tag:theconversation.com,2011:/uk/topics/legal-5056/articlesLegal – The Conversation2023-01-19T21:22:32Ztag:theconversation.com,2011:article/1982182023-01-19T21:22:32Z2023-01-19T21:22:32ZWhat is involuntary manslaughter? A law professor explains the charge facing Alec Baldwin for ‘Rust’ shooting death<figure><img src="https://images.theconversation.com/files/505468/original/file-20230119-26-w9y9jg.jpg?ixlib=rb-1.1.0&rect=48%2C169%2C5345%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Alec Baldwin accidentally shot and killed a cinematographer, Halyna Hutchins, in late 2021 while filming a movie in New Mexico.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PropFirearmMovieSet/373f9ec3a3014e6c985d1d165d7bca12/photo?Query=alec%20baldwin%20rust&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=63&currentItemNo=25">AP Photo/Jae C. Hong</a></span></figcaption></figure><p>A prosecutor in New Mexico <a href="https://www.nytimes.com/2023/01/19/arts/rust-shooting-charges-alec-baldwin.html">intends to charge Alec Baldwin</a> with two counts of involuntary manslaughter it was announced on Jan. 19, 2023, over the <a href="https://www.nytimes.com/2021/10/21/us/alec-baldwin-shooting-rust-movie.html">deadly shooting</a> on the set of the film “Rust” in 2021. The shooting occurred while Baldwin was rehearsing a scene with a gun that had been loaded with live ammunition instead of blanks. The prosecutor also intends to charge Hannah Gutierrez-Reed, the <a href="https://www.careersinfilm.com/armorer/">armorer</a> responsible for <a href="https://www.nbcnews.com/news/us-news/after-rust-shooting-industry-veterans-say-buck-stops-armorers-movie-n1282743">overseeing the safety of firearms</a> on the set, with two counts of involuntary manslaughter as well. </p>
<p>As a <a href="https://scholar.google.com/citations?user=X8tNfOsAAAAJ&hl=en&oi=ao">professor of law</a>, my job is to understand the nuance of the U.S. legal system. Involuntary manslaughter occurs when a person unintentionally, but still unlawfully, kills another person. And a prosecutor will need to show the unlawful nature of either Baldwin’s or Gutierrez-Reed’s actions to get a conviction in this case.</p>
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<a href="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of handgun cartridges with the tops pinched closed and no bullet." src="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505472/original/file-20230119-16395-n9cbqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Baldwin thought the gun was loaded with blanks, ammunition that contains powder but not a bullet.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Buffalo_Blanks_Mounted_Shooting_Blanks.jpg">KenAmorosano/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<h2>A reckless or negligent accident</h2>
<p>To convict someone of involuntary manslaughter, a prosecutor has to prove that the defendant <a href="https://www.findlaw.com/criminal/criminal-charges/involuntary-manslaughter-overview.html">acted either recklessly or with criminal negligence</a>.</p>
<p>To prove someone acted recklessly, a prosecutor has to show that the defendant was aware of the risk they were creating with their actions – like a drunk driver crashing into a car and <a href="https://www.ksdk.com/article/news/crime/driver-convicted-involuntary-manslaughter-killed-baby-2-parents-jefferson-co/63-e9d29793-5187-446e-9067-96e8f29e0806">killing a baby and her parents</a>. In contrast, the charge of criminal negligence is filed when a defendant is not aware of the risk, but a reasonable person in the position of the defendant would have been aware of the risk. For example, if someone rents out an apartment without smoke detectors and there is a fire that kills the occupants, the owner of the apartment could be charged with involuntary manslaughter.</p>
<p>The question for a potential jury is whether Baldwin was guilty of either reckless or criminally negligent actions that resulted in the death of <a href="https://www.msn.com/en-us/news/world/halyna-hutchins-in-her-own-words/ar-AA16wWuh">Halyna Hutchins</a>, the cinematographer on the “Rust” set. </p>
<p>The prosecutor is alleging that <a href="https://www.nytimes.com/2023/01/19/arts/rust-shooting-charges-alec-baldwin.html?">Baldwin had a duty</a> to ensure that the gun and the ammunition he used were properly checked and that without doing that check himself, Baldwin should never have pointed the gun at anyone. Although that is what the prosecutor is claiming, a complicating factor is that there was another person, an on-set safety person responsible for the weapons and ammunition. </p>
<p>To convict Baldwin of manslaughter – assuming the case goes to trial – the prosecutor will have to convince a jury of two things. First, that Baldwin could not reasonably rely on Gutierrez-Reed to do her job and ensure that the gun did not have any live ammunition in it. And second, that Baldwin acted recklessly, or at least with criminal negligence, by not checking the gun and the ammunition himself before pointing the gun at the person he killed.</p><img src="https://counter.theconversation.com/content/198218/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To convict Alec Baldwin of manslaughter for the on-set deadly shooting of Halyna Hutchins in 2021, prosecution will need to show that the actor was either reckless or criminally negligent.Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1939062022-11-10T17:17:24Z2022-11-10T17:17:24ZCOP27: how young climate activists are changing international human rights law<figure><img src="https://images.theconversation.com/files/494634/original/file-20221110-17-i3h2op.jpg?ixlib=rb-1.1.0&rect=26%2C47%2C4466%2C2943&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's still time to avert the worst of climate change.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-february-15-2019-protestors-1314679391">Ink Drop/Shutterstock</a></span></figcaption></figure><p>World leaders and climate scientists aren’t the only ones who have gathered in Sharm El Sheikh, Egypt, for the latest UN climate summit, COP27. Children and young people are also a big part of the conference.</p>
<p>For the first time, COP will have a <a href="https://www.ipinst.org/2022/10/youth-leaders-on-peace-and-climate-action-priorities-for-cop-27#4">Youth Envoy</a>, Omnia El Omrani, a final-year medical student at Ain Shams University in Egypt, who will help to ensure that youth climate advocates can meaningfully participate at COP27. And in another first, children and young people also have their own <a href="https://www.childrenandyouthpavilion.info">pavilion</a>, a space where a particular group can run their own events at COP.</p>
<p>Greater recognition in general has been given to the importance of young people’s concerns on climate crisis over the past few years. And young activists have long been working to secure environmental change. </p>
<p>Young people from indigenous communities, for example, such as US environmental activist <a href="https://www.huffpost.com/entry/xiuhtezcatl-speaks-to-un_n_7715192">Xiuhtezcatl Martinez</a>, have worked hard to draw attention to the climate crisis. They were doing this even before the phenomenal success of Greta Thunberg’s solo vigil before the Swedish parliament, and the movements sparked by her.</p>
<p>As COP27 kicked off this week, executive secretary of the UN’s climate change body, Simon Stiell, <a href="https://twitter.com/simonstiell/status/1588780578714767361?ref_src=twsrc%255Etfw%257Ctwcamp%255Etweetembed%257Ctwterm%255E1588780578714767361%257Ctwgr%255E8d61da26a3c905a993af1df193aa1bc3ef9aa2ff%257Ctwcon%255Es1_&ref_url=https://unfccc.int/cop27">thanked youth advocates</a> for moving climate change to the front of the global agenda, clearly recognising all that has been done by young people. </p>
<p>But research shows that <a href="https://online.ucpress.edu/elementa/article/doi/10.1525/elementa.433/114473/Applying-a-leverage-points-framework-to-the-United">stronger links are still needed</a> between youth climate action and young people’s roles in decision making processes. And while a <a href="https://www.ejiltalk.org/looking-behind-the-un-youth-office-considering-structural-limitations-of-youth-participation-after-the-party/">UN Youth Office</a> is being established to do just that, it’s clear that there’s still more that needs to be done.</p>
<h2>Changing the law</h2>
<p>This is especially the case when you consider how influential young climate advocates have been in <a href="https://academic.oup.com/hrlr/article/22/2/ngac011/6565727?searchresult=1">influencing international human rights law</a>. Dozens of cases around the world have been taken on by child and youth advocates in the past few years. </p>
<p>Some have been <a href="https://www.elgaronline.com/view/journals/jhre/13/1/article-p64.xml">successful in achieving legal change</a>. For example, in 2021 the Neubauer case saw the German constitutional supreme court <a href="https://www.theguardian.com/world/2021/apr/29/historic-german-ruling-says-climate-goals-not-tough-enough">compel the German government</a> to take “more urgent and shorter term measures” to curb carbon emissions.</p>
<p>Other climate applications, even where not successful legally, have had other effects. A groundbreaking climate <a href="https://theconversation.com/with-15-other-children-greta-thunberg-has-filed-a-un-complaint-against-5-countries-heres-what-itll-achieve-124090">complaint</a> by 15 children (Thunberg included) was made to the UN Committee on the Rights of the Child against five of the biggest emitters. </p>
<p>The committee <a href="https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1351&Lang=en">determined</a> that the application could not be heard in full (the applicants had to first go through domestic courts). Yet while doing so, <a href="https://theconversation.com/climate-crisis-how-states-may-be-held-responsible-for-impact-on-children-170130">the committee found that</a> a government can, in theory, be held to account for the impact of its country’s carbon emissions on children, both within and outside of its borders – and a first for a UN body.</p>
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<img alt="Young climate protesters carry large banner." src="https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494635/original/file-20221110-25-nbypli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Young protesters take matters into their own hands.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/washington-april-29-protesters-climate-march-630541457">Rena Schild/Shutterstock</a></span>
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<p>As well as setting new international law standards, these youth advocates have framed environmental harm as harm to an individual. This has contributed to greater recognition for an explicit right to a healthy environment. </p>
<p>Such a right has been talked about for some time and recognised in many countries at national level, but was recently explicitly recognised by the UN general assembly. It is <a href="https://www.universal-rights.org/wp-content/uploads/2021/02/2021_URG_R2HE_TIME_REPORT_MM.pdf">understood to have benefits</a> at national level, including the ability to rely on the principle in court – and academics have <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/reel.12430">argued that it gives better avenues</a> to legally tackle the climate crisis.</p>
<p>That children and young people are taking action in large numbers, including legal applications, should not be underestimated. Young people <a href="https://brill.com/view/title/11631">have always been active</a> in advocating for social justice and human rights. But youth climate action has made this clear on a global scale, and also shown that adults don’t just give children their rights – children can take matters into their own hands to influence law and policy.</p>
<p>The dire threat the climate crisis poses to humanity is disruptive in many ways. One change it has brought about is that children and young people feel compelled to <a href="https://www.childism.org/post/children-youth-climate-advocates-doing-rights-themselves-post-paternalism">work together, unprompted by adults</a>, to secure the right to a healthy environment. Many children and young people have been particularly good at <a href="https://academic.oup.com/hrlr/article/22/2/ngac011/6565727?searchresult=1">mobilising online</a>, and at commanding media attention for climate issues.</p>
<h2>What you can do</h2>
<p>Adults need to respond to this new dawn in child and youth advocacy on the climate and on environmental human rights. The steps taken by the UN such as a Youth Envoy for COP27 are certainly in the right direction. But children’s <a href="https://ceri-coalition.org/wp-content/uploads/2022/11/COP27-Position-Paper-Incorporating-Child-Rights-into-Climate-Action.pdf">interests and voices should be embedded</a> in all efforts to fight the climate crisis – these are key rights under the UN Convention on the Rights of the Child.</p>
<p>It must be ensured that children and young people are more able to influence how the right to a healthy environment is implemented. This means that governments must conduct <a href="http://enoc.eu/wp-content/uploads/2020/12/ENOC-Common-Framework-of-Reference-FV.pdf">impact assessments</a> which examine how laws, policies and practices affect children’s environmental rights. </p>
<p>It requires <a href="https://enoc.eu/wp-content/uploads/2022-Synthesis-Report-Climate-Justice.pdf">better local and national ways</a> to hold governments and polluting companies to account. It must also include embedding children’s and young people’s voices into consultative processes on the environment, as recently occurred in <a href="https://www.irishtimes.com/environment/2022/10/23/we-shouldnt-be-hurting-our-planet-youth-assembly-calls-for-greater-input-into-biodiversity/">Ireland’s biodiversity assembly</a>. </p>
<p>Children and young people must also be recognised <a href="https://brill.com/view/journals/nord/91/3/article-p419_004.xml">as being equal to adults</a> when it comes to being able to contribute to decisions on law and policy. And rather than simply assuming that adults will protect children’s rights, we must share knowledge and experiences <a href="https://gchumanrights.org/preparedness/article-on/the-right-of-children-to-a-healthy-environment-intergenerational-rights-are-childrens-rights.html">across generations</a>.</p>
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<p>Unfortunately, some young climate activists have already reported that they are <a href="https://www.rfi.fr/en/international-news/20221107-why-are-we-here-climate-activists-shunted-to-cop27-sidelines">feeling restricted</a> from demonstrating at COP27. This is disappointing but children and young people will continue to hold governments and others to account through protest, litigation, and other ways. </p>
<p><a href="https://www.youtube.com/watch?app=desktop&v=ropBOwPvmLM">As Thunberg has said</a>, young people are “showing our leaders that they messed with the wrong generation”. Indeed, given how much young people have achieved in the fight against climate crisis it’s crucial their voices are really heard at COP27.</p><img src="https://counter.theconversation.com/content/193906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aoife Daly receives funding from the Ragnar Soderberg Foundation for her research.
