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.

Bills of Rights:A Comparative Perspective

Bills of rights are currently a much debated topic in various jurisdictions throughout the world. Almost all democratic nations, with the exception of Australia, now have a bill of rights. These take a variety of forms, ranging from constitutionally entrenched bills of rights, such as those of the United States and South Africa, to non-binding statements of rights. Falling between these approaches are non-entrenched, statutory bills of rights. As regards the latter, a model which has become increasingly popular is that of bills of rights based on interpretative obligations, whereby duties are placed upon courts to interpret national legislation in accordance with human rights standards. The aim of this book is to provide a comparative analysis of the bills of rights of a number of jurisdictions which have chosen to adopt such an approach. The jurisdictions considered are New Zealand, the United Kingdom, the Australian Capital Territory and the Australian state of Victoria.

There have been very few books published to date which contain a detailed comparative analysis of the bills of rights which this book addresses. The book adopts a unique thematic approach, whereby six aspects of the bills of rights in question have been selected for comparative analysis and a chapter is allocated to each aspect. This approach serves to facilitate the comparative discussion and emphasise the centrality of the comparative methodology.

Crisis Cartels:Non-Economic Values, the Public Interest and Institutional Considerations

This paper considers the use of non-economic considerations in Article 101(3) analysis of industrial restructuring agreements, using the Commission's Decisions in Synthetic Fibres, Stichting Baksteen, and the recent UK Dairy Initiative as examples. I argue that contra to the Commission's recent economics-based approach; there is room for non-economic considerations to be taken into account within the framework of the European Treaties. The competition law issue is whether the provisions of Article 101(3) can save such agreements.
I further argue that there is legal room for non-economic considerations to be considered in evaluating these restructuring agreements, it is not clear who the appropriate arbiter of these considerations should be given the institutional limitations of courts (which have no democratic mandate), specialised competition agencies (which may be too technocratic in focus) and legislatures (which are susceptible to capture by rent-seeking interest groups).

Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR

This article assesses the position of English law concerning parental disputes about the religious upbringing of children. Despite the strong emphasis on both parents being able to direct their child’s religious upbringing, courts have interpreted the child’s welfare to restrict the exposure of the child to parental religious beliefs or practices in some circumstances: preserving the child’s future choice of religion, the physical integrity of the child, the child’s contact and relationship with both parents, the child’s educational choices, and the child’s relationship with both parents’ religious community. It is suggested that courts should have a wide understanding of welfare and should be wary to prohibit parents teaching their minority beliefs. This article also compares the position of the European Court of Human Rights (ECtHR) and suggests that, despite the stronger emphasis by the ECtHR on parental rights, English law is generally not that much at odds with the ECtHR.

Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s discourse on the justified use of force

This article discusses the discourse on the justified use of force in the Strasbourg Court’s analysis of Article 3. With particular focus on the judgment in Güler and Öngel v Turkey, a case concerning the use of force by State agents against demonstrators, it addresses the question of the implications of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a perspective which suggests that the discourse on the justified use of force can be reconciled with Article 3’s absolute nature.

The European Convention on Human Rights Act 2003 – Ten Years On

The European Convention on Human Rights Act 2003 has now been in force in Ireland for ten years. This article analyses the Act itself and the impact which it has had on the Irish courts during the first decade of its operation. The use of the European Convention on Human Rights in the Irish courts prior to the enactment of the legislation is discussed, as are the reasons for the passing of the Act. The relationship between the Act and the Irish Constitution is examined, as is the jurisprudence of the Irish courts towards the interpretative obligation found in section 2(1), and the duty placed upon organs of the State by section 3(1). The article ends with a number of observations regarding the impact which the Act has had on the Irish courts at a more general level. Comparisons will be drawn with the UK’s Human Rights Act 1998 throughout the discussion.

Forensic Geomorphology

Geomorphology plays a critical role in two areas of geoforensics: searching the land for surface or buried objects and sampling or imaging rural scenes of crime and control locations as evidence. Most of the associated geoscience disciplines have substantial bodies of work dedicated to their relevance in forensic investigations, yet geomorphology (specifically landforms, their mapping and evolution, soils and relationship to geology and biogeography) have had no such exposure. This is strange considering how fundamental to legal enquiries the location of a crime and its evolution are, as this article will demonstrate. This work aims to redress the balance by showing how geomorphology is featured in one of the earliest works on forensic science methods, and has continued to play a role in the sociology, archaeology, criminalistics and geoforensics of crime. The application geomorphology has in military/humanitarian geography and environmental/engineering forensics is briefly discussed as these are also regularly reviewed in courts of law

On Theft: Teaching Poetry Composition to Undergraduates

This chapter discusses the potential uses of both found poetry and imitiation poetry as teaching material for undergraduate creative poetry students.

Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?

The question of whether and to what extent sovereignty has been transferred to the European Union (EU) from its Member States remains a central debate within the EU and is interlinked with issues such as Kompetenz-Kompetenz, direct effect and primacy. Central to any claim to sovereignty is the principle of primacy, which requires that Member States uphold EU law over national law where there is a conflict. However, limitations to primacy can traditionally be found in national jurisprudence and the Maastricht Treaty introduced a possible EU limitation with the requirement that the EU respect national identities of Member States. The Lisbon Treaty provided only minimal further support to the principle of primacy whilst simultaneously developing the provision on national identities, now found within Article 4(2) TEU. There are indications from the literature, national constitutional courts and the Court of Justice of the EU that the provision is gathering strength as a legal tool and is likely to have a wider scope than the text might indicate. In its new role, Article 4(2) TEU bolsters the Member States’ claim to sovereignty and the possibility to uphold aspects crucial to them in conflict with EU law and the principle of primacy. Consequently, it is central to the relationship between the constitutional courts of the Member States and the CJEU, and where the final elements of control remain in ‘hard cases’. However, it does so as part of EU law, thereby facilitating the evasion of direct fundamental conflicts and reflecting the concept of constitutional pluralism.

