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.

Politeness and honesty contribute additively to the interpretation of scalar expressions

Scalar terms have been the focus of much recent attention. People can interpret such terms narrowly, for example, interpreting A or B to convey A or B but not both, on the grounds that a speaker would have explicitly used a more informative term (i.e., and) had he or she been in a position to do so; or they can interpret such terms broadly (A or B or both). Examined here are the effects of politeness contexts and self-rated honesty on people’s interpretation of the scalar connective or. In two experiments, it is shown that participants are less likely to adopt the narrow interpretation when the communicative context is face threatening, and that regardless of context, participants high in self-rated honesty adopt the narrow interpretation to a greater extent than those low in self-rated honesty. These results are consistent with the claim that an assumption of honesty underlies certain pragmatic inferences and suggest that personality may be an important source of individual differences in language interpretation.

Search protocols for hidden forensic objects beneath floors and within walls

The burial of objects (human remains, explosives, weapons) below or behind concrete, brick, plaster or tiling may be associated with serious crime and are difficult locations to search. These are quite common forensic search scenarios but little has been published on them to-date. Most documented discoveries are accidental or from suspect/witness testimony. The problem in locating such hidden objects means a random or chance-based approach is not advisable. A preliminary strategy is presented here, based on previous studies, augmented by primary research where new technology or applications are required. This blend allows a rudimentary search workflow, from remote desktop study, to non-destructive investigation through to recommendations as to how the above may inform excavation, demonstrated here with a case study from a homicide investigation. Published case studies on the search for human remains demonstrate the problems encountered when trying to find and recover sealed-in and sealed over locations. Established methods include desktop study, photography, geophysics and search dogs:these are integrated with new technology (LiDAR and laser scanning; photographic rectification; close quarter aerial imagery; ground-penetrating radar on walls and gamma-ray/neutron activation radiography) to propose this possible search strategy.

Network Usage Determination for Transmission Cost Allocation using a Transformer Analogy

This study presents a new method for determining the transmission network usage by loads and generators, which can then be used for transmission cost/loss allocation in an explainable and justifiable manner. The proposed method is based on solid physical grounds and circuit theory. It relies on dividing the currents through the network into two components; the first one is attributed to power flows from generators to loads, whereas the second one is because of the generators only. Unlike almost all the available methods, the proposed method is assumption free and hence it is more accurate than similar methods even those having some physical basis. The proposed method is validated through a transformer analogy, and theoretical derivations. The method is verified through application to the IEEE 30 bus system and the IEEE 118 test system. The results obtained verified many desirable features of the proposed method. Being more accurate in determining the network usage, in an explainable transparent manner, and in giving accurate cost signals, indicating the best locations to add loads and generation, are among the many desirable features.

Tunnel spoil classification and applicability of lime addition in weak formations for muck reuse

Tunnel construction planning requires careful consideration of the spoil management part, as this involves environmental, economic and legal requirements. In this paper a methodological approach that considers the interaction between technical and geological factors in determining the features of the resulting muck is proposed. This gives indications about the required treatments as well as laboratory and field characterisation tests to be performed to assess muck recovery alternatives. While this reuse is an opportunity for excavations in good quality homogeneous grounds (e.g. granitic mass), it is critical for complex formation. This approach has been validated, at present, for three different geo-materials resulting from a tunnel excavation carried out with a large diameter Earth Pressure Balance Shield (EPB) through a complex geological succession. Physical parameters and technological features of the three materials have been assessed, according to their valorisation potential, for defining re-utilisation patterns. The methodology proved to be effective and the laboratory tests carried out on the three materials allowed the suitability and treatment effectiveness for each muck recovery strategy to be defined. © 2014 Elsevier Ltd.

Green Political Economy: beyond orthodox undifferentiated economic growth as a permanent feature of the economy

This chapter outlines the main features of green political economy and the principal ways in which it differs from dominant mainstream or orthodox neoclassical economics. Neoclassical economics is critiqued on the grounds of denying its normative and ideological commitments in its false presentation of itself as ‘objective’ and ‘value neutral’. It is also critiqued for its ecologically irrational commitment to the imperative of orthodox economic growth as a permanent feature of the economy, compromising its ability to offer realistic or normatively compelling guides to how we might make the transition to a sustainable economy. Green political economy is presented as an alternative or heterodox form of economic thinking but one which explicitly expresses its normative/ideological value bases (hence it represents a return to ‘political economy’, the origins of modern economics). Green political economy also challenges the commitment to undifferentiated economic growth as a permanent objective of the human economy. In its place, green political economy promotes ‘economic security’ as a better objective for a sustainable, post-growth economy. The latter includes the transition to a low-carbon energy economy, and is also one which maximises quality of life (as oppose to formal employment, income and wealth), and actively seeks to lower socio-economic inequality. Green political economy views orthodox economic growth as having passed the threshold in most ‘advanced’ capitalist societies beyond which it has undermined quality of life and at best manages rather than reduces socially and ecologically damaging inequalities.