Aoife would like to thank Alicia O'Sullivan for advice on this article. Alicia is a youth climate advocate, a law student, and a research assistant at the Centre for Law and the Environment, University College Cork <a href="https://www.ucc.ie/en/lawenvironment/people/">https://www.ucc.ie/en/lawenvironment/people/</a></span></em></p>Given how much young people have achieved in the fight against climate crisis it’s crucial their voices are really heard at COP27.Aoife Daly, Lecturer in Law, University College CorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1744612022-01-08T01:29:14Z2022-01-08T01:29:14ZSupreme Court considers derailing federal vaccine mandates – appears inclined to keep for health workers, but not wider workforce<figure><img src="https://images.theconversation.com/files/439874/original/file-20220107-25-yxou9q.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3988&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Did justices give oral arguments an icy reception?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WashingtonWinterWeather/b94cdea96f4648daab7a9e1f3cc47095/photo?Query=Supreme%20Court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=43623&currentItemNo=22">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p><em>Editor’s note: this article was written before the <a href="https://www.marketwatch.com/story/supreme-court-stops-biden-osha-vaccine-mandate-for-u-s-businesses-01642103975">Supreme Court issued orders</a> stopping the mandate for large employers and permitting the mandate for health facilities.</em></p>
<p>Conservative justices on the Supreme Court <a href="https://www.scotusblog.com/2022/01/court-seems-poised-to-block-vaccine-or-test-policy-for-workplaces-but-may-allow-vaccine-mandate-for-health-care-workers/">appeared to signal</a> a belief that the Biden administration may have overreached in ordering private companies to require that staff be vaccinated or subject to regular testing. But a separate requirement that health care workers at institutions receiving federal funds be immunized may be judged to be on firmer legal ground.</p>
<p><a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a240_l537.pdf">Oral arguments</a> over just how far the federal government can go to require employees to get vaccinated came before the Supreme Court on Jan. 7, 2022. The cases, <a href="https://www.supremecourt.gov/orders/courtorders/122221zr2_f20h.pdf">NFIB v. OSHA</a> and <a href="https://www.supremecourt.gov/orders/courtorders/122221zr1_d18e.pdf">Biden v. Missouri</a>, come at a critical time: A surge of COVID-19 cases resulting from the <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html#:%7E:text=As%20of%20December%2020%2C%202021,19%20cases%20it%20is%20causing.&text=CDC%20is%20expecting%20a%20surge,surveillance%20and%20potential%20rapid%20spread.">highly contagious omicron variant</a> has put added pressure on workplaces and hospitals across the nation. And arguments took place just days before OSHA’s key mandate is due to come into effect on Jan. 10.</p>
<p>As a <a href="https://isearch.asu.edu/profile/1436144">law expert</a> who has closely followed the treatment of vaccine mandates in the lower courts, I envision a divided court issuing decisions soon. Although oral arguments are not a solid predictor of how the court will rule, justices seemed to be moving toward allowing vaccine requirements for health care workers but curbing federal powers to implement a broader mandate affecting the wider workforce. </p>
<p>The oral arguments in front of the justices related to two vaccine mandates put forward by the Biden administration.</p>
<p>The first, <a href="https://www.osha.gov/coronavirus/ets2">issued by the Occupational Safety and Health Administration</a>, requires that all employees at private businesses with 100 or more staff be vaccinated or submit to regular testing. The OSHA ruling affects more than 80 million American workers.</p>
<p>The second, <a href="https://www.cms.gov/newsroom/press-releases/biden-harris-administration-issues-emergency-regulation-requiring-covid-19-vaccination-health-care">issued by the Centers for Medicare and Medicaid Services</a>, requires that over 10 million health care workers at CMS-funded providers be vaccinated.</p>
<p>Enforcement of both mandates is held up in specific states following decisions in lower courts, and is awaiting final rulings by the Supreme Court. </p>
<h2>How did we get to this point?</h2>
<p>Federal vaccine mandates are seen by <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/">the Biden administration as a linchpin</a> in the national strategy to quell the pandemic, which has now taken over 833,000 American lives. </p>
<p>Since their introduction on Nov. 5, 2021, the OSHA and CMS vaccine mandates have faced extensive judicial challenges by mainly Republican states.</p>
<p>Federal appellate courts had different opinions on the legality of OSHA’s mandate, ultimately allowing it to take effect through a <a href="https://www.pbs.org/newshour/politics/federal-appeals-court-allows-biden-employer-vaccine-mandate-to-take-effect">unified decision in the 6th Circuit Court of Appeals</a>. </p>
<p>Lower federal district courts in several states determined that the CMS vaccine requirement should be set aside. Based on multiple appeals, the Supreme Court agreed to hear the cases in two consecutive oral arguments.</p>
<p>The question before the court now is not whether mandates work to get people vaccinated – <a href="https://www.scientificamerican.com/article/vaccine-mandates-are-lawful-effective-and-based-on-rock-solid-science/">we know that they do</a>. Rather, the central question in front of the justices is whether the federal government, as opposed to states, can actually implement them. </p>
<p>States’ abilities to mandate vaccines as a condition of employment, school attendance or admission to certain events are largely unquestioned and have been confirmed in lower-court rulings. Provided exemptions are allowed those who are medically unfit, or religiously opposed in many jurisdictions, state-based vaccine mandates are constitutional. Such was the Supreme Court’s decision in <a href="https://www.oyez.org/cases/1900-1940/197us11">Jacobson v. Massachusetts</a>, which affirmed in 1905 the constitutionality of a local vaccine mandate to counter a smallpox outbreak in Cambridge.</p>
<p>The issue is that not all states approve COVID-19 vaccine mandates. From the onset of the coronavirus pandemic, largely conservative-leaning states, including <a href="https://www.abc15.com/news/vaccine-in-arizona/arizona-governor-doug-ducey-signs-order-banning-government-covid-19-vaccine-mandates">Arizona</a>, <a href="https://www.reuters.com/legal/government/florida-bans-strict-vaccine-mandates-schools-businesses-2021-11-18/">Florida</a> and <a href="https://www.texastribune.org/2021/10/18/texas-covid19-vaccine-mandates-bill/">Texas</a>, prohibited them. Residents could choose to be vaccinated, but no one was going to be forcefully inoculated.</p>
<p>Losing patience with contrary state approaches and a minority of Americans steadfastly refusing vaccination, <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/">President Biden determined in September 2021</a> that federal employees, members of the military and contractors would be required to be vaccinated.</p>
<p>These mandates faced their own judicial challenges. The contractor rule, affecting millions of workers at federally supported enterprises, has been stalled in multiple courts.</p>
<h2>Constitutional questions</h2>
<p>Central to cases in front of the Supreme Court now is the question of whether the federal government has the authority to impose a vaccine mandate on large employers, regardless of the public health benefits.</p>
<p>Justice Elena Kagan, a reliable member of the court’s minority liberal wing, stressed the “extraordinary circumstances” of the pandemic in justifying OSHA’s vaccine mandate. OSHA’s authority to regulate workplace health and safety broadly is beyond debate, observed fellow liberal Justice Sonia Sotomayor.</p>
<p>Other justices diverged. Chief Justice John Roberts expressed reservations over agency-hopping, suggesting the Biden administration sought new legal arguments to vaccinate Americans through multiple agencies’ authorities.</p>
<p>Meanwhile, conservative Justices Neil Gorsuch and Brett Kavanaugh persistently questioned whether Congress had empowered OSHA to impose sweeping national vaccine requirement through “cryptic” or “broad” language contained in the Occupational Safety and Health Act of 1970.</p>
<p>Resolution of these issues will prove pivotal in the court’s forthcoming decision.</p>
<h2>An ‘easier case’</h2>
<p>The legal issues at stake in <a href="https://www.oyez.org/cases/1900-1940/252us416">Biden v. Missouri</a> challenging CMS’ vaccination mandate for health care workers presented an “easier case,” noted Roberts. The reason is simple: In crafting its mandate, CMS relied on a slate of existing legally approved statutory authorities that allow the center to set terms of provider participation in furtherance of patient safety and health.</p>
<p>Hospitals and other providers were largely in favor of CMS’ vaccination mandate. </p>
<p>It was conservative states and localities like Missouri and Kentucky that objected, on grounds that CMS exceeded its conditional spending powers. </p>
<p>Kagan insisted that requiring vaccinations to curb risks to patients and workers in hospitals and other health care settings was logical and consistent with its legal duties.</p>
<p>Opposing counsels and Gorsuch suggested otherwise. They argued that CMS failed to provide adequate notice and and attempted to “commandeer” health care workers in violation of federal statutes and principles of federalism.</p>
<h2>What’s to come?</h2>
<p>With enforcement of the OSHA standard due to start on Jan. 10, 2021, the court may issue a rapid decision, or it could provide a temporary stay. A third option is to simply do nothing and allow the vaccine mandate to take effect.</p>
<p>Justice Stephen Breyer repeatedly questioned how the court could issue a stay under the “public’s interest” at a time when hundreds of thousands of Americans are being infected daily and hospitals are filling to capacity.</p>
<p>Other justices seemed inclined to stall enforcement of OSHA’s standard while mulling over their arguments. </p>
<p>CMS’ rule has a more generous enforcement timeline, allowing more time for health care providers to comply without penalties. Consequently, the court has more time to finalize and issue its decisions regarding its legality.</p>
<h2>Weighing the options</h2>
<p>Could the court restrict the federal government’s capacity to issue vaccination requirements? It is possible.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>Over the course of the pandemic, the Supreme Court has <a href="https://www.networkforphl.org/resources/covid-19-related-opinions-and-orders-from-the-u-s-supreme-court/">repeatedly struck down</a> public health measures on constitutional grounds. Even if CMS’ vaccine mandate looks likely to stay, the court’s conservative justices’ concerns about overreach of OSHA’s authorities are telling. </p>
<p>Skeptical justices are weighing their concerns of federal overreach against the deadliest public health threat to ever confront the nation.</p><img src="https://counter.theconversation.com/content/174461/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Hodge does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court appears split over the future of vaccination mandates, with conservative justices skeptical of the Biden administration’s authority to enforce requirements.James Hodge, Professor of Law, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1551262021-02-18T21:57:01Z2021-02-18T21:57:01ZWhat the rise of telemedicine means for Canada’s legal system<figure><img src="https://images.theconversation.com/files/383828/original/file-20210211-19-1nxeoz8.jpg?ixlib=rb-1.1.0&rect=4%2C0%2C1349%2C667&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Given the observed and anticipated growth of telemedicine since the beginning of the pandemic, it would be a good idea to clarify and co-ordinate the rules applicable to it in Canada.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/">Shutterstock</a></span></figcaption></figure><p>The current pandemic is a tremendous boost for telemedicine, as many health-care professionals are strongly encouraged to offer online consultations or have no choice but to do so. But even before the pandemic, there was already a growing trend towards the use of teleconsultation, driven in part by various commercial initiatives <a href="https://www.getmaple.ca/">such as Maple</a> <a href="https://www.teladoc.ca/">or Teladoc</a>.</p>
<p>However, there is some legal uncertainty surrounding this practice, raising questions for patients, professionals and regulators alike.</p>
<p>For example, Amazon <a href="https://www.reuters.com/article/us-amazon-com-pharmacy-idUSKBN27X170">announced last November it will offer an online pharmacy</a> in the United States and indicated it had been successful in obtaining pharmacy licences in most American states where drugs would be delivered to consumers.</p>
<p>This initiative does not currently target the Canadian market, but there are questions about what would happen if it did. Should Amazon be required to be licensed in every province and territory where it wants to sell its products? Determining an answer to this question reveals the limitations of the Canadian legal framework for telemedicine.</p>
<p>As someone who has been involved for more than 20 years in various academic and professional activities related to health law and policy — including the regulation of professions — I’ve been looking at the regulatory issues of telemedicine for the past few years.</p>
<h2>Piecemeal and inconsistent rules</h2>
<p>Generally, the <a href="https://laws-lois.justice.gc.ca/eng/Const/page-4.html">organization and regulation of health services</a> provided by hospitals and other institutions, and <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6436/index.do?q=Lafferty+c.+Lincoln">the supervision of the activities of health professionals</a>, fall under provincial jurisdiction, although <a href="https://www.canlii.org/en/ca/scc/doc/2011/2011scc44/2011scc44.html">federal regulations still pertain on certain issues</a>.</p>
<p>A few provinces have already enacted legislation that directly or indirectly affects telemedicine.</p>
<p>Québec, for example, <a href="http://legisquebec.gouv.qc.ca/en/ShowDoc/cs/S-4.2#se:108_1">already oversees telemedicine activities within the public network</a>, particularly in hospitals, thereby excluding services provided in private practices or other contexts. For the most part, services rendered on Maple or Teladoc by Québec physicians in private practice would be exempt from this legislation.</p>
<p>Some provincially constituted professional orders have already sought to regulate telemedicine services provided by their members, most often <a href="https://www.cpsbc.ca/files/pdf/PSG-Telemedicine.pdf">through guides or guidelines</a> which do not necessarily have the same legal force as laws or regulations. </p>
<p>While the <a href="https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Telemedicine">College of Physicians and Surgeons of Ontario</a> does not require a physician from another province to be licensed in Ontario to provide telemedicine services to an Ontario resident, the <a href="http://www.cmq.org/page/en/autorisation-speciale-telemedecine-autres-activites.aspx">Collège des médecins du Québec</a> and <a href="https://cpsa.ca/resources/telemedicine/">Alberta College of Physicians and Surgeons</a> indicate that a licence, special authorization or registration with a particular registry would be required.</p>
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À lire aussi :
<a href="https://theconversation.com/a-national-licence-for-doctors-in-canada-is-it-really-possible-130278">A national licence for doctors in Canada: Is it really possible?</a>
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<p>These different approaches are not without consequences. For example, if the local regulation where the patient resides is not applicable, access for that patient to public protection remedies could be more difficult. There is no guarantee the patient will be able to complain to their provincial regulator about services obtained through a teleconsultation.</p>
<p>For health-care professionals, it may be necessary to go through various regulatory authorities to understand the applicable rules and, in some cases, to obtain permits or authorizations. This is what has led some stakeholders to propose the <a href="https://theconversation.com/a-national-licence-for-doctors-in-canada-is-it-really-possible-130278">introduction of national licensing for health professionals</a>, which would be particularly complex in the Canadian context.</p>
<h2>What standards of practice?</h2>
<p>The case law relating to telemedicine is still not very well developed, but already <a href="https://www.canlii.org/fr/qc/qccdcm/doc/2020/2020qccdmd17/2020qccdmd17.html?searchUrlHash=AAAAAQAPdMOpbMOpbcOpZGVjaW5lAAAAAAE&resultIndex=2">some disciplinary decisions</a> highlight the evidence: a health professional who practises in teleconsultation is subject to the same requirements as in a traditional practice of being in the physical presence of the patient. Therefore, he or she cannot work according to lower “standards of practice.”</p>
<p>Generally, in the health professions, these “standards of practice” and the different rules applicable are quite similar from one province to another. However, there are some differences. In a telemedicine context where the patient is not in the same province as the professional, it’s then necessary to determine which rules to apply. Should they be those of the patient’s location or those of the professional’s location?</p>
<p>An interesting comparison is the online sale of regulated products, such as drugs and ophthalmic lenses, in an interprovincial context or to American consumers.</p>
<figure class="align-center ">
<img alt="screen showing Amazon pharmacy web page" src="https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/379995/original/file-20210121-21-o3190i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Last November, the internet giant Amazon announced the start of an online pharmacy.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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</figure>
<p>Courts in both <a href="https://www.canlii.org/fr/qc/qccq/doc/2005/2005canlii19505/2005canlii19505.html">Québec</a> and <a href="https://www.canlii.org/en/on/onca/doc/2019/2019onca265/2019onca265.html">Ontario</a> have tended to look for the place where the professional act was performed to determine the applicable rules. They may also seek a <a href="https://www.canlii.org/en/on/onca/doc/2013/2013onca381/2013onca381.html">sufficient connection</a> between the provincial rules and the people or organizations to whom they’re intended to apply. That’s based on the activities of those persons or organizations or their place of residence. However, the mere delivery of the product to the patient in a given province may not always be sufficient to make the laws of that province applicable.</p>
<p>Returning to the <a href="https://www.forbes.com/sites/andriacheng/2020/11/17/why-the-new-amazon-pharmacy-could-pose-a-real-threat-to-drugstores/?sh=1a45da2d4a91">Amazon online pharmacy</a>, and despite the <a href="https://www.ocpinfo.com/regulations-standards/practice-policies-guidelines/internet-sites/">administrative requirements</a> of some professional colleges, it is not clear that the laws of the province where the drug would be delivered would be applicable and, therefore, that a licence would be required, unless it could be argued that a professional service specific to pharmacists would be performed there.</p>
<h2>Collaboration is needed between provinces</h2>