A European Culture War in the Twentieth Century? Antic-Catholicism and Anti-Bolshevism between Moscow, Berlin, and the Vatican 1922 to 1933

The term “culture war” has become a generic expression for secular-catholic conflicts across nineteenth-century Europe. Yet, if measured by acts of violence, anticlericalism peaked in the years between 1927 and 1939, when thousands of Catholic priests and believers were imprisoned or executed and hundreds of churches razed in Mexico, Spain and Russia. This essay argues that not only in these three countries, but indeed across Europe a culture war raged in the interwar period. It takes, as a case study, the interaction of communist and Catholic actors located in the Vatican, the Soviet Union, and Germany in the period between the beginning of the Pontificate of Pius XI in 1922 and Hitler’s appointment as chancellor of Germany in 1933. Using correspondence and reports from the Vatican archives, this essay shows how Papal officials and communist leaders each sought to mobilize the German populace to achieve their own diplomatic ends. German Catholics and communists gladly responded to the call to arms that sounded from Rome and Moscow in 1930, but they did so also to further their own domestic goals. The case study shows how national contexts inflected the transnational dynamics of radical anti-Catholicism in interwar Europe. In the end, agitation against “godlessness” did not lead to the return of a “Christian State” desired by many conservative Christians. Instead, the culture war further destabilized the republic and added a religious dimension to a landscape well suited to National Socialist efforts to reach a Christian population otherwise mistrustful of its völkisch and anticlerical elements.

The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) - Another Step Towards National Closure?

The German Federal Constitutional Court (FCC) ruling of 14 January 2014 deserves a thorough evaluation on several accounts: It is the first ever reference by the FCC to the Court of Justice of the European Union (CJEU), it represents a continuation of FCC case law aimed at restricting the impact of European Union law as interpreted by the Court of Justices of the European Union (CJEU) on German law as well as questioning Germany’s participation in an ever closer European Union, and it has the potential to dictate the future course of the EU’s Economic and Monetary Union (EMU).

This case note discusses three aspects of this decision. First, it considers the aims of challenging the youngest measures to contain the euro currency crisis before the FCC, focusing on the question in how far the claims are based on national closure as opposed to an ever closer union of the peoples of Europe. Secondly it analyzes in how far the aims the claims pursue are reflected in the FCC’s response. Thirdly, it considers the substantive relevance of this reference, highlighting the surprisingly vague consequences the FCC envisages should the CJEU not re-interpret the OMT decision as the FCC suggests, and illuminating the strategic aims of the reference without deference. In conclusion, it sketches the remaining scope for the EU to engage in or at least facilitate transnational solidarity.

Speaking with One Voice?: Ethno-national Division on the Constitutional Court of Bosnia-Herzegovina

The challenge of designing institutions to manage ethno-national conflict is one of the enduring concerns of political science. One important but relatively understudied aspect of this challenge is the design of constitutional courts. Courts are likely to play a key role in the maintenence of a constitutional settlement. But this role can be especially onerous in a deeply divided and post-conflict setting where the rule of law is weak and judges have ethno-national affiliations that may undermine the appearance of judicial neutrality. In such contexts, a court’s authority (including compliance with its decisions) cannot be taken for granted.

With reference the Constitutional Court of Bosnia-Herzegovina, and using an original dataset of the Court's non-unanimous plenary decisions, we test several hypotheses about the degree to which ethno-national affiliation influences judicial behavior. We find that (1) judges on the Constitutional Court do in fact divide predictably along ethno-national lines, (2) that these patterns are robust to changes in the tenure system, and (3) are independent of party political background.

Differenzierte Gerechtigkeit: Diskriminierungsschutz und Vertragsrecht

The theme of this book is the perceived tensions between contract law's principle of private autonomy and non-discrimination law. I first analyse the notion of discrimination, and specify that I restrict the investigation to ascribed difference,more specifically to perceived race/ethnicty, sex/gender and disability. Based on an analysis of the aims of non-discrimination law which extends onto markets, I then presented potential structures of non-discrimination clauses addressing market inequalities. Turning to a doctrinal investigation of German contract law and its position towards discrimination on grounds, I first investigated whether international law, EU law or the German constitution form a stable base for contractual non-discrimination law. Having concluded that these bodies of law require some protection against discrimination based on ascribed difference, but that contract law needs to provide its own specification, I then offer a very short comparative chapter on British and Dutch non-discrimination law (I guess I have developed quite a bit in this field since then!). Finally, I analyse in how far German courts have offered protection against discrimination on markets in the past, and which position the doctrine has taken. From page 290, I finally offer a conceptual, paradigmatic and principled proposal of how to integrate a principle of non-discrimination into German contract law. To my own surprise, this was later endorsed by one of the "doyens" of German contract law, Professor Canaris. In any case, you can see from my edited collection of 2011, that I am still fascinated by discrimination on grounds of race/ethnicity, sex/gender and disability.