Age discrimination before the ECJ - Conceptual and theoretical issues

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

EU Non-Discrimination Law and Intersectionality:investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

The book will be a valuable resource for researchers, academics and those working in the area of EU non-discrimination law and policy.

Organising EU non-discrimination law around the nodes of ‘race’ gender and disability?

EU non-discrimination law has seen a proliferation of discrimination grounds from 2000. Dis-crimination on grounds of gender (in the field of equal pay) and on grounds of nationality (generally within the scope of application of EU law) were the only prohibited forms of discrimination in EU law, until the Treaty of Amsterdam empowered the Community to legislate in order to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC). Proliferation of non-discrimination grounds is also characteristic for international and national non-discrimination law. As such, proliferation of grounds results in an increase in potential cases of “multiple discrimination” and the danger of diluting the demands of equality law by ever more multiplication of grounds. The hierarchy of equality, which has been so widely criticised in EU law, is a signifier of the latter danger.
This chapter proposes to structure the confusing field of non-discrimination grounds by organising them around nodes of discrimination fields. It will first reflect different ways of establishing hierarchies between grounds. This will be followed by a recount of different (narrow and wide) reading of grounds. A comprehensive reading of the grounds gender, ‘race’ and disability as establishing overlapping fields of discrimination grounds will be mapped out, with some examples for practical uses.

Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme.

Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law

The aim of this article is to discuss some consequences of placing the combating of discrimination and the promotion of equality among the principles of Community law. The focus is firstly on the ensuing widening of the scope of EU (gender) equality law and secondly on the increase of grounds of forbidden discrimination. In concluding, steps towards a multidimensional conception of equality law are proposed.

The European Union and Peacebuilding: The Cross-Border Dimension

The award of the Nobel Peace Prize to the European Union in 2012 was a reminder of the role of European integration in peacebuilding after the Second World War. For the 'Founding Fathers' of the European integration project, cross-border-cooperation was an integral element in building Europe's peace. Yet, in a Western Europe largely at peace for generations, peacebuilding as a relevant objective for European integration may be questioned. Moreover, the contribution of cross-border cooperation to conflict amelioration may be challenged on the grounds of its overwhelming economic focus. However, enlargement into Central Eastern Europe highlights once again the necessity of a peacebuilding objective for the European Union because of the multitude of real and potential conflicts encompassed within its expanded policy orbit. Drawing on evidence from selected 'borderscapes', this study examines 25 years of European Union cross-border cooperation as conflict amelioration and assesses its prospects in a political climate that emphasises borders as security barriers.

Insults, free speech and offensiveness

This article examines what is wrong with some expressive acts, ‘insults’. Their putative wrongfulness is distinguished from the causing of indirect harms, aggregated harms, contextual harms, and damaging misrepresentations. The article clarifies what insults are, making use of work by Neu and Austin, and argues that their wrongfulness cannot lie in the hurt that is caused to those at whom such acts are directed. Rather it must lie in what they seek to do, namely to denigrate the other. The causing of offence is at most evidence that an insult has been communicated; it is not independent grounds of proscription or constraint. The victim of an insult may know that she has been insulted but not accept or agree with the insult, and thereby submit to the insulter. Hence insults need not, as Waldron argues they do, occasion dignitary harms. They do not of themselves subvert their victims' equal moral status. The claim that hateful speech endorses inequality should not be conflated with a claim that such speech directly subverts equality.

Thus, ‘wounding words’ should not unduly trouble the liberal defender of free speech either on the grounds of preventing offence or on those of avoiding dignitary harms.

Just a piece of cloth? German courts and employees with headscarves

On 10 October 2002, and on 24 September 2003, the German Federal Labour Court and the German Federal Constitutional Court each delivered a decision on the consequences of wearing a headscarf for employees. Both courts appeared to protect the individual rights of the woman in question. The Federal Labour Court invalidated the dismissal of a salesperson based on the wearing of a headscarf; the Federal Constitutional Court held that a school teacher must not be denied employment on grounds of wearing a headscarf. However, both courts also left some room for manoeuvre in favour of clothing policies or laicism principles which could be used to justify head-scarf bans. This note discussed the potential and drawback of these cases, especially as regards intersectional inequalities along the lines of gender, religion and ethnicity.