<p>Canada is not the only country struggling with the challenge of regulating telemedicine services.</p>
<p>The situation is also complex <a href="https://www.healthit.gov/faq/are-there-state-licensing-issues-related-telehealth#footnote-1">in the United States</a>, where most of the time the professional is required to have both a right to practise in the state where they reside as well as in the state where the patient is. However, <a href="https://www.imlcc.org/">legislative and administrative co-operation agreements</a> are provided for in some professions in some American states.</p>
<p>The effect of these agreements is to facilitate the process of licensing in a “recipient” (or secondary) state where the patient is located, and from a “primary” state where the professional is located. Handling public complaints and public protection measures can then be facilitated, in particular through the possibility of regulatory authorities in the recipient state conducting joint investigations with the regulatory authority of the primary state.</p>
<p>The situation seems somewhat clearer for the European Union, although <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4987488/">still imperfect</a>. In the EU, the <a href="https://hsrc.himmelfarb.gwu.edu/gw_research_days/2018/SMHS/5/">right to practise medicine in one member state</a> would be sufficient to offer services in another member state in telemedicine. It generally follows that the rules to be observed are those of the health-care provider’s location, which is not necessarily to the benefit of the patient.</p>
<p>Ultimately, given the observed and anticipated growth of telemedicine since the beginning of the pandemic, clarification and co-ordination of the rules in Canada would certainly be desirable.</p>
<p>First and foremost it’s the the provinces that should take action in this regard. To this end, they could draw inspiration from the model of legislative and administrative co-operation developed in the United States for certain professions.</p><img src="https://counter.theconversation.com/content/155126/count.gif" alt="La Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marco Laverdière serves as the executive director and secretary of the Ordre des optométristes du Québec in addition to his academic activities at Université de Sherbrooke and Université de Montréal.</span></em></p>The legal uncertainty surrounding telemedicine services is not without consequences. Patients may not have access to public protection remedies.Marco Laverdière, Avocat, enseignant et chercheur associé en droit et politiques de la santé / Lawyer, lecturer and research associate in Health Law and Policy, Université de Sherbrooke Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1555232021-02-18T13:54:14Z2021-02-18T13:54:14ZMyanmar: trial of Aung San just the latest in a long line of unlawful prosecutions by illegal regimes<p>Myanmar’s military coup leaders have reportedly put the country’s lawfully elected leaders <a href="https://www.nytimes.com/2021/02/16/world/asia/myanmar-trial-aung-san-suu-kyi.html">on trial</a>. It is understood that the proceedings, apparently held in secret and without giving the defendants the benefit of legal representation, could last for up to six months. </p>
<p>Aung San Suu Kyi, Myanmar’s state counsellor and de facto leader, faces charges of illegally importing two walkie talkies and of contravening a natural disaster management law by interacting with a crowd during the coronavirus pandemic. These carry a maximum penalty of six years in jail. Win Myint, the country’s deposed president, has been charged with breaching the natural disaster restrictions, which – if he is found guilty – could mean up to three years imprisonment.</p>
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<p><em>You can hear more about the events which led up to Myanmar’s military coup in the second episode of our new podcast, <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a> – the world explained by experts. Subscribe wherever you get your podcasts.</em> </p>
<iframe src="https://player.acast.com/60087127b9687759d637bade/episodes/myanmars-collective-fury?theme=default&cover=1&latest=1" frameborder="0" width="100%" height="110px" allow="autoplay"></iframe>
<p>The worrying developments in Myanmar echo political or show trials of the past, raising fundamental questions about what “law” actually is. How does an unlawfully established government legitimately use the law against its opponents? Indeed, can any rules adopted or imposed by a dictatorship be said to be “laws” at all?</p>
<h2>Nuremberg trials</h2>
<p>This question has bothered legal theorists and human rights lawyers for a very long time. For example the German theorist <a href="https://www.britannica.com/biography/Gustav-Radbruch">Gustav Radbruch</a> argued that actions authorised by abhorrent Nazi “law” were <a href="https://www.researchgate.net/publication/228229762_Gustav_Radbruch_vs_Hans_Kelsen_A_Debate_on_Nazi_Law">not, in fact, lawful</a> and so the post-war prosecution of people for their actions in Nazi Germany would not be unfair. </p>
<p>Similar issues arose at the <a href="https://www.theguardian.com/law/2020/nov/15/the-slate-will-never-be-clean-lessons-from-the-nuremberg-trials-75-years-on">Nuremberg International Military Tribunal</a> in 1945 because the trial of senior Nazis there was the first time anyone had ever been put on trial for “crimes against humanity” and “waging aggressive war”. The defence argued that those crimes were not clearly established in international criminal law when they were said to have been committed.</p>
<figure class="align-center ">
<img alt="Former high-ranking Nazi officials in the dock at the Nuremberg War Crimes Trials, 1946." src="https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">‘Natural law’: high-ranking Nazi officials on trial at Nuremberg.</span>
<span class="attribution"><span class="source">US National Archives</span></span>
</figcaption>
</figure>
<p>The judgment at Nuremberg made the not entirely convincing claim that it should have been obvious that these categories of international crime already existed, but it also stated that the rule against retrospective prosecution might not apply in the face of the scale of Nazi atrocities in any event.</p>
<h2>Arguments and amnesties</h2>
<p>More recently, the communist regimes of central and eastern Europe toppled and the newly democratic states joined the Council of Europe and signed the European Convention on Human Rights. Many of these states were, for the first time, now able to embark on the prosecution of people for their actions under communism, such as suppressing the failed <a href="http://news.bbc.co.uk/2/hi/uk_news/6069582.stm">1956 uprising</a> in Hungary, or killing people seeking to cross the <a href="https://www.bbc.co.uk/archive/the-berlin-wall/zdphd6f">Berlin Wall</a> to flee communist East Germany. </p>
<p>Defendants have argued not just that their prosecution was unfair because a prosecution was unforeseeable when they carried out the alleged crimes – but also that it violates the European Convention, which confirms that people can only be convicted of offences that existed at the time they were allegedly committed. The European Court of Human Rights has tended to take the <a href="https://www.echr.coe.int/Documents/Guide_Art_7_ENG.pdf">position</a> that where the actions were clearly contrary to international law, it does not matter if they were permitted by a state’s national legislation under communism.</p>
<p>This does not mean, however, that globally we are free of the notion of show trials and political trials that, like those in Myanmar, claim to be lawful but are anything but. Even in Europe, the hastily convened and poorly organised military “trial” and resulting execution of <a href="https://www.huffpost.com/entry/trial-and-execution-the-d_b_401497">Romanian dictator Nicolae Ceaușescu</a> and his wife on Christmas Day 1989 is a clear example. </p>
<p>The trial of <a href="https://www.amnesty.org/en/documents/mde14/044/2006/en/">Saddam Hussein</a> at the Supreme Iraqi Criminal Tribunal, an Iraqi national court, came close: it has been alleged that there was political interference and that the potentially very strong case against him was inadequately set out. Moreover, defence witnesses and lawyers were intimidated – and several were murdered. But even a weak trial was probably at least a step up from extrajudicial targeted killing, for example by <a href="https://www.theatlantic.com/international/archive/2018/08/trump-war-terror-drones/567218/">drone strikes</a>, that we have seen ordered by presidents and prime ministers of all political persuasions throughout the “war on terror”. </p>
<p>At the other extreme, there are examples of crumbling regimes attempting to provide themselves with an amnesty against prosecution – such as when military dictatorships established in Argentina and Chile in the 1970s came to an end in <a href="https://www.hrw.org/news/2005/06/14/argentina-amnesty-laws-struck-down">1983</a> and <a href="https://www.hrw.org/legacy/campaigns/chile98/chile-justice-anly.htm">1990</a>, respectively. Indeed, the Argentine Supreme Court only struck down their amnesty law in 2005. That ruling took inspiration from the case law of the <a href="https://www.corteidh.or.cr/index.cfm?lang=en">Inter-American Court of Human Rights</a>, which has ruled that such amnesties violate the human rights of surviving victims and dead victims’ next of kin.</p>
<p>There are, however, more democratic conditional amnesties, such as those granted in South Africa during the process of “Truth and Reconciliation” after the fall of apartheid: the <a href="https://www.justice.gov.za/trc/">South African Truth and Reconciliation Commission</a>, led by Archbishop Desmond Tutu, accepted over 1,000 applications for amnesty – in return for the applicant agreeing to testify to the Commission.</p>
<p>Back to the issue of Myanmar, it can only be hoped that the military government shows some restraint in its use and abuse of “the law”. But, given the country’s track record of violence, and <a href="https://www.bbc.com/news/world-asia-56094649">the growing protests against its coup</a>, it is questionable for how long even the pretence of acting according to the law will last.</p><img src="https://counter.theconversation.com/content/155523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Sweeney is a Research Fellow of the Foreign Policy Centre <a href="https://fpc.org.uk/">https://fpc.org.uk/</a></span></em></p>‘Show trials’ by dictatorships have repeatedly been shown to have no basis in law.James Sweeney, Professor, Lancaster Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1534562021-02-11T13:46:04Z2021-02-11T13:46:04ZGhana’s media need to up their game in covering the presidential election court case<figure><img src="https://images.theconversation.com/files/383237/original/file-20210209-17-1xhgp2.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ghana's Supreme Court plays a key role in election disputes</span> <span class="attribution"><span class="source">Nii Darku Otoo/CitiNewsroom</span></span></figcaption></figure><p>Ghana, touted for its democracy and peaceful transfer of power since 1992, faced its first presidential election dispute in 2012. This was the sixth election of the country’s <a href="https://www.researchgate.net/publication/326756749_Electoral_Politics_in_Ghana's_4th_Republic_1992-2016_and_its_Implications_on_Future_Elections">fourth republic</a>.</p>
<p>Six months prior to the elections, the sitting president, <a href="https://www.bbc.com/news/world-africa-18972107">John Evans Atta Mills</a>, passed away and the vice-president, <a href="https://www.aljazeera.com/news/2012/7/25/ghana-swears-in-mahama-as-new-president">John Mahama</a>, was sworn in as president. </p>
<p>When the Electoral Commission declared the incumbent the winner of the presidential poll, the outcome was <a href="https://ghalii.org/gh/judgment/supreme-court/2013/137">disputed</a> by Nana Addo Dankwa Akufo-Addo, presidential candidate of the leading opposition party, the New Patriotic Party. He petitioned the Supreme Court to annul some 3,000,000 votes. </p>
<p>The Election Petition Case, as it was called, was heard publicly. In August 2013, the <a href="https://www.dw.com/en/ghanas-supreme-court-upholds-election-result/a-17054771">Supreme Court</a> ruled that the president had been validly elected and dismissed the petition. </p>
<p>Ghanaians went to the polls again in December 2020. Akufo-Addo was re-elected in the first round after <a href="https://www.bbc.com/pidgin/tori-55237020">securing</a> a majority of the votes. But Mahama contested the outcome and has <a href="https://citinewsroom.com/2020/12/mahama-rejects-2020-election-results-full-speech/">petitioned</a> the Supreme Court.</p>
<p>Presidential election petitions are important because they trigger all three arms of government – the executive, the legislature and the judiciary. They provide an opportunity for citizens to understand the political and legal issues at play and affirm the strength of national institutions. </p>
<p>Given the significance of these petitions, the media’s role in portraying them matters a great deal. But how have the media covered presidential election petitions and what should we expect in media coverage? My <a href="https://www.tandfonline.com/doi/abs/10.1080/17512786.2020.1784775?journalCode=rjop20">research</a> into how the Ghanaian media framed the 2012 election petition provides some insights.</p>
<p>It was expected that the media would explain the constitutional and electoral issues at stake and why they mattered, to help Ghanaians understand and participate in the democratic process. But I found that the media did a poor job by covering the election petition like any other political campaign. They failed to explain all substantial aspects of the case and depended mainly on partisan sources to the detriment of other legal voices. </p>
<p>I suggest that the media in Ghana and by extension other developing countries need to educate citizens about these judicial processes, issues and implications for the voter. Journalists need to include sources who can clearly explain the judicial and constitutional issues at play.</p>
<h2>The 2012 election petition</h2>
<p>The objectives of my study were to establish:</p>
<ul>
<li><p>whether media coverage followed the lines of normal political coverage focusing on who was winning or losing. </p></li>
<li><p>whether coverage provided insights into the constitutional and electoral issues at play, and</p></li>
<li><p>whose voices were heard. </p></li>
</ul>
<p>I focused on the digital platforms of the leading elite English language and Akan language radio stations. These were Joy Fm and Peace Fm. Their wide listenership made good proxies for other elite and popular media in Ghana. I sampled 400 publications out of the 732 publications.</p>
<p>I assessed the overarching frame of the story – that is, whether it focused on winners and losers or on constitutional and electoral issues at stake. </p>
<p>I further assessed whether coverage focused on conflicts or disagreements, attributed causes or solutions to something or someone, considered the economic consequences, or indicated impacts on individuals. </p>
<p>I also looked at the type of sources used and the tone of headlines.</p>
<h2>Findings</h2>
<p>Overall, both publications mainly presented the election petition as a competition between the incumbent and the opposition by focusing on conflict and responsibility in the proceedings. </p>
<p>Rather than including a diversity of sources, both publications depended almost entirely on official sources – mainly politicians or partisan sources.</p>
<p>I concluded that presenting a legal and constitutional issue merely as a competition between two political parties diverted attention from the electoral issues at stake. </p>
<p>Secondly, it ran the risk of making audiences question the authority of the Supreme Court justices. For instance, a story titled “Tsatsu fights off judges, Addison wears out Atuguba” suggested a fight between the lawyers and judges. </p>
<p>The media’s reliance on partisan sources was also problematic as it led to <a href="https://www.euppublishing.com/doi/10.3366/ajicl.2015.0123">dubious analysts and veiled politicians</a> being used extensively. Neither provided sound analysis of the process and its importance.</p>
<p>Although the use of these sources was not surprising given the political nature of the trial, more legal voices should have been aired to explain the constitutional issues at stake.</p>
<h2>Wake up call</h2>
<p>The Ghanaian media have another opportunity to engage citizens with the most recent presidential election petition. </p>
<p>Journalists need to consider using diverse voices and affording them the same prominence in news stories. They need to move beyond the routine coverage processes to engage and involve citizens and explain the reasoning of the justices to audiences. </p>
<p>The media, which like to promote themselves as nonpartisan, should step up to the plate and provide a service of educating their audiences.</p><img src="https://counter.theconversation.com/content/153456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Esi Thompson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Ghanaian media decides how the public understands proceedings from the Supreme Court.Esi Thompson, Assistant Professor, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1398202020-06-09T12:19:53Z2020-06-09T12:19:53ZStates are making it harder to sue nursing homes over COVID-19: Why immunity from lawsuits is a problem<figure><img src="https://images.theconversation.com/files/340229/original/file-20200608-176550-3divki.jpg?ixlib=rb-1.1.0&rect=0%2C95%2C2113%2C1312&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">At least 21 states have taken actions within the last four months to limit the liability of health care providers related to the coronavirus.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/felisa-gonzalez-touches-the-hand-of-her-mother-maria-maillo-news-photo/1224850091">David Ramos/Getty Images</a></span></figcaption></figure><p>The coronavirus has devastated nursing homes across the country, killing <a href="http://aarp.org/caregiving/health/info-2020/coronavirus-nursing-home-cases-deaths.html">tens of thousands</a> of vulnerable older Americans. Nursing homes did not cause the pandemic, but poor infection control, inadequate staffing and sluggish mitigation allowed the virus to spread. </p>
<p>Rather than doing more to hold these facilities accountable, however, states increasingly are protecting them from lawsuits. </p>
<p>That shift is happening quickly. At least 21 states have taken actions within the last four months to limit the liability of health care providers, with nine states expressly including nursing homes. The industry is <a href="https://www.documentcloud.org/documents/6834898-DeSantis-Letter-Immunity-FNL.html">calling for similar protection in other states</a>, and at the federal level, nursing homes are <a href="https://www.law360.com/articles/1277204/trade-groups-join-chamber-s-push-for-virus-liability-shield">connecting with other trade groups</a> to push for expansive, national immunity from lawsuits.</p>
<p>Essentially, these states are protecting nursing homes from aggrieved residents and their loved ones who may have suffered harm, injuries or death due to their actions – or inactions – during COVID-19. </p>
<p><iframe id="6rVta" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/6rVta/8/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>The <a href="https://www.wsj.com/articles/hospitals-nursing-homes-seek-more-liability-shields-11590226200">industry argues</a> that staff members need to feel safe <a href="https://dig.abclocal.go.com/kgo/PDF/050120-kgo-immunity-pdf.pdf">making decisions with scarce resources</a>. It has long argued that it already has enough oversight in the form of government regulation and visits from residents’ families. But <a href="https://blog.petrieflom.law.harvard.edu/2020/05/29/covid19-nursing-homes-care-facilities/">regulation and enforcement have been declining</a>, particularly over the last three years. Regulatory penalties are generally low, and <a href="https://www.nytimes.com/article/coronavirus-nursing-homes-racial-disparity.html">shutting down troubled nursing homes is rare</a>. Amid the pandemic, family members haven’t been allowed inside most nursing homes to avoid bringing the virus in.</p>
