options in response to an attack on it space systems. This is a shift the U.S. must be prepared to counter.     

Trilogy of Decisions Finds Insurers in Bad Faith

Insurance companies, even at their best, can be slow to respond to claims and to place what the insured regards as obstacles in the way of coverage. At their worst, as set forth in the cases discussed below, insurers can ignore their policyholders and violate their policy obligations. In all of these cases, policyholders are prone to shout “bad faith.” However, bad faith law differs dramatically from state to state, and is often unavailable as a remedy. The cases discussed below demonstrate a new willingness by the courts to hold insurers to their contractual obligations and to impose meaningful extra contractual damages for their failure to do so.     

Secondary education as a universal human right

Despite any international declarations to the contrary, basic education comes in practice to be conveniently regarded by governments as being synonymous with the level of schooling that the State stipulates is free and compulsory. Thus the operational definition of basic education is quite variable internationally and often does not include secondary schooling. Exacerbating the situation is the fact that international human rights instruments do not mandate that education be free and compulsory until the end of secondary school. However, these instruments do stipulate that the child's right to education involves the right to develop to their ‘full potential’. That is unlikely to occur for most children with less than secondary school completion as a ‘basic education’. It is argued here then that States have an obligation under international law to ensure access to inclusive school systems that facilitate secondary school completion by extending free, compulsory education to the end of secondary.     

Voluntary Greenhouse Gas Reporting—Not an Option for Much Longer

Based on the worldwide movement toward climate change, voluntary reporting of greenhouse gases is something every business—large and small—should consider doing now. Reporting makes sound business sense and will become mandatory in the US within the next few years. It provides a competitive advantage, baseline protection, input to new regulations, and preparation for emissions trading.

This article suggests that corporate officers have a fiduciary duty to voluntarily report. Not reporting could cost their companies money, unnecessary time catching up, reputation damage, and potential lawsuits from shareholders who believe that the corporate officers knew or should have known to investigate the issue and react.     

Deconstructing the Construction Defect Insurance Claim

This article provides a practical overview of the issues presented by a construction defect insurance claim. It begins with a discussion of establishing standing under the typical comprehensive general liability insurance policy, with a particular emphasis on additional insured issues. The article then describes the typical issues faced in proving an “occurrence” took place in the context of a construction claim. Thereafter, the article addresses the so-called business risk exclusions and their potential application in a construction defect case.