Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Restorative Justice as a Response to Sexual Offending – Addressing the Failings of Current Punitive Approaches

This article explores the use of restorative justice as a response to sexual crime. The management of high risk sex offenders, particularly in the community post-release, has been a key focus of contemporary popular and political debates on sexual offending. Many offenders fail to come to the attention of the criminal justice system. For those that do, there is the almost blanket application of recent control in the community measures such as sex offender registries and community notification which have failed to prevent reoffending. The response by the media and the public to the presence of sex offenders in the community may also impede offender rehabilitation. The use of punishment alone via formal criminal justice is, therefore, an inadequate deterrent for sexual crimes. Although controversial, this article advocates the use of restorative practices with sexual crime as a proactive, holistic response to the problem and ultimately as a more effective means of reducing the incidence of sexual offences and sex offender recidivism.

Once a Criminal, Always a Criminal?: ‘Redeemability’ and the Psychology of Punitive Public Attitudes

Several studies have sought to link punitive public attitudes to attribution style and/or lay theories of crime. This research finds that those who believe criminal acts are the result of freely chosen and willful behavior are more likely to be punitive than those who feel crime is the result of external circumstances and constraints. These analyses focus on only one dimension of attributions: locus of control (internal/external). In this analysis, we include a second dimension, thought to be a better predictor of attitudes in social psychological research: stability/instability. In addition to measuring lay theories of crime causation, we also test for “belief in redeemability” (or beliefs about the ability of deviants to change their ways). Our hypothesis is that this other dimension of personal attributions (stability/instability) may be as critical in explaining support for highly punitive criminal justice policies as beliefs about criminal responsibility. We find evidence supportive of this model in an analysis of data from postal survey of residents of six areas in England.

Disowning our shadow: a psychoanalytic approach to understanding punitive public attitudes

Punitive public attitudes cannot be easily explained by pointing to instrumental concerns (e.g., fear of crime, personal victimization, or rea or perceived levels of crime). Instead, numerous observers have suggested that public punitiveness is more a symptom of free-floating anxieties and insecurities resulting from social change than a rational response to crime problems. We argue that these public concerns might be better understood by drawing on the insights of psychoanalytic theory, and we review relevant theoretical work to that effect.

Safety and efficacy of recombinant alpha(1)-antitrypsin therapy in cystic fibrosis.

Neutrophil elastase (NE) is thought to be the most important protease which damages the cystic fibrosis (CF) lung. Attempts have been made to suppress this activity using the plasma-derived inhibitor, alpha1-antitrypsin (AAT). In this pilot study, the safety and efficacy of inhaled recombinant human AAT (rAAT) as a treatment for CF were investigated. Thirty-nine patients participated in a prospective, double-blinded, randomized, placebo-controlled phase II trial to examine the effect of rAAT (500, 250, and 125 mg) on sputum NE activity. Sputum myeloperoxidase (MPO), interleukin-8, tumor necrosis factor receptors, sputum and plasma NE/AAT complexes, and safety parameters were also measured. Subjects were randomized to receive nebulized treatment once a day for 4 weeks, followed by 2–4 weeks with no study treatment, and then a 2-week rechallenge phase. Trends toward a reduction in NE activity were observed in patients treated with 500 mg and 250 mg of rAAT compared to placebo. Sputum NE/AAT complex and MPO levels were lower on rAAT compared to placebo. No major adverse events and, in particular, no allergic reactions to rAAT were observed. Although significant differences between rAAT and placebo for sputum NE activity were not observed, some improvements were found for secondary efficacy variables. This study demonstrated that nebulized rAAT is safe and well-tolerated, but has a limited effect on NE activity and other markers of inflammation. Pediatr Pulmonol.

Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes

The International Court of Justice has issued its long-awaited decision in the suit filed by Bosnia and Herzegovina against Serbia and Montenegro with respect to the 1992–1995 war. The decision confirms the factual and legal determinations of the International Criminal Tribunal for the former Yugoslavia, ruling that genocide was committed during the Srebrenica massacre in July 1995 but that the conflict as a whole was not genocidal in nature. The Court held that Serbia had failed in its duty to prevent genocide in Srebrenica, although—because, the Court said, there was no certainty that it could have succeeded in preventing the genocide—no damages were awarded. The judgment provides a strong and authoritative statement of the general duty upon states to prevent genocide that dovetails well with the doctrine of the responsibility to protect.

The postmodernist war on evidence-based practice

In this paper, we examine the war of words between those who contend that health care practice, including nursing, should primarily be informed by research (the evidence-based practice movement), and those who argue that there should be no restrictions on the sources of knowledge used by practitioners (the postmodernists). We review the postmodernist interventions of Dave Holmes and his colleagues, observing that the postmodernist style to which they adhere, which includes the use of continental philosophy, metaphors, and acerbic delivery, tends to obscure their substantive arguments. The heated nature of some responses to them has tended to have the same effect. However, the substantive arguments are important. Five main postmodernist charges are identified and discussed. The first argument, that the notion of ‘best evidence’ implies a hierarchical and exclusivist approach to knowledge, is persuasive. However, the contention that this hierarchy is maintained by the combined pressures of capitalism and vested interests within academia and the health services, is less well founded. Nevertheless, postmodernist contentions that the hierarchy embraced by the evidence-based practice movement damages health care because it excludes other forms of evidence that are needed to understand the complexity of care, it marginalizes important aspects of clinical knowledge, and it fails to take account of individuals or their experience, are all seen to be of some merit. However, we do not share the postmodernist conclusion that this adds up to a fascist order. Instead, we characterize evidence-based practice as a necessary but not sufficient component of health care knowledge.

Personal Injury Liability in Sport: Emerging Trends

Violent play during the course of a game or sport is not a new phenomenon; accompanying legal proceedings are. This article considers personal injury liability for injuries inflicted by a participant upon an opponent during a sporting pursuit. The jurisdictional focus is on England and Wales. The sporting emphasis of the article is on competitive, body contact games. The legal emphasis is on the tort of negligence. Analogous to the law of criminal assault, breach of "implied sporting consent" or the volenti of the claimant will be seen as central in application, as assessed through a number of objective criteria, including the skill level of the injuring party and whether that defendant was acting in "reckless disregard" of the claimant's safety. These criteria or evidential guidelines, which emerge from a careful doctrinal analysis of the relevant case law, are seen as crucial to the examination of the appropriate degree of care in negligence within the prevailing circumstances of sport. The article also searches for some theoretical coherency within the case law, premising it on Fletcher's idea of reciprocal risk-taking. In addition, the underlying policy-related issue of sport's social utility is discussed, as are practical matters relating to vicarious liability, insurance and the measure of damages for "lost sporting opportunity". Moreover, it will be shown that personal injury claims relating to sports participant liability now extend to a consideration of the duties of coaches, referees, sports governing bodies and schools. Finally, this article is set against the backdrop of an apparently spiralling "compensation culture" and the concomitant threat that that "blame culture" poses for the future promotion, operation and administration of sport.