<p>The result leaves residents with little recourse to hold nursing homes to account.</p>
<p>As <a href="https://scholar.google.com/citations?user=wqjX6fAAAAAJ&hl=en">law</a> <a href="https://scholar.google.com/citations?user=PFmB2IsAAAAJ&hl=en">professors</a> in the area of health care law and policy, we view the industry’s demands for additional protections against lawsuits as a dangerous overreach at a time when high numbers of health violations show nursing homes need more oversight, not less.</p>
<h2>The risks were clear before COVID-19</h2>
<p>It was clear long before the pandemic began that U.S. nursing homes were vulnerable to an infectious disease outbreak.</p>
<p>A <a href="https://www.gao.gov/assets/700/699721.pdf">Government Accountability Office report</a> released in 2019 found that 82% of nursing homes, over 13,000 facilities, had been cited for problems related to infection control. The industry’s longstanding <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4833431/">staffing</a> and <a href="https://www.cdc.gov/longtermcare/index.html">infection</a> problems have been well-documented.</p>
<p>Yet, when the pandemic reached the U.S., many of these facilities failed to implement <a href="https://www.nytimes.com/2020/04/28/opinion/coronavirus-nursing-homes.html">basic protocols</a> to slow the spread of infection, with <a href="https://www.kff.org/medicaid/issue-brief/state-reporting-of-cases-and-deaths-due-to-covid-19-in-long-term-care-facilities/">devastating consequences</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/340231/original/file-20200608-176571-1gld6gc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Most nursing homes are designed for communal living, where residents can eat together and interact throughout the day. That creates opportunities for the coronavirus to spread.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/group-plays-cribbage-at-the-billlerica-senior-center-in-news-photo/1207376614">Jonathan Wiggs/Boston Globe via Getty Images</a></span>
</figcaption>
</figure>
<p>By early June, about 40,000 people had died from the coronavirus in long-term care facilities in the U.S., about <a href="https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-address-coronavirus/">45% of the nation’s COVID-19 deaths</a>, and <a href="https://theconversation.com/failure-to-count-covid-19-nursing-home-deaths-could-dramatically-skew-us-numbers-137212">the numbers are likely higher</a>. In Minnesota, Rhode Island and Pennsylvania, the toll in nursing homes has been <a href="https://theconversation.com/failure-to-count-covid-19-nursing-home-deaths-could-dramatically-skew-us-numbers-137212">closer to 80%</a> of coronavirus deaths in the state. </p>
<p>The communal nature of nursing homes and frequent movement among rooms by staff create risks when diseases spread easily, but those risks can be reduced. Nursing homes should follow <a href="https://www.cms.gov/files/document/4220-covid-19-long-term-care-facility-guidance.pdf">guidance from the Centers for Medicare and Medicaid Services</a> and <a href="https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html">the CDC</a> which includes isolating residents with symptoms. Across the country, however, nursing home staff <a href="https://www.cnn.com/2020/05/14/us/nursing-home-workers-safety-coronavirus-invs/index.html">warned government regulators</a> about conditions in facilities and how management brushed them off. </p>
<h2>How states are creating immunity</h2>
<p>Despite these deficiencies, the industry says it should have exceptional immunity from liability. Nursing homes say there are too many factors out of their control, including <a href="https://www.leadingage.org/sites/default/files/Katie%20Smith%20Sloan%20Remarks%205.7.pdf?_ga=2.86670234.345599261.1591393618-232150256.1591393618">personal protective equipment and testing</a>, which impacts their ability to control the spread of COVID-19 in their facilities. </p>
<p>Most governors reacted to COVID-19 with <a href="https://web.csg.org/covid19/executive-orders/">emergency orders</a>. These <a href="http://gov.nv.gov/News/Emergency_Orders/2020/2020-04-01_-_COVID-19_Declaration_of_Emergency_Directive_011/">triggered preexisting provisions</a> of state law that protect health care providers who are called on by the state to assist during an emergency. The orders grant immunity for good faith efforts under the notion that these acts are in the public interest.</p>
<p>Several states have expressly granted immunity for nursing homes, from <a href="https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7U.pdf?la=en">Connecticut</a> to <a href="https://governor.hawaii.gov/wp-content/uploads/2020/04/2004090-ATG_Executive-Order-No.-20-05-distribution-signed-1.pdf">Hawaii</a>. Other states, including <a href="https://docs.legis.wisconsin.gov/2019/related/acts/185.pdf">Wisconsin</a>, may not specifically state “nursing homes,” but they define health care facilities broadly. As a result, nursing homes may be able to argue that they are protected. <a href="https://www.mlmic.com/wp-content/uploads/2020/04/NYS-Article-30-D-of-the-Public-Health-Law.pdf">New York</a> has the broadest liability shield, and one that nursing home <a href="https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html">lobbyists reportedly helped draft</a>.</p>
<p>These are not perfect liability shields. Residents or their families will argue these new laws protect only against lawsuits involving <a href="https://azgovernor.gov/sites/default/files/eo_2020-27_the_good_samaritan_order.pdf">emergency triage decisions</a>, mitigation or treatment efforts, not the acts or omissions that led to the virus taking root in nursing homes in the first place. There is also uncertainly about the time frame these shields apply to. Do they extend backward to the early days of the virus or forward to after emergency orders expire? </p>
<h2>A larger trend to avoid liability</h2>
<p>This latest effort by the nursing home industry to reduce liability exposure is part of a larger legislative trend. </p>
<p>State malpractice reform laws sometimes include nursing homes and <a href="https://codes.findlaw.com/tx/civil-practice-and-remedies-code/civ-prac-rem-sect-74-302.html">limit damages</a> or create <a href="https://codes.findlaw.com/in/title-34-civil-law-and-procedure/in-code-sect-34-18-8-4.html">additional steps</a> for plaintiffs. </p>
<p>Nursing homes also often include arbitration clauses in their admissions contracts. These prevent injured residents or their families from filing a lawsuit. The federal government prohibited these clauses, but nursing home lobbyists succeeded in <a href="https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-14945.pdf">overturning that policy</a> in 2019. Some states still <a href="https://law.justia.com/codes/california/2011/hsc/division-2/1599.60-1599.84/1599.81">ban arbitration clauses</a>.</p>
<h2>Holding ‘systemic failures’ to account</h2>
<p>Life Care Center of Kirkland, Washington, one of the first nursing homes that failed to control an outbreak, has been tied to over <a href="https://www.washingtonpost.com/investigations/major-nursing-home-chain-violated-patient-care-infection-control-standards-before--and-after--pandemic-started-records-show/2020/05/16/f407c092-90b1-11ea-a0bc-4e9ad4866d21_story.html">129 COVID-19 infections and 40 deaths</a>. </p>
<p>Regulators found the facility demonstrated “<a href="https://www.washingtonpost.com/investigations/wash-nursing-home-faces-611000-fine-over-lapses-during-fatal-coronavirus-outbreak/2020/04/02/757cee76-7498-11ea-87da-77a8136c1a6d_story.html">systemic failure</a>,” including failure to report and continued intake of new residents. However, regulators imposed penalties of just <a href="https://www.washingtonpost.com/investigations/wash-nursing-home-faces-611000-fine-over-lapses-during-fatal-coronavirus-outbreak/2020/04/02/757cee76-7498-11ea-87da-77a8136c1a6d_story.html">US$611,000 in fines and allowed months to “correct” the errors</a>. This level of minimal enforcement is considered insufficient to deter misconduct. Therefore, the threat of lawsuits is an important tool to guard against substandard care for older Americans.</p>
<p><a href="https://www.congress.gov/bill/116th-congress/house-bill/6698">Federal legislation</a> proposed in the U.S. House of Representatives in May aims to improve quality care in long-term care. It targets the spread of infection by increasing inspections and imposing stricter protocols for testing and reporting.</p>
<p>Meanwhile, we believe nursing homes should not be allowed to escape lawsuits brought by families who trusted them to take care of their loved ones. These are not “frivolous” lawsuits. The standards they impose are not overly burdensome. All that is asked is for nursing homes take reasonable care of those entrusted to them.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em>]</p><img src="https://counter.theconversation.com/content/139820/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nearly half the states have reduced liability for health care providers at a time when nursing home regulation is declining and families can’t visit loved ones for fear of spreading the coronavirus.Tara Sklar, Professor of Health Law and Director, Health Law & Policy Program, University of ArizonaNicolas Paul Terry, Professor of Law, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1398662020-06-04T19:59:27Z2020-06-04T19:59:27ZHigh Court decision today on the long legal battle over New Acland Coal mine expansion<p>After years of litigation, Australia’s highest court will today make a major decision on the fate of the controversial proposed expansion to the New Acland Coal mine in Queensland.</p>
<p>A so-called “special leave application”, if successful, may eventually see the matter sent back to Queensland’s Land Court for a new hearing. </p>
<p>If the application fails, the mine expansion is one big step closer to proceeding, with only a few approvals left to obtain. </p>
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Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
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<p>If approved, the project will have serious ramifications for prime agricultural land and groundwater in the region. As one opponent, Oakey Coal Action Alliance (OCAA) secretary Paul King, has <a href="https://www.queenslandcountrylife.com.au/story/6523055/new-hope-hits-out-at-more-delaying-tactics/">said</a>:</p>
<blockquote>
<p>We believe it is really crucial that these important matters are tested in court, because once groundwater is lost it’s most likely lost forever.</p>
</blockquote>
<p>Today’s ruling will also have ramifications for the law of apprehended bias, which is a perception by a fair observer that a “<a href="http://eresources.hcourt.gov.au/showCase/2000/HCA/63">judge might not bring an impartial mind to the resolution of the question the judge is required to decide</a>”.</p>
<h2>The proposed coal mine</h2>
<p>The <a href="https://www.newhopegroup.com.au/content/projects/operations/new-acland-1">New Acland Coal mine</a> is located on Queensland’s Darling Downs about 170km west of Brisbane and just north-west of Toowoomba.</p>
<p>The mine began operating in 2002 and a decade later was producing more than 5 million tonnes of thermal coal each year.</p>
<p>New Acland Coal is now seeking approval for stage 3 of the mine, which would produce 9 million tonnes of coal per year from new pits to the south of the existing mine.</p>
<p>The mine sits in the middle of prime agricultural land. Farmers and the community are deeply concerned the proposed expansion will have serious impacts including groundwater depletion, noise, air quality, visual amenity, soil damage, social disruption and land values. It will also absorb the town of Acland.</p>
<p>After some scaling down, the Queensland Labor government <a href="https://www.abc.net.au/news/2015-08-31/acland-mine-draft-authority-for-expansion-issued/6736146">issued a draft environmental authority</a> for the project in 2015. Commonwealth approval followed in 2017.</p>
<h2>The start of litigation – the Land Court</h2>
<p>A large group of farmers and residents, including <a href="http://ocaa.com.au/">OCAA</a>, took their objections to the draft environmental authority and mining lease to Queensland’s Land Court.</p>
<p>These objections were heard together in 2016 in a mammoth 100-day hearing, the longest in the 120-year history of the court. In an <a href="https://archive.sclqld.org.au/qjudgment/2017/QLC17-024.pdf">equally mammoth recommendation</a> spanning almost 2,000 paragraphs, then Land Court member Paul Smith recommended the mining lease and environmental authority be rejected.</p>
<p>Not all the objections succeeded. Smith based his refusal on groundwater modelling inadequacies, make-good arrangements for landholders, noise impacts and agricultural impacts.</p>
<h2>Judicial review – the Supreme Court</h2>
<p>New Acland Coal applied for judicial review of Smith’s recommendation on 15 initial grounds. One of these was apprehended bias.</p>
<p>The apprehended bias allegations included that Smith threatened contempt of New Acland Coal staff during the hearing, questioned their motives, rejected evidence without a genuine basis and assisted the objectors with their arguments.</p>
<p>During the hearing, there was a lot of focus on comments made by New Acland Coal in the media regarding delays in the Land Court. It was suggested Smith had taken personal offence to these statements. </p>
<p>The claim <a href="https://www.abc.net.au/news/2018-05-02/new-acland-coal-mine-expansion-back-on-the-table/9718230">succeeded in 2018</a> on several grounds, mainly related to groundwater. In particular, Justice Helen Bowskill <a href="https://archive.sclqld.org.au/qjudgment/2018/QSC18-088.pdf">found</a> the Land Court does not have jurisdiction to consider groundwater issues. The apprehended bias allegation did not succeed at this stage. </p>
<h2>The rehearing in the Land Court</h2>
<p>The matter was sent back to the Land Court for a limited rehearing, on the issues New Acland Coal succeeded on before the Supreme Court. Land Court president Fleur Kingham in November 2018 <a href="https://archive.sclqld.org.au/qjudgment/2018/QLC18-041.pdf">recommended approval</a> of the mining project.</p>
<p>This was perhaps a reluctant recommendation, given the hearing was necessarily limited in scope. As Kingham said, a full rehearing would have allowed her to consider issues such as New Acland Coal’s past environmental performance in greater detail.</p>
<iframe src="https://www.google.com/maps/embed?pb=!1m18!1m12!1m3!1d46386.28424935637!2d151.66547174809213!3d-27.28058083341267!2m3!1f0!2f0!3f0!3m2!1i1024!2i768!4f13.1!3m3!1m2!1s0x6b9612ae7e63ab49%3A0x3867ab63d21e708c!2sNew%20Acland%20Coal%20Mine!5e1!3m2!1sen!2sau!4v1591236651445!5m2!1sen!2sau" width="100%" height="600" frameborder="0" style="border:0;" allowfullscreen="" aria-hidden="false" tabindex="0"></iframe>
<h2>Appeal and cross-appeal</h2>
<p>This is where is gets complicated. While waiting for the Land Court rehearing, OCAA appealed against Justice Bowskill’s decision to the Court of Appeal in May 2018. New Acland Coal cross-appealed over the finding of no apprehended bias. </p>
<p>In September 2019, the <a href="https://archive.sclqld.org.au/qjudgment/2019/QCA19-184.pdf">Court of Appeal</a> dismissed OCAA’s arguments, but upheld New Acland Coal’s argument that apprehended bias had affected the original Land Court recommendation. </p>
<p>A finding of apprehended bias would generally result in the matter being sent back to the original court or tribunal for a fresh hearing before an independent person.</p>
<p>By this stage, a fresh hearing was not in New Acland Coal’s interests, as it already had a favourable result from the Land Court. However, a fresh hearing would be an opportunity for OCAA to test its arguments before a new Land Court member. </p>
<p>Fortunately for the mining company, the Court of Appeal did not order a rehearing. Instead, the court held the recommendations of Kingham and the findings of Justice Bowskill should stand.</p>
<h2>Application for special leave to appeal</h2>
<p>It is perhaps surprising the Court of Appeal found apprehended bias, but did not order a fresh hearing.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rio-tinto-just-blasted-away-an-ancient-aboriginal-site-heres-why-that-was-allowed-139466">Rio Tinto just blasted away an ancient Aboriginal site. Here’s why that was allowed</a>
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<p>On this basis, OCAA applied to the High Court of Australia for special leave to appeal the decision. If it succeeds in seeking special leave – and is then successful in a hearing before the High Court – the matter will go back to the Land Court for an entirely new hearing on all the facts and issues.</p>
<p>If the application is unsuccessful, the Court of Appeal’s decision will stand. The controversial mine expansion will have officially cleared a major hurdle and be closer to proceeding.</p>
<p>Today’s decision is being closely watched. It may have broad ramifications for future decisions involving apprehended bias. And it could have devastating consequences for farmers and landholders, as well as their land and groundwater supplies.</p><img src="https://counter.theconversation.com/content/139866/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Justine Bell-James receives funding from the Australian Research Council. She has previously published work with employees from the Environmental Defender's Office, who are representing the applicant in this case.</span></em></p>The fate of a Queensland mine extension could be sealed today with a ruling on the ongoing case by Australia’s highest court.Justine Bell-James, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1376862020-05-19T12:13:23Z2020-05-19T12:13:23Z68% of Americans do not have a will<figure><img src="https://images.theconversation.com/files/333232/original/file-20200506-49558-1xb637r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More and more states are allowing people to use Zoom to finish their wills.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/social-relations-at-covid19-social-distancing-times-royalty-free-image/1218176430?adppopup=true">LeoPatrizi/Getty Images</a></span></figcaption></figure><figure class="align-left ">
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<p><em><a href="https://theconversation.com/us/search?utf8=%E2%9C%93&q=significant+figures">Significant Figures</a> is a series from The Conversation in which scholars explain an important number in the news.</em></p>
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<p>As the coronavirus pandemic sweeps through the country, more people may find themselves in <a href="https://ssrn.com/abstract=3572097">urgent need of an estate plan</a>.</p>
<p>But according to one recent survey, 68% of Americans <a href="https://www.caring.com/caregivers/estate-planning/wills-survey">do not have a will</a>.</p>
<p><a href="https://law.rutgers.edu/bio/weisbord/cv">We are</a> <a href="https://law.ucdavis.edu/faculty/horton/">law professors</a> who teach and research trusts and estates. We <a href="http://dx.doi.org/10.2139/ssrn.3572097">recently studied</a> some of the estate planning impacts of the coronavirus and concluded that, in many states, the law is not prepared to address the sudden spike in demand for self-made wills.</p>
<h2>Dying without a will</h2>
<p>The downsides of dying “intestate” – without a will – are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1978559">well documented</a>. Intestacy laws generally distribute property at death to <a href="https://estate.findlaw.com/planning-an-estate/understanding-intestacy-if-you-die-without-an-estate-plan.html">the surviving spouse or descendants</a>, a plan that is not necessarily suitable for unmarried couples and other nontraditional families. </p>
<p>To avoid intestacy, people may create a will by complying with the requirements of the “Wills Act,” law dating back to an <a href="https://www.british-history.ac.uk/statutes-realm/vol5/pp839-842">English statute from 1677</a>. A person who creates a will, called a “testator,” must sign the will or acknowledge a previously made signature in front of two witnesses who are present at the same time. Then, <a href="http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9">the witnesses also must sign the will</a>. </p>
<p>Many states discourage people from writing their own wills by insisting on strict compliance with the Wills Act. For example, courts have refused to enforce documents that the testator apparently <a href="https://law.justia.com/cases/west-virginia/supreme-court/2013/12-0365.html">forgot to sign</a>, instruments signed by <a href="https://www.nytimes.com/2016/10/24/nyregion/a-brownstone-and-the-bitter-fight-to-inherit-it.html">one witness instead of two</a> and documents signed by witnesses who only heard the testator acknowledge his signature <a href="https://www.courtlistener.com/opinion/2604102/matter-of-estate-of-mcgurrin/">over the telephone</a>. </p>
<p>Public health crises, like the current pandemic, pose additional obstacles. Stay-at-home orders and social distancing can make it impossible to find two witnesses, especially for people who are living alone.</p>
<p><a href="https://law.justia.com/cases/wyoming/supreme-court/1983/121177.html">Judges have historically required</a> witnesses to be physically present for the testator’s signature, so traditional law regards videoconferencing methods as nonstarters. </p>
<h2>Wills in the time of coronavirus</h2>
<p>Some American jurisdictions, however, have relaxed these formalities.</p>
<p>About <a href="https://info.legalzoom.com/article/states-where-holographic-wills-are-legal">half the states</a> – including California, New Jersey, Pennsylvania, Texas and Virginia – allow testators to make holographic wills without witnesses. Instead, holographs must be entirely in the testator’s handwriting and signed by the testator. However, empirical research shows that handwritten wills are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476367">disputed in court more frequently</a> than formal wills drafted by an attorney. </p>
<p>Additionally, 11 states have adopted a reform known as <a href="https://pdfs.semanticscholar.org/a2b7/0fdddc251ba33f3ced259f85dbf0cb2c1af5.pdf">harmless error</a>. This rule allows a judge to enforce a writing that does not comply with the Wills Act if there is strong evidence that the testator intended it to be his or her will.</p>
<p>This safety valve reassures testators who lack access to professional advice that a minor misstep will not doom their estate planning efforts. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3006710">Empirical evidence</a> suggests that the rule is not a major source of conflict or litigation.</p>
<p>However, because formal wills remain the only option in about half of the states, lawmakers have responded to the current pandemic by issuing <a href="https://www.actec.org/resources/emergency-remote-notarization-and-witnessing-orders/?utm_source=Informz&utm_medium=Email&utm_campaign=ACTEC&_zs=jFpAX&_zl=JKd32">emergency orders</a> to permit remote witnessing by video communication.</p>
<p>These orders implement ideas from the <a href="https://www.uniformlaws.org/committees/community-home?communitykey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71&tab=groupdetails">Uniform Electronic Wills Act</a>, model legislation introduced in 2019 but not yet adopted by any state. One of COVID-19’s lasting legacies might be bringing the law of wills into the 21st century, as states gain experience with electronic wills and ultimately enact permanent laws to permit them after the pandemic.</p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/137686/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Dying without a will can cause all sorts of problems for families.Reid Kress Weisbord, Professor of Law and Judge Norma Shapiro Scholar, Rutgers University - NewarkDavid Horton, Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1348092020-04-16T14:19:32Z2020-04-16T14:19:32ZWhat COVID-19 reveals about Ghana’s justice system and what needs to change<figure><img src="https://images.theconversation.com/files/326107/original/file-20200407-28951-mbumkd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ghana has spent years developing a trusted justice system.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Black_Star_Monument,_Accra,_Ghana.JPG">Wikimedia Commons</a></span></figcaption></figure><p>Next to the health and economic sectors, the legal and justice sectors of countries have been prominent in the unfolding of the <a href="https://theconversation.com/africa/covid-19">COVID-19</a> pandemic. </p>
<p>The justice sector moderates all other sectors of national life and is as active in peacetime as in times of war or emergency. But I would argue that in Ghana, the justice sector is not ready for this crucial role. </p>
<p>The sector has certainly been presented with work to do in response to this pandemic. A great deal of what it has been asked to do highlights inefficiencies in the system – and in many instances is forcing changes that should have been introduced long before COVID-19 struck.</p>
<p>Recent attempts to adjust the justice system to COVID-19 reveal that many justice sector interactions are completely unnecessary. Some of these are reflected in the arguments I have previously <a href="https://theconversation.com/ghanas-justice-system-needs-a-major-overhaul-heres-what-should-be-done-88724">set out</a> about reforms the system needs.</p>
<h2>COVID-19 changes</h2>
<p>The Ghanaian government has introduced a raft of interventions across the legal and justice system.</p>
<p>For example, it has clarified the constitutional and <a href="https://www.graphic.com.gh/news/politics/ghana-news-parliament-passes-the-imposition-of-restrictions-bill-2020.html">legislative</a> basis for the <a href="https://newsghana.com.gh/ghana-closes-borders-sunday-to-curb-coronavirus-spread/">containment</a> and preventive measures that were put in place. The clauses of the Constitution dealing with emergency powers and limitation of rights were at play. So were the <a href="http://extwprlegs1.fao.org/docs/pdf/gha136559.pdf">Public Health Act</a>, the Immigration Act and many other laws. </p>
<p>But it’s gone further by introducing a new law that elaborates on the limitation of rights within the constitution. The <a href="https://acts.ghanajustice.com/actsofparliament/imposition-of-restrictions-act-2020-act-1012/">Imposition of Restrictions Act</a> was duly passed by parliament.</p>
<p>Using this law, the president has issued several executive instruments detailing measures for containing the virus.</p>
<p>But the new law, as well as the use of old statutes, has sparked controversy. Legal academics have written <a href="https://www.myjoyonline.com/opinion/emergency-without-a-state-of-emergency-effect-of-imposition-of-restrictions-act-2020-on-rights-of-ghanaians/">articles</a> and made public <a href="https://www.modernghana.com/news/994018/the-law-and-the-lockdown.html">statements</a> on the legality and propriety of measures being taken to contain the pandemic. </p>
<p>The government has mobilised the state’s police and <a href="https://www.myjoyonline.com/news/national/police-to-get-firmer-on-enforcing-lockdown-directive/">national security agencies</a>. These are being used to stop gatherings and meetings and to arrest offenders. They are also being used to help health officials trace, track, and quarantine people who may have been in contact with others testing positive for the virus. </p>
<p>Public interest and political lawyers have also brought suits in court to challenge various aspects of the new law, as well as the legal implications of the partial lockdown. For example, Ghanaians were still expected to get their national identification cards in preparation for voter registration. The country is due to go to the polls in December. Legal challenges have been mounted to <a href="https://citinewsroom.com/2020/03/high-court-places-injunction-on-ghana-card-registration-in-eastern-region/">stop</a> the ongoing registration processes on the grounds that they violate the new restrictions on public gatherings and meetings. </p>
<p>Elsewhere in the justice sector, many prisoners have been <a href="https://www.modernghana.com/news/993364/pardoned-808-prisoners-to-be-freed-today.html">processed</a> for release, ostensibly to avoid overcrowding and its health risks if the virus finds its way to the prisons. </p>
<h2>Useful lessons</h2>
<p>Some of the responses to the pandemic show that aspects of Ghana’s justice system are actually unnecessary. Changes have been imposed that should in fact be the norm.</p>
<p>For example, early in the outbreak, the Chief Justice <a href="https://www.modernghana.com/news/989571/coronavirus-cj-restricts-access-to-courts.html">directed</a> the Bench to practise strict case management techniques in a bid to prevent the spread of the virus. </p>
<p>This was long overdue and should have been the case even in ordinary times. The new directive simply underscores that it’s not necessary for people always to have to appear in person for cases. And the number of cases to be heard can be drastically reduced by using alternative dispute resolution mechanisms such as out of court settlements. </p>
<p>Other changes that should have been triggered is that material relevant to a case should be provided to the court before the case begins. Another is a call for greater use of technology in court processes to speed them up and decongest the courts. </p>
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Read more:
<a href="https://theconversation.com/ghanas-justice-system-needs-a-major-overhaul-heres-what-should-be-done-88724">Ghana's justice system needs a major overhaul: here's what should be done</a>
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<p>It is disheartening that it has to take COVID-19 to initiate reforms in a legal system that serves little good to ordinary Ghanaians. </p>
<p>A significant feature of the new coronavirus disease is that it is a leveller. It affects the rich as well as the poor. </p>
<p>I must complete this piece by praying fervently for a justice sector leveller; a natural or other kind of event that will affect users of the justice sector in the same way; something that will equally affect the poor and the rich and influential in Ghana, so that for the first time, the dire need for more and faster reforms in our justice sector will be taken seriously.</p><img src="https://counter.theconversation.com/content/134809/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Raymond A. Atuguba does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The novel coronavirus has necessitated judicial reforms that should have been the norm.Raymond A. Atuguba, Dean, University of Ghana School of Law, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1347912020-03-31T12:17:47Z2020-03-31T12:17:47ZBreaking contracts over coronavirus: Can you argue it’s an ‘act of God’?<figure><img src="https://images.theconversation.com/files/324094/original/file-20200330-165012-6t4tdv.jpg?ixlib=rb-1.1.0&rect=35%2C45%2C2112%2C1432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The NBA suspended its season on March 11, citing the coronavirus risk. A force majeure clause in the NBA contract means players could lose money with each canceled game.</span> <span class="attribution"><a class="source" href="http://apimages.com">AP Photo/Rich Pedroncelli</a></span></figcaption></figure><p>The <a href="https://theconversation.com/us/topics/covid-19-82431">coronavirus pandemic</a> has prevented countless people from fulfilling their contracts, from basketball players to babysitters. </p>
<p>Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed?</p>
<p>Wars, floods and other pandemics have undermined innumerable contracts over the years. In response, U.S. courts have established a fairly clear set of legal rules to answer these questions.</p>
<p>As a <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=315">contracts law professor</a>, I help future lawyers think through how these rules apply in a wide range of situations. That includes what the law says about contracts that are impossible to meet during pandemics.</p>
<h2>The rules of impossibility and restitution</h2>
<p>A promise given in exchange for money becomes an enforceable contract, and it remains enforceable even if living up to its terms turns out to be more challenging than expected.</p>
<p>If a babysitter promises to look after your children once a week for US$50, she is bound to the contract regardless of car trouble, the kids misbehaving or other hardships. If the babysitter gives up, that is a breach of contract and she is legally liable to you. This is what makes a contract a contract and not an idle promise to give it a try.</p>
<p>But what if the babysitter failed to show up because a coronavirus outbreak made it physically dangerous for her to enter your house or because the <a href="https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf">government issued an order to remain home</a> to avoid spreading the virus? </p>
<p>Because this type of extraordinary and unanticipated event, often called an <a href="https://www.latimes.com/business/story/2019-12-24/acts-of-god-consumer-contract">“act of God,”</a> is so radically different from the ordinary risks and challenges of babysitting, and because it makes her performance so much more difficult and dangerous than expected, the courts will excuse her from the contract. Through no fault of her own, her performance has become effectively impossible, and so her failure to babysit does not count as a breach of contract.</p>
<p>That is not the end of the story, though. Under the legal doctrine of restitution, which prohibits unjust enrichment at the expense of another, the babysitter would have to return any money you paid her in advance. She has not breached the contract, but neither has she fulfilled it, so it would be unjust for her to keep that money.</p>
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<img alt="" src="https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/324099/original/file-20200330-174736-1yehfs3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">When universities closed their dorms during the coronavirus outbreak, it meant breaking contracts with students. Many schools, including Howard University, shown here, have agreed to pay partial refunds.</span>
<span class="attribution"><a class="source" href="http://apimages.com">AP Photo/Patrick Semansky</a></span>
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<p>This basic framework – impossibility and restitution – applies generally to contracts that have been upended by the coronavirus pandemic and government orders to combat the virus’s spread.</p>
<p>It does not apply to every expense, however.</p>
<p>If you bought a $100 ticket for a Lady Gaga concert and the event has been canceled, there is no breach of contract, although Lady Gaga would have to refund your $100 as a matter of restitution. But if you bought a nonrefundable $50 train ticket to travel to the concert, Lady Gaga is not liable for that loss. Since that money was never paid to Lady Gaga, she can’t be held responsible for it. </p>
<h2>Force majeure: The escape clause</h2>
<p>In some cases, an escape clause is written into the contract specifically for situations like this. It’s called “force majeure,” which translates to “superior force” and is often referred to as the “act of God” clause.</p>
<p>Force majeure clauses are common in corporate contracts. They dictate which types of unexpected events will excuse performance and how to deal with payments already made or other losses. <a href="https://clsbluesky.law.columbia.edu/2020/03/19/coronavirus-is-becoming-a-majeure-headache-for-pending-corporate-deals/">The precise wording of these clauses is key</a>. Some might expressly mention pandemics or government orders, while others might not. Similarly, some clauses might call for full restitution, while others might provide for 50% refunds or no refund at all. Whatever the force majeure clause says will displace the ordinary rules of impossibility and restitution.</p>
<p>The <a href="https://nbpa.com/cba">contract between the NBA and its players</a>, for example, includes a force majeure clause that specifically covers epidemics. It states that basketball teams can withhold part of their players’ salaries for each canceled game, and ESPN reported that the <a href="https://www.espn.com/nba/story/_/id/28933602/nba-pay-players-full-salaries-april-1-uncertain-after">league was considering</a> it.</p>
<p>Pepperdine University students who have been evicted from their dorms are also bound to a <a href="https://community.pepperdine.edu/housing/policies-procedures/policies-procedures-terms-and-conditions.htm">force majeure clause</a> that specifies no refunds if the dorms are closed in the event of an emergency. This overrides the general rule of restitution. </p>
<p>All that said, parties to a contract are always free to waive their rights under a force majeure clause and provide refunds anyway. <a href="https://pepperdine.zoom.us/rec/play/6MEoJrytqj83H4HHswSDUPV_W9S1fa6shHIf_PNczUq2AnhQYFOiYbESY7Ae84fgEhO_vgQ-fK7yOtyw">Pepperdine officials have promised</a> to do exactly that.</p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-help">Read our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/134791/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Schwartz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The COVID-19 pandemic is forcing companies, universities and even the NBA to break contracts. What does the law say about liability in a situation like this, and does the money have to be returned?Andrew Schwartz, Professor of Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1324442020-02-26T18:54:40Z2020-02-26T18:54:40ZCoercive control is a key part of domestic violence. So why isn’t it a crime across Australia?<figure><img src="https://images.theconversation.com/files/317245/original/file-20200226-24685-1wut7s0.jpg?ixlib=rb-1.1.0&rect=2%2C5%2C995%2C660&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/young-woman-victim-suffering-abuse-harassment-1100198846">Shutterstock</a></span></figcaption></figure><p>The recent <a href="https://www.abc.net.au/news/2020-02-23/hannah-clarke-brisbane-camp-hill-vigil-domestic-violence/11992398">killing</a> of Hannah Clarke and her three children by her estranged husband has raised <a href="https://www.brisbanetimes.com.au/national/queensland/how-to-stop-men-killing-their-wives-and-children-20200220-p542s6.html">national attention</a> to the types of behaviour that might lead to such a horrific crime, and how we might spot it early enough to intervene.</p>
<p>Researchers have <a href="https://theconversation.com/why-do-men-kill-their-families-heres-what-the-research-says-132314">known for decades</a> most family violence involves forms of abuse other than physical violence, such as social isolation, emotional abuse and financial abuse.</p>
<p>However, we are now experiencing a watershed moment where the broader community is starting to recognise that too.</p>
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Read more:
<a href="https://theconversation.com/why-do-men-kill-their-families-heres-what-the-research-says-132314">Why do men kill their families? Here's what the research says</a>
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<p>Evidence is mounting that Hannah’s husband had a <a href="https://www.abc.net.au/news/2020-02-21/brisbane-car-fire-hannah-clarke-rowan-baxter-family-violence/11985024">long history</a> of psychological abuse and controlling behaviours, sometimes called coercive control.</p>
<p>This is something we and others believe should be a crime in all jurisdictions across Australia.</p>
<p>In a nutshell, coercive control is a collection of behaviours designed to strip someone of their sense of autonomy and self-worth. Some examples of these behaviours include removing male contacts from a partner’s social media, dictating where and when their partner sleeps and eats, threats of self-harm if the relationship ends, and physical violence.</p>
<p>Perpetrators are <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819880947?journalCode=crjb">nearly always male</a>. And research by the UK charity <a href="https://www.safelivesresearch.org.uk/Comms/Psychological%20Violence%20-%20Full%20Report.pdf">SafeLives</a> shows perpetrators can come from all works of life and social demographics.</p>
<h2>If we can predict it, we can prevent it</h2>
<p>There is a recognised timeline of behaviours that tend to occur before one partner (or ex-partner) kills the other.</p>
<p>A <a href="https://journals.sagepub.com/doi/abs/10.1177/1077801219863876?journalCode=vawa">review</a> of 372 intimate partner homicides in the UK found many men who kill their intimate partners (and it is almost always men killing women) followed an <a href="https://www.bbc.com/news/uk-49481998">eight-stage homicide timeline</a>.</p>
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<figcaption><span class="caption">The eight stages that tend to lead to one partner killing another.</span></figcaption>
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<p>For instance, the offender tends to have a history of abuse (either against the same or a different victim), the relationship often doesn’t start out as abusive, their behaviour tends to gradually become controlling, there’s a trigger (such as the end of the relationship) and then they escalate and kill their partner. There are clear similarities between the killing of Hannah and her children and this timeline.</p>
<p>Because we can predict these incidents, perhaps <a href="https://www.canberratimes.com.au/story/6640087/qld-car-fire-deaths-were-preventable/?cs=14231">we can prevent them</a>.</p>
<p>Just as importantly, not only is coercive control a warning sign for intimate partner homicide, it is also a wrong in itself. Victims report coercive control is often <a href="https://time.com/5610016/coercive-control-domestic-violence/">worse</a> than all but the most extreme physical violence.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1230060459962884096"}"></div></p>
<h2>It’s time to criminalise coercive control</h2>
<p><a href="https://www.researchgate.net/publication/311453772_Criminalising_emotional_abuse_intimidation_and_economic_abuse_in_the_context_of_family_violence_The_Tasmanian_experience">Tasmania</a> is the only jurisdiction to have made certain coercive controlling behaviours (in particular, economic abuse and emotional abuse) criminal offences in Australia.</p>
<p>But we <a href="https://www.2gb.com/calls-for-controlling-behaviour-to-be-made-illegal/">and</a> <a href="http://www.mygc.com.au/coercive-control-would-be-a-crime-qld-lnp/">others</a> believe coercive control should be a criminal offence in its own right in each state and territory.</p>
<p>Such criminalisation needs to be part of wider reforms to address the <a href="https://aic.gov.au/publications/sr/sr002">unacceptable reality</a> that a current or former partner murders a woman <a href="https://www.ourwatch.org.au/Understanding-Violence/Facts-and-figures">every week</a> in Australia, and <a href="https://www.aihw.gov.au/reports-data/behaviours-risk-factors/domestic-violence/overview">millions</a> of Australians experience emotional abuse by an intimate partner at some stage in their lives.</p>
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Read more:
<a href="https://theconversation.com/its-time-coercive-control-was-made-illegal-in-australia-114817">It's time 'coercive control' was made illegal in Australia</a>
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<h2>How has this worked internationally?</h2>
<p><a href="http://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted">England and Wales</a> made coercive control <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019">a crime in 2015</a>. Ireland and Scotland followed suit in 2019, with promising <a href="https://www.bbc.com/news/uk-scotland-49374667">early results in Scotland</a>. And last week a <a href="https://sd22.senate.ca.gov/news/2020-02-19-senator-rubios-bill-expands-legal-protections-domestic-violence-survivors">Californian senator</a> introduced a bill to criminalise coercive control.</p>
<p>To illustrate the types of cases these laws might apply to, consider the <a href="https://www.breakingnews.ie/ireland/man-who-made-almost-6000-phone-calls-to-girlfriend-jailed-in-countrys-first-coercive-control-conviction-981102.html">first successful conviction</a> for coercive control in Ireland. </p>
<p>According to <a href="https://www.breakingnews.ie/ireland/man-who-made-almost-6000-phone-calls-to-girlfriend-jailed-in-countrys-first-coercive-control-conviction-981102.html">media reports</a>, Kevin Dunleavy called his partner nearly 6,000 times in three months (more than 60 times a day). He made her take her phone with her when she left the house. He made her answer video calls so that she could show him where she was and who she was with. He threatened and attacked her. And he burned her clothes so she couldn’t leave the house.</p>
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Read more:
<a href="https://theconversation.com/technology-facilitated-abuse-the-new-breed-of-domestic-violence-74683">Technology-facilitated abuse: the new breed of domestic violence</a>
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<p>Because the court could look at his behaviour as a whole, he was given a sentence that reflected the overall seriousness of his behaviour, nearly two years in prison.</p>
<h2>It’s not just more law, it’s an ideological shift</h2>
<p>In jurisdictions other than Tasmania, the types of behaviours we might call coercive control are recognised as forms of family violence. But, generally, these behaviours can only be prosecuted as a breach of an intervention order (otherwise known as a domestic or apprehended violence order).</p>
<p>This is an issue because many women who need protection do not have intervention orders. Even when they do, police <a href="https://www.theaustralian.com.au/nation/enforce-domestic-violence-orders-or-women-will-suffer/news-story/fbd512b1dd7abc22f3c5d40c1088816a">don’t always take action</a> when those orders are breached. And it sends the wrong message to victims: that these behaviours are only wrong if a court order is in place.</p>
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<a href="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Not all victims of coercive abuse go to court to get an intervention order, so are not covered by existing domestic violence legislation around Australia.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/retro-photo-composite-greek-style-columns-315538304">from www.shutterstock.com</a></span>
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<p>Criminalising these abusive behaviours demonstrates our strongest denunciation of them. It legitimises victims’ perceptions that what they are experiencing is unacceptable. It gives the broader community a language and shared understanding that can lead to long-term changes in attitudes. It gives police and others in the justice system a tool to intervene. And because of that, it may even save some lives.</p>
<p>There are, though, some concerns. Most importantly, the criminal justice system already <a href="https://journals.sagepub.com/doi/full/10.1177/1748895817728561">struggles</a> to respond to physical violence. And women are often <a href="https://www.womenslegal.org.au/files/file/WLSV%20Policy%20Brief%201%20MisID%20July%202018.pdf">misidentified</a> as the perpetrator, especially in intervention order proceedings. Why should we expect it to do any better with the more complex concept of coercive control?</p>
<h2>Training is critical</h2>
<p>The answer, which is supported by conversations we’ve had with police and service providers in the UK, is that with proper resources and training, criminalising coercive control becomes more than just adding another crime to the thousands already in the statute book. </p>
<p>It necessitates a fundamental shift in the way police, prosecutors and judges see domestic abuse, not as a series of separate events but more like the way victims experience it: cumulatively, and comprehensively.</p>
<p>Criminalising coercive control isn’t, though, as simple as just cutting and pasting from one jurisdiction to another. It would require a detailed review what’s happened in other countries, and how best to legislate in each state and territory. It will also take time to implement, and uptake may be slow, as has been the case in <a href="https://theconversation.com/coercive-control-cases-have-doubled-but-police-still-miss-patterns-of-this-domestic-abuse-100347">England and Wales</a>. That is, this isn’t the sort of reform that can happen overnight.</p>
<p>Instead, criminalising coercive control is the kind of reform that, <em>done right</em>, could lead to generational change in how we as a society conceptualise domestic violence.</p>
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<p><em>If this article has raised issues for you or someone you know, contact the <a href="https://www.1800respect.org.au/">national sexual assault, family and domestic violence counselling service</a> – 1800 RESPECT (1800 737 732).</em></p><img src="https://counter.theconversation.com/content/132444/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Psychological abuse and controlling behaviours can be apparent before perpetrators murder their partners. So let’s take these coercive behaviours more seriously and make them a crime.Dr Paul McGorrery, PhD Candidate in Criminal Law, Deakin UniversityMarilyn McMahon, Deputy Dean, School of Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1242682019-09-26T09:47:35Z2019-09-26T09:47:35ZHome grown cannabis to be legal in the ACT. Now what?<figure><img src="https://images.theconversation.com/files/294268/original/file-20190926-51438-173mape.jpg?ixlib=rb-1.1.0&rect=0%2C17%2C3866%2C2550&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two cannabis plants per person and four per household will be legal in the ACT from January 31.</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/J5UEdHgixEE ">Esteban Lopez/Unsplash</a></span></figcaption></figure><p>The Australian Capital Territory took the next step towards regulation of the illicit drug market yesterday with <a href="https://www.abc.net.au/news/2019-09-25/act-first-jurisdiction-to-legalise-personal-cannabis-use/11530104">new legislation</a> passing through parliament. </p>
<p>The <a href="https://www.legislation.act.gov.au/b/db_59295/">legislation</a>, which won’t come into effect until January 31, 2020, allows cultivation and possession of small amounts of cannabis for personal use for anyone over 18 years.</p>
<p>However, the sale or supply of cannabis is still a criminal offence.</p>
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Read more:
<a href="https://theconversation.com/legal-highs-arguments-for-and-against-legalising-cannabis-in-australia-95069">Legal highs: arguments for and against legalising cannabis in Australia</a>
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<h2>What happens now?</h2>
<p>The ACT has historically been one of the more liberal jurisdictions when it comes to cannabis.</p>
<p>The territory removed criminal penalties for possessing small quantities of cannabis in <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02RP06#legislative">1992</a> and broadened this in 2013. Currently, anyone found in possession of less than 50g of dried cannabis receives a “<a href="https://police.act.gov.au/safety-and-security/alcohol-and-drugs/drugs-and-law">simple cannabis offence notice</a>”, essentially a fine.</p>
<h2>What changes next year?</h2>
<p>The new legislation allows adults to grow cannabis plants at home, with limits of two plants per person and four per household, or to possess 50g of dried cannabis.</p>
<p>Cannabis plants can only be cultivated in parts of someone’s home not generally accessible by the public, and only by people who usually live there.</p>
<p>There is a 150g limit for fresh (or “wet”) cannabis to account for cannabis that has been harvested but not yet dried.</p>
<p>The law allows adults to possess cannabis within these limits without the need for a cannabis offence notice to be issued.</p>
<h2>What safeguards are in place?</h2>
<p>The legislation states cannabis must be kept securely when not in someone’s possession to restrict access by children and young people. Smoking cannabis near children is also an offence.</p>
<p>To protect the interests of children and young people, the simple cannabis offence notice still applies for people under 18. This puts it in line with the way possession of tobacco and alcohol by people under the age of 18 is dealt with.</p>
<p>There are still questions about how this law interacts with stricter Commonwealth laws governing banned drugs, with <a href="https://www.theguardian.com/australia-news/2019/sep/26/peter-dutton-cannabis-christian-porter-challenge-act-law-legalise-drugs">some MPs</a> warning about possible conflicts.</p>
<h2>How does this compare with similar regulation overseas?</h2>
<p>Cannabis <a href="https://adf.org.au/insights/cannabis-legalisation/">regulation</a> comes in many forms internationally. The most common model allows the legal sale or supply of cannabis to adults, with further allowances for home grown plants. </p>
<p>The ACT’s allowance of four plants per household is on par with what other jurisdictions allow internationally. However, the ACT’s allowable weight of possessed cannabis is on the lower scale.</p>
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Read more:
<a href="https://theconversation.com/history-not-harm-dictates-why-some-drugs-are-legal-and-others-arent-110564">History, not harm, dictates why some drugs are legal and others aren't</a>
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<p>Some jurisdictions in Europe allow “<a href="https://transformdrugs.org/cannabis-social-clubs-in-spain-legalisation-without-commercialisation/">cannabis social clubs</a>”, which are a version of a “home grown” model. These are not-for-profit collectives where cannabis is grown and used. Cannabis is not sold. The clubs are only open to members, who own their own plants, and limits to the number of plants per person apply. </p>
<h2>What will the changes achieve?</h2>
<p>Removing offences associated with personal use of cannabis <a href="https://theconversation.com/decriminalisation-or-legalisation-injecting-evidence-in-the-drug-law-reform-debate-6321">reduces the burden on police and the criminal justice system</a>. It also removes the negative consequences associated with criminal convictions for drug use.</p>
<p>Most Australians support the <a href="https://theconversation.com/most-australians-support-decriminalising-cannabis-but-our-laws-lag-behind-99285">removal of criminal penalties</a> associated with cannabis use and possession, and a <a href="http://www.roymorgan.com/findings/6026-how-australians-feel-about-marijuana-201501272145">sizeable proportion</a> support legislation.</p>
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Read more:
<a href="https://theconversation.com/most-australians-support-decriminalising-cannabis-but-our-laws-lag-behind-99285">Most Australians support decriminalising cannabis, but our laws lag behind</a>
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<h2>How will it affect people’s interactions with health services?</h2>
<p>Criminalisation of use and possession of drugs reinforces the stigmatisation of people who use them, a <a href="https://pdfs.semanticscholar.org/ed7a/a83d5922415a60bbe1867f3310ace40fecd4.pdf">major barrier</a> to accessing health services. </p>
<p>The further we move away from the <a href="http://www.drugpolicy.org/issues/brief-history-drug-war">war on drugs</a>, the more illicit drug use becomes a health and human rights issue, potentially reducing stigma.</p>
<p>This law is unlikely to have a big impact on the health system. Most people who use cannabis <a href="https://www.aihw.gov.au/reports/illicit-use-of-drugs/ndshs-2016-detailed/contents/table-of-contents">do so irregularly</a> and acute harms (such as overdoses or severe reactions) are rare.</p>
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Read more:
<a href="https://theconversation.com/men-and-women-use-cannabis-for-different-reasons-46745">Men and women use cannabis for different reasons</a>
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<p>Based on international evidence, full regulation <a href="https://ndarc.med.unsw.edu.au/sites/default/files/Ms%20Vivian%20Chiu%20-%20poster.pdf">does not result</a> in large increases in people using cannabis.</p>
<p>But, with reduced stigma, those who do may be more open to seeking help if their use starts to impact significantly on their day-to-day lives.</p>
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<p>
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Read more:
<a href="https://theconversation.com/cannabis-and-psychosis-what-is-the-link-and-who-is-at-risk-95368">Cannabis and psychosis: what is the link and who is at risk?</a>
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<h2>Will it affect medical cannabis laws?</h2>
<p>Medical cannabis is treated under a completely <a href="https://www.tga.gov.au/access-medicinal-cannabis-products-1">separate law</a>, in line with other pharmaceutical products. So, the change in recreational cannabis laws do not effect medical cannabis prescribing in the ACT.</p>
<p>However, it is possible that under the new laws people will self-medicate rather than go through medical channels. So they may not have the appropriate medical monitoring of their condition.</p>
<h2>Will other jurisdictions follow?</h2>
<p>Each state and territory determines its own drug laws. Currently there is <a href="https://theconversation.com/australias-recreational-drug-policies-arent-working-so-what-are-the-options-for-reform-55493">significant variation</a> in both legal frameworks and implementation of laws in each jurisdiction. So, it is hard to tell whether other jurisdictions will follow. </p>
<p>Some <a href="https://www.theage.com.au/politics/victoria/fiona-patten-moves-to-legalise-cannabis-predicts-revenue-of-205m-20181219-p50n4t.html">Victorian politicians</a> have been advocating for cannabis legalisation, but this may be some way off. Reason Party leader Fiona Patten has successfully campaigned for a <a href="https://joy.org.au/theinformer/2019/05/30/new-cannabis-parliamentary-inquiry-to-start/">parliamentary inquiry</a> into cannabis to investigate the matter further.</p><img src="https://counter.theconversation.com/content/124268/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicole Lee works as a paid consultant in the alcohol and other drug sector. She has previously been awarded grants by state and federal governments, NHMRC and other public funding bodies for alcohol and other drug research</span></em></p><p class="fine-print"><em><span>Jarryd Bartle works as a drug policy consultant for various organisations, which may financially benefit from the legalisation of cannabis.</span></em></p>What will the new legislation mean for cannabis users in the ACT? And will other jurisdictions follow?Nicole Lee, Professor at the National Drug Research Institute, Curtin UniversityJarryd Bartle, Sessional Lecturer in Criminal Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1227402019-09-10T13:33:35Z2019-09-10T13:33:35ZExplainer: how Nigeria got hit with a $9.6 billion judgment debt in London<figure><img src="https://images.theconversation.com/files/291547/original/file-20190909-109939-u8bgzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Oil and gas is the lifeblood of Nigeria's economy</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Nigeria has received a legal hiding after a UK court awarded a private company a US$9.6 billion <a href="https://www.grantthornton.co.uk/insights/quantum-matters--record-usd6.6bn-award-against-nigeria/">judgment debt</a> against the West African nation. The ruling has generated significant attention in both domestic and international media. This is understandable given that the sum amounts to 20% of the country’s foreign <a href="https://thenationonlineng.net/9-6bn-judgment-fraudulent-target-on-our-foreign-reserve-fg/">reserves</a>. This means it poses a significant threat to its economy. </p>
<p>The big question is: What went wrong? How did Nigeria end up in this costly situation? For the answer, we must look back to January 2010 and a gas supply contract that went horribly wrong.</p>
<h2>The Background Story</h2>
<p>On 11 January 2010 Process and Industrial Development (P&ID), a company based in the British Virgin Islands, signed a contract with the Federal Government of Nigeria. This contract is called a gas supply and processing agreement. Nigeria’s government agreed that, over a 20-year period, it would supply natural gas (wet gas) to P&ID’s production facility. </p>
<p>In return, P&ID would process the wet gas by removing natural gas liquids and return approximately 85% of it to the government in the form of lean gas. This lean gas was to be returned at no cost to the Nigerian government. </p>
<p>Based on this agreement, Nigeria was supposed to arrange for the supply of wet gas to P&ID’s gas processing facility which it intended to build in the country’s Cross Rivers State. This required the government to construct pipelines and arrange facilities for transporting the wet gas. The government failed to do this for three years. </p>
<p>P&ID viewed this failure as a repudiation of the contract. In simpler terms, this means that the government renounced their obligation under the contract. Consequently, in March 2013, P&ID began an <a href="https://www.grantthornton.co.uk/insights/quantum-matters--record-usd6.6bn-award-against-nigeria/">arbitration</a> action against the government before a London tribunal.</p>
<p>Clause 20 of the agreement, which both parties signed, provided that any disputes were to be resolved by arbitration with the seat of arbitration being London, England or any other place agreed by the parties. Nigeria tried to contest this, but its appeal to have the tribunal sit in Nigeria failed.</p>
<p>At the tribunal, P&ID <a href="https://pacer-documents.s3.amazonaws.com/36/194469/04516479471.pdf">claimed</a> that it had invested $40 million in the project even though it had not acquired the land or built any facilities for gas processing. It claimed damages of about US$6.6 billion dollars: the amount of the net income it would have earned over the 20-year period of the agreement. </p>
<p>In response, the government argued that the damages claimed were not a fair and reasonable consequence of the government’s breach of the agreement. This is because P&ID never commenced building the gas processing facility. It also argued that P&ID should be awarded only three years’ worth of income as by that time, the company should have found some other profitable investment which would reduce its losses from the breach. </p>
<p>Similarly, the government objected to the measure of estimated expenses and income stream which P&ID used to calculate its damages claim. </p>
<h2>The tribunal’s decision</h2>
<p>In July 2015 the tribunal decided that by failing to fulfil its obligations, the government had repudiated the agreement. P&ID was therefore entitled to damages. </p>
<p>In January 2017, the tribunal by a majority of 2 to 1 made a final award of US$6.597 billion together with interest at the rate of 7% starting from 20 March 2013 until payment is made. The 7% <a href="https://pacer-documents.s3.amazonaws.com/36/194469/04516479471.pdf">interest</a> reflects what P&ID would have paid to borrow the money or earned by investing the money in Nigeria. </p>
<p>Following the tribunal’s award of damages, in March 2018, P&ID brought an action before the Queen’s Bench Division of the English Commercial Court. It wanted permission to enforce the damages awarded by the tribunal. Despite delays by the Nigerian government, on 16 August 2019, the court made an order enforcing the tribunal’s final award which now stands at about $9.6 billion. </p>
<p>In making this award, the court noted that the damages awarded were purely compensatory and not intended to punish the Nigerian government. The court also confirmed that there were no public policy grounds on which the award should not be enforced. This decision converts the arbitration award to a legal judgement. </p>
<p>This case perhaps highlights issues with Nigeria’s ability to effectively manage its oil and gas resources as well as its facilities. Between January and June 2019 alone, it is reported that Nigeria <a href="https://guardian.ng/news/why-crude-oil-losses-persist-despite-huge-surveillance-contracts/">lost</a> 22 million barrels of crude oil.</p>
<p>These losses have been largely attributed to pipeline vandalism and aged pipelines. The Nigerian National Petroleum Corporation recently spent billions on oil pipelines maintenance. But other problems, such as <a href="http://saharareporters.com/2018/11/20/exclusive-protests-nnpc-awards-1848m-contract-without-following-due-process">corruption</a> and fraud in awarding security surveillance contracts for pipelines, persist.</p>
<h2>Next steps</h2>
<p>The $9.6 billion appears to be the largest amount of damages awarded against Nigeria to date. Evidence however suggests this is not the first time that Nigeria has failed to meet its contractual obligations. In 2016 it was reported that investors in Nigeria’s power sector <a href="https://qz.com/africa/591036/investors-are-threatening-to-pull-out-of-nigerias-fragile-privatized-power-sector/">threatened</a> to pull out due to the government’s failure to meet its contractual obligations.</p>
<p>This case also demonstrates an ongoing issue with the government’s attitude to critical infrastructural projects. The <a href="https://www.researchgate.net/publication/309943763_Politics_of_Hydroelectric_Power_Development_in_Nigeria_A_Case_Study_of_the_Mambilla_Hydroelectric_Power_Project">Mambilla</a> hydroelectric power project is a case in point. In spite of the huge potential offered by the project, it has been plagued by several controversies ranging from corruption and embezzlement of funds to the “irregular” awarding of contracts, and a general lack of political will. </p>
<p>The Nigerian government is yet to pay the judgement debt. <a href="https://www.vanguardngr.com/2019/08/fg-alleges-conspiracy-in-9-6bn-judgment-debt/">Allegations</a> of domestic and international conspiracy surrounding the agreement continue to abound. For now, the government has said that it intends to appeal the amount awarded.</p><img src="https://counter.theconversation.com/content/122740/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Oludara Akanmidu does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>One of the world’s largest producers of oil has lost a legal battle that could have dire consequences on its fragile economy.Oludara Akanmidu, Lecturer in Law, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1203942019-07-17T16:03:39Z2019-07-17T16:03:39ZTrump wasn’t the first president to confront the Supreme Court – and back down<p>A key presidential election is approaching. The U.S. Supreme Court hears a case with powerful political implications. The court rules, but the populist president doesn’t care. Our national commitments – to the Constitution, to morality, to the rule of law – seem at risk.<br>
Then, the president backs down. The nation survives.</p>
<p>This might be the story of President Trump’s short-lived threat to get a citizenship question on the census <a href="https://twitter.com/realDonaldTrump/status/1146435093491277824">in defiance of the Supreme Court</a>. Instead, it’s the story of President Andrew Jackson and <a href="https://supreme.justia.com/cases/federal/us/31/515/">Worcester v. Georgia, decided in 1832</a>.</p>
<p>Like the modern relationship between the president and the court, the case dominated public debate, raising deep questions about the endurance of the rule of law. At the height of the crisis, former President John Quincy Adams wrote, “<a href="https://www.worldcat.org/title/memoirs-of-john-quincy-adams-comprising-portions-of-his-diary-from-1795-to-1848/oclc/24013181">The Union is in the most imminent danger of dissolution</a>.”</p>
<h2>Cherokee Nation challenges Georgia</h2>
<p>Worcester v. Georgia had its genesis in disputes between the Cherokee Nation and the state of Georgia.</p>
<p>Treaties between the <a href="https://avalon.law.yale.edu/18th_century/chr1791.asp">United States and the Cherokee Nation</a> solemnly guaranteed the the tribal nation independence on its reservation in Georgia. But Georgia wanted the <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">Cherokees gone, particularly after gold was discovered on their land</a>. </p>
<p>The United States tried to convince the Cherokees to move west, but most <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">refused to leave their homeland</a>.</p>
<p>In response, Georgia passed laws asserting its control over the reservation, <a href="https://supreme.justia.com/cases/federal/us/31/515/#tab-opinion-1936718">prohibiting the Cherokee government from meeting and posting guards over the gold mines</a>. President Andrew Jackson did nothing to stop this violation of U.S.-Cherokee treaties. Instead, at the request of the Georgia governor, <a href="https://newrepublic.com/article/63490/their-own-good">he removed federal troops from the reservation</a>.</p>
<p>The Cherokees mounted <a href="https://www.fjc.gov/history/timeline/cherokee-nation-v.-georgia">a legal challenge</a>, and tried to take their case to the Supreme Court. Their lawyer, William Wirt, and the justices worried that President Jackson would not enforce a decision in favor of the Cherokees. </p>
<p>But, <a href="https://books.google.com/books?id=phmyynDXxG0C&pg=PA292&lpg=PA292&dq=william+wirt+%22In+a+land+of+laws,+the+presumption+is+that+the+decision+of+courts+will+be+respected%22&source=bl&ots=N9wo-sb3vW&sig=ACfU3U1gc7wYKM_VL76n5CvNUbW6cjVwWw&hl=en&sa=X&ved=2ahUKEwjg9pGkyrnjAhVUUs0KHSY5DMMQ6AEwAHoECAIQAQ#v=onepage&q=william%20wirt%20%22In%20a%20land%20of%20laws%2C%20the%20presumption%20is%20that%20the%20decision%20of%20courts%20will%20be%20respected%22&f=false">Wirt told the court</a>, “What is the value of that government in which the decrees of its courts can be defied and mocked at with impunity … It is no government at all.” </p>
<p><a href="https://www.oyez.org/justices/john_marshall">Chief Justice John Marshall</a>, however, ducked the issue, holding that the court <a href="https://supreme.justia.com/cases/federal/us/30/1/">lacked jurisdiction over the case</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=934&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=934&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=934&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice John Marshall.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/John_Marshall#/media/File:John_Marshall_by_Henry_Inman,_1832.jpg">Henry Inman/Virginia Memory</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Georgia wasn’t done attacking the sovereignty of the Cherokees. In 1830, the state demanded that non-Indians take a loyalty oath to Georgia before going onto the Cherokee Reservation. Missionaries Samuel Worcester and Elizur Butler – both pro-Cherokee and anti-slavery – <a href="https://dlg.usg.edu/record/dlg_zlna_ch045">refused</a> <a href="https://www.docsteach.org/documents/document/worcester-v-georgia-indictment">to sign</a>. </p>
<p>The law made an exception for federal employees, and Worcester had served as federal postmaster, but Georgia persuaded the Jackson administration to <a href="https://www.jstor.org/stable/pdf/2205966.pdf?refreqid=excelsior%3Ab6a6b2170502f6c8fc9d56a202d1edb4">dismiss Worcester so the exception would not apply</a>. </p>
<p>The state sentenced the missionaries to four years of hard labor. Because the case pitted Georgia against Worcester, a citizen of Vermont, the Supreme Court could hear the case directly, rather than on appeal from the state courts. The court could <a href="https://newrepublic.com/article/63490/their-own-good">finally rule on Georgia’s authority over Cherokee land</a>.</p>
<h2>The ‘supremacy of the laws’</h2>
<p>The case was argued in <a href="https://www.britannica.com/event/United-States-presidential-election-of-1832">1832, an election year</a>, and Jackson’s opponents campaigned on his disregard for the courts.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Andrew Jackson.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Andrew_Jackson#/media/File:Andrew_Jackson_Portrait.jpg">Alexander Hay Ritchie/United States Library of Congress</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Speeches at the National Republican Convention, where they nominated the candidate <a href="https://www.britannica.com/event/United-States-presidential-election-of-1832">Henry Clay to challenge Jackson</a>, condemned Georgia’s “inhuman and unconstitutional outrages” against the missionaries and praised Jackson’s opponent Clay as a man who would “<a href="https://www.jstor.org/stable/1227621?seq=1#metadata_info_tab_contents">assert the supremacy of the laws</a>.” </p>
<p>For Chief Justice John Marshall, approaching the end of his career, the case and the election might decide whether his <a href="https://books.google.com/books?id=zCW3592c7CgC&printsec=frontcover&dq=kent+newmyer+marshall+heroic+age&hl=en&sa=X&ved=0ahUKEwj9uu3D0bnjAhVQGs0KHdkEBdwQ6AEIKjAA#v=onepage&q=worcester&f=false">legacy in building a strong and independent Supreme Court would survive him</a>. </p>
<p>Georgia, meanwhile, signaled its disdain for the court by refusing to even <a href="https://newrepublic.com/article/63490/their-own-good">appear for oral argument in Worcester</a>. </p>
<p>The court’s <a href="https://www.oyez.org/cases/1789-1850/31us515">5-1 opinion</a> resoundingly vindicated the Cherokees. </p>
<p>Federal treaties, the chief justice wrote, “solemnly pledge the faith of the United States” to protect Cherokee self-government; the Constitution made those treaties “the supreme law of the land.” </p>
<p>Georgia’s attempt to govern the reservation, therefore, was “repugnant to the constitution, laws, and treaties of the United States.” </p>
<p>But Georgia did not care, and Jackson would not force it to release the missionaries. </p>
<p>When the Georgia Guard jailed Cherokees for celebrating the decision, Jackson wrote his brigadier general that the “decision of the supreme court has fell still born.” Newspapers across the country reported that <a href="https://www.jstor.org/stable/2205966?seq=1#metadata_info_tab_contents">Jackson refused to enforce the decision</a>. That July, in vetoing another bill, Jackson declared that the <a href="https://avalon.law.yale.edu/19th_century/ajveto01.asp">court had no power over the president</a>.</p>
<p>The chief justice wrote despondently, “I yield slowly and reluctantly to the conviction that <a href="https://newrepublic.com/article/63490/their-own-good">our Constitution cannot last</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=720&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=720&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=720&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=905&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=905&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=905&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Cherokee Chief John Ross.</span>
<span class="attribution"><a class="source" href="https://cdn.loc.gov/service/pnp/pga/07500/07513v.jpg">Library of Congress</a></span>
</figcaption>
</figure>
<h2>Dangerous repercussions</h2>
<p>Perhaps Trump was channeling Jackson, his favorite president, when he tweeted that <a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf">there would be a citizenship question on the census a week after the court ruled against his administration’s attempt to add one</a>. Certainly the assertion raised – as Trump has throughout his presidency – a threat to <a href="https://www.msn.com/en-us/news/politics/trump-says-he-is-thinking-of-executive-order-to-revive-census-citizenship-question/ar-AADUfJy">the constitutional balance of powers</a> </p>
<p>But Jackson quickly realized that failing to enforce federal law in Worcester had dangerous repercussions.</p>
<p>In December 1832, shortly after Jackson’s reelection, South Carolina passed the <a href="https://avalon.law.yale.edu/19th_century/ordnull.asp">Nullification Ordinance</a>, declaring federal tariffs illegal in the state. </p>
<p><a href="https://avalon.law.yale.edu/19th_century/ajack001.asp">Jackson</a> <a href="https://www.loc.gov/rr/program/bib/ourdocs/nullification.html">condemned the state</a> and supported a <a href="https://www.loc.gov/law/help/statutes-at-large/22nd-congress/session-2/c22s2ch57.pdf">“Force Bill”</a> that, for the first time, gave federal marshals clear power to enforce U.S. laws. Any doubt that federal officials could not force Georgia to release the missionaries was gone.</p>
<p>Rather than force a public confrontation, Jackson’s allies went to Georgia Gov. Lumpkin and persuaded him to pardon the missionaries still languishing in jail. </p>
<p>The <a href="https://newrepublic.com/article/63490/their-own-good">constitutional crisis was averted</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=573&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=573&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=573&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=720&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=720&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=720&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A historical marker in Georgia for the Cherokee Trail of Tears.</span>
<span class="attribution"><span class="source">Author supplied</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Removal in a different way</h2>
<p>All did not end well for the Cherokees. </p>
<p>In 1835, while Cherokee Principal Chief John Ross was in Washington seeking protection from the U.S., Jackson’s agents got individual Cherokees to sign <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">a treaty agreeing to move to a new reservation west of the Mississippi</a>. </p>
<p>On the strength of the false treaty, the U.S. rounded up the Cherokee people and forced them west. The <a href="https://www.britannica.com/event/Trail-of-Tears">Trail of Tears</a> – a forced march on which one in four Cherokees died – is a dark legacy of Worcester.</p>
<h2>Independence affirmed</h2>
<p>But today, Worcester v. Georgia also stands as a monument to both tribal sovereignty and judicial independence. At the height of the backlash against Brown v. Board of Education, Justice Hugo Black called Worcester one of Justice Marshall’s “most courageous and eloquent opinions,” which, “despite bitter criticism and the defiance of Georgia … <a href="https://supreme.justia.com/cases/federal/us/358/217/">came to be accepted as law.”</a></p>
<p>As Chief Justice John Roberts <a href="https://theconversation.com/roberts-rules-the-2-most-important-supreme-court-decisions-this-year-were-about-fair-elections-and-the-chief-justice-119708">reluctantly joins the progressive minority</a> on the court to reject political power grabs, he maintains Chief Justice Marshall’s legacy of judicial independence articulated in Worcester.</p>
<p>And as President Trump agrees reluctantly to respect the court – at least in the case of the census – he follows, in part, that long-ago legal victory of the Cherokee Nation. </p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/120394/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bethany Berger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Trump hinted that he would defy a Supreme Court ruling recently, though he later yielded to its authority. Andrew Jackson – Trump’s hero – likewise challenged the rule of law in the 1830s.Bethany Berger, Wallace Stevens Professor of Law, University of ConnecticutLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1170842019-05-27T20:52:30Z2019-05-27T20:52:30ZOntario government seeking to insulate itself from lawsuits<figure><img src="https://images.theconversation.com/files/276244/original/file-20190523-187176-lqh8wa.jpg?ixlib=rb-1.1.0&rect=387%2C423%2C3367%2C2156&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ontario budget provisions aiming to limit Crown liability would also apply retroactively, thereby extinguishing existing lawsuits, including a class action by juvenile inmates who were placed in solitary confinement.</span> <span class="attribution"><span class="source">Ye Jinghan/Unsplash</span></span></figcaption></figure><p>Buried within the Ontario government’s <a href="https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-100">April budget</a> is a new <em>Crown Liability and Proceedings Act</em> that threatens to severely restrict our ability to sue the provincial government. </p>
<p>It will roll back Crown liability by more than 70 years. </p>
<p>Not only that, but changes will be applied retroactively as to extinguish existing lawsuits, like a <a href="https://www.cbc.ca/news/canada/toronto/class-action-certification-youth-solitary-confinement-ontario-government-1.4976256">class action by juvenile inmates who were placed in solitary confinement</a>. In some cases, plaintiffs and their lawyers will have already invested years in litigation.</p>
<h2>Historical context</h2>
<p>The historical common law rule that “the King can do no wrong” meant that the government was immune from civil liability. Beginning with Great Britain’s <em><a href="https://www.legislation.gov.uk/ukpga/Geo6/10-11/44/contents">Crown Proceedings Act</a></em> in 1947, various Commonwealth jurisdictions introduced legislation that permitted governments to be sued in the same way as private citizens. The government was no longer “above the law.”</p>
<p>The growth of the administrative state in the second half of the 20th century meant that government activity could harm citizens in new ways. And with their deep pockets, governments became an increasingly attractive target of lawsuits. In Ontario, this included <a href="https://www.canlii.org/en/on/onca/doc/2009/2009onca378/2009onca378.html?autocompleteStr=williams%20v%20canada&autocompletePos=2">class action suits for their mishandling of the SARS crisis</a>, as well as <a href="https://www.canlii.org/en/on/onca/doc/2008/2008onca446/2008onca446.html?resultIndex=1">claims against licensing officials</a> and <a href="https://www.canlii.org/en/on/onca/doc/2009/2009onca594/2009onca594.html?autocompleteStr=heasli&autocompletePos=3">ambulance authorities</a>.</p>
<p>But not every government act could be subject to a lawsuit. Over time, the courts have extended immunity to government officials for lawsuits based on their <a href="https://www.canlii.org/en/ca/scc/doc/1970/1970canlii1/1970canlii1.html?autocompleteStr=welbridge&autocompletePos=1">legislative actions</a>, <a href="https://www.canlii.org/en/on/onca/doc/1997/1997canlii2339/1997canlii2339.html?autocompleteStr=al%27s%20ste&autocompletePos=1">quasi-judicial decisions</a> and <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7957/index.do?q=r+v+imperial+tobacco">matters of policy</a>. This immunity reflects the separation of powers between courts, the legislature and the executive, and prevents the courts from second-guessing the decisions of elected officials.</p>
<p>The Ontario government <a href="https://www.cbc.ca/news/canada/toronto/proceedings-against-the-crown-act-repeal-replace-pcs-1.5097205">has claimed</a> that its new legislation merely codifies these common law rules. In fact, it goes much further to restrict Crown liability, and will also impose substantial procedural hurdles for potential plaintiffs.</p>
<h2>Proposed restrictions</h2>
<p>The proposed new act restricts Crown liability in three main ways.</p>
<p>First, it prohibits lawsuits based on government policy decisions. Although this is based on an <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7957/index.do?q=r+v+imperial+tobacco">existing common law principle</a>, the new act extends policy immunity by defining “policy” in a very broad way. </p>
<p>For example, it includes not just the creation or funding of government programs, but also the way that those programs are carried out. Under the common law, the <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/550/index.do">implementation of programs</a> is subject to potential tort liability. In other words, once the government decides to do something, it must use reasonable care not to harm people in the process.</p>
<p>The proposed act therefore extends well beyond the common law.</p>
<p>Second, the act prohibits lawsuits based on “regulatory” acts or omissions that are made in good faith. This means that, no matter how incompetent government officials are, they cannot be sued. For example, if an official negligently inspected a licensed establishment, resulting in licence restrictions that caused a loss of revenue, the establishment would have no civil recourse. </p>
<p>Such regulatory actions can only be the subject of lawsuits if the government official acted in bad faith. </p>
<p>But in lawsuits involving bad faith, plaintiffs must now get permission from a court before they can sue, and show that their claim has a reasonable possibility of success. During this process, the Crown can examine the plaintiff, but need not produce any documents or witnesses itself. </p>
<p>This puts plaintiffs in a tough position. Bad faith is essentially a state of mind, so it’s typically difficult to prove without at least some evidence from the defendant. For instance, it may require disclosure of internal communications showing that an official was acting for an improper purpose or with bias against the plaintiff. </p>
<p>Without disclosure of these documents or the ability to question government officers, plaintiffs will only be able to speculate that bad faith was involved. This may not be sufficient to get a court’s permission to proceed.</p>
<h2>Avoiding scrutiny</h2>
<p>Although it’s not uncommon for governments to include legislative reforms within budget bills, it leaves the impression that the government is trying to hide the change from the scrutiny it might otherwise attract. </p>
<p>The Ontario Attorney General’s office described the legislation as “housekeeping,” but comments by Premier Doug Ford suggest that it was at least partly motivated by a desire to eliminate what he described as <a href="https://www.theglobeandmail.com/canada/article-lawyers-sound-alarm-over-new-law-that-could-limit-lawsuits-against/">“nonsense” lawsuits</a>. </p>
<p>Lawsuits are an important measure by which citizens can hold the government accountable for its negligence or abuse of power. They can be used to bring systemic injustice to the public eye, or just to make sure that public decision-makers act fairly.</p>
<p>For instance, one federal inmate <a href="https://www.canlii.org/en/ca/fct/doc/2008/2008fc1158/2008fc1158.html?resultIndex=1">successfully sued</a> for abuse of office because prison authorities refused to provide him with shoes that fit his extra wide feet. He only obtained $6,000, but the lawsuit was necessary to make authorities comply. </p>
<p>A government whose election promises include to <a href="https://www.ontariopc.ca/plan_for_the_people">“restore accountability and trust”</a> should not be seeking to avoid liability when its officers cause harm.</p><img src="https://counter.theconversation.com/content/117084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erika Chamberlain has received funding from SSHRC to support research into government liability for abuse of office. </span></em></p>Proposed new legislation in Ontario will make it much harder to sue the provincial government for its negligence or bad faith.Erika Chamberlain, Professor and Dean, Faculty of Law, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1075632018-12-03T22:09:10Z2018-12-03T22:09:10Z‘We’re WHAT?’ Why marriage default laws are misguided<figure><img src="https://images.theconversation.com/files/247587/original/file-20181127-76743-18zdiny.jpg?ixlib=rb-1.1.0&rect=1199%2C26%2C1742%2C1432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Wait, we're WHAT?' Why laws that consider live-in couples to be married may be well-intentioned, but erode free choice and put pressure on relationships.</span> <span class="attribution"><span class="source">Rawpixel/Unsplash</span></span></figcaption></figure><p>Imagine that you move in with your intimate partner. Three years later, you get a letter from the province: “Congratulations! From now on, we view you as a married couple.”</p>
<p>While you might not actually find such a letter in your mailbox, this is essentially the system <a href="https://www.alberta.ca/family-law-changes.aspx">recently proposed by the province of Alberta</a> under its new <a href="https://www.cbc.ca/news/canada/edmonton/alberta-common-law-legislation-couples-property-division-1.4915419">Family Property Act</a>.</p>
<p>Alberta isn’t alone. <a href="https://www.cbc.ca/news/canada/british-columbia/common-law-couples-as-good-as-married-in-b-c-1.1413551">British Columbia</a>, <a href="http://www.commonlawrelationships.ca/saskatchewan/">Saskatchewan</a> and <a href="https://www.gov.mb.ca/justice/crown/family/law/commonlaw.html">Manitoba </a> already have such systems in place (for B.C. and Saskatchewan, couples are considered married after two years).</p>
<p>Over the past few months, we’ve interviewed 15 unmarried couples in B.C., which has been considering live-in couples “spouses” since 2013. We found that the law, while well-intentioned, infringes too far on couples’ autonomy in shaping their relationships.</p>
<p>It makes many unmarried couples in the province married by default, does not necessarily reflect couples’ wishes and communicates a norm of commitment to couples who live outside marriage and might not be ready to commit or have good reasons to protect their assets from their partners.</p>
<h2>Property division</h2>
<p>The amendment to an existing law being considered by Alberta has compelling justifications: Making the law more predictable and thus more accessible.</p>
<p><a href="https://www.alri.ualberta.ca/images/stories/docs/FR112.pdf">Under current law</a>, unmarried couples do not have the same rights as married couples regarding division of property when a relationship ends. Furthermore, the current law makes it difficult to predict the outcome of litigation in the event of a breakup. This encourages expensive legal help, which some partners cannot afford.</p>
<p>To fix this, the suggested reform proposes that after three years of living together, unless the parties have executed an agreement, the same rules of property division that apply to married couples would apply to unmarried couples.</p>
<p>This reform tells partners: You should decide in advance — and enter into a contract — about division of assets in case of breakup.</p>
<p>If, in three years, you haven’t done so, the province will decide for you by extending the rules of equal division of assets to you. It therefore serves to nudge couples to deliberate about their mutual obligations in advance.</p>
<h2>Law is still uncertain</h2>
<p>Sounds fair, right? However, experience in B.C. reveals a few problems with the system.</p>
<p>A study by Robert Leckey, dean of the Faculty of Law at McGill University, compared court cases before and after the reforms in B.C. and Saskatchewan. It found that couples still litigate obligations under the new laws, seeking judgment on whether their relationship falls under the definition of living in a “marriage-like” situation, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2886520">or they dispute how long they’ve been in such a relationship</a>.</p>
<p>Leckey’s study implies that uncertainties remain about cohabitation laws.</p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3078793">In another study</a>, Leckey argues that post-reform cases show that when judges evaluate whether couples are in “marriage-like” relationships, those judges tend to use traditional ideas of “good marriages” characterized by “gendered and class-specific notions.”</p>
<p>Our concern is how the law operates both long before a breakup — when couples decide whether to move in together — and also at the two- or three-year threshold, when the law kicks in.</p>
<p>Our study finds that couples’ degree of familiarity with and understanding of the law is abysmal. About two-thirds of the 15 couples falsely thought they had to “apply” to be considered spouses. They did not understand that they are automatically covered by the law; in other words, they must opt out to avoid being affected by the legislation.</p>
<p>In addition, a third of the interviewees mixed up the federal and the provincial time requirements for recognition.</p>
<p>Understanding the law is also difficult. The most educated and sophisticated couples we interviewed were unable to get it right, even after making great efforts to do so.</p>
<h2>Couples hope for the best</h2>
<p>To clarify, most couples in our study had good reasons to know about the law because they had some properties together or other mutual assets. This is not a surprise: The couples we interviewed, like married couples, were often overly optimistic about the chances of staying together, or believed any breakup would be amicable.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/247580/original/file-20181127-76758-2sizhe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">No couple likes to ponder their breakup, and likes to believe if they did decide to part ways, it would be amicable.</span>
<span class="attribution"><span class="source">FreestocksOrg/Unsplash</span></span>
</figcaption>
</figure>
<p>In fact, only one couple had actually executed a contract, but even this one did not follow the required formalities (witness and signature), so it is unclear whether the contract will be enforceable.</p>
<p>Default rules —such as those concerning equal division of property —typically serve to maintain the status quo. <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1746&context=articles">Studies examining behaviours of parties to other types of contracts</a> demonstrate that they don’t change the default rules, even if they don’t desire them, for many reasons.</p>
<p>Opting out from default rules concerning property division is procedurally onerous and, in practice, requires a lawyer’s advice, which many cannot afford. Furthermore, the defaults may reflect the wishes of many couples, but they also suggest a norm of traditional marriage.</p>
<p>Accordingly, couples after two years (in B.C.) interpreted the law as advising they should adopt traditional, marital-like behaviour. A few couples in our study affirmed that; they believed that by the two-year threshold, their level of commitment ought to have evolved. It was a sort of deadline marking the end of a period of deliberation about whether they wanted to stay together as a couple.</p>
<p>We think that reforming laws relating to unmarried couples in Alberta, and elsewhere, is long overdue. But we are concerned that the Alberta bill, like its predecessors, is a strong affront to couples’ autonomy and erodes the freedom to choose to live in non-marital situations.</p>
<p>It’s not a gentle nudge, but more like a push.</p>
<p>A more innovative approach would present ways in which couples can <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2135562">effortlessly indicate their preferences using an online form</a>, or at least would better inform couples about the law so they can choose for themselves if they want to “marry” —or to avoid the consequences of “marriage.”</p><img src="https://counter.theconversation.com/content/107563/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erez Aloni receives funding from the UBC Hampton New Faculty Award and the Law Foundation of BC. </span></em></p><p class="fine-print"><em><span>Adam Vanzella-Yang does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Reforming laws relating to unmarried couples is long overdue. But it can also represent an affront couples’ autonomy and erodes the freedom to choose to live in non-marital situations.Erez Aloni, Assistant Professor, Peter A. Allard School of Law, University of British ColumbiaAdam Vanzella-Yang, PhD Student, University of British ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1034662018-09-26T11:03:53Z2018-09-26T11:03:53ZEight cases from across history which still shape the law today<figure><img src="https://images.theconversation.com/files/238095/original/file-20180926-48662-2pomzp.jpg?ixlib=rb-1.1.0&rect=436%2C255%2C1331%2C765&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/Royal_Courts_of_Justice#/media/File:LONDON_ILLUSTR(1873)_p2.087_THE_NEW_LAW_COURTS.jpg">British Library/Wikimedia Commons.</a></span></figcaption></figure><p>New students are streaming into law schools across the country. But to become the next generation of lawyers, judges and activists, they’ll first need to read through a mountain of case law. In case law, judges define what acts of parliament actually mean, explain the common law and resolve disputes between citizens, organisations and sometimes state institutions. </p>
<p>Newspapers occasionally publish <a href="https://www.theguardian.com/law/2013/dec/04/law-cases-essential-student">a list</a> of the most important cases for students to be aware of. But it’s not just students who could benefit from learning about the law – after all, cases decided hundreds of years ago can set the precedent for decisions that the courts in England and Wales make today. </p>
<p>Here’s my pick of some of the most important cases throughout history: ones that can teach us all something about how the law mirrors social and political attitudes, while revealing the principles and patterns that make up the country’s version of justice.</p>
<hr>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1014&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1014&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1014&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1274&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1274&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1274&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">King James I: could you not?</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_King_James_I_%26_VI_(1618-1620).jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<h2>1. The Case of Proclamations, 1610</h2>
<p>Over 400 years ago, the chief justice, Sir Edward Coke, <a href="https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html">ruled that</a> King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way. </p>
<p>By the end of that century, the <a href="http://www.bbc.co.uk/history/british/civil_war_revolution/glorious_revolution_01.shtml">Glorious Revolution</a> laid the foundation for today’s constitutional monarchy, whereby whoever is king or queen respects the law-making authority of the elected parliament. </p>
<hr>
<h2>2. Entick v Carrington, 1765</h2>
<p>Author and schoolmaster John Entick was suspected of writing a libellous pamphlet against the government. In response, the secretary of state sent Nathan Carrington, along with a group of other king’s men, to search Entick’s house for evidence. Entick then sued the men for trespass. </p>
<p>The court <a href="https://lawcaseuk.com/constitutional-and-administrative-law/">decided that</a> the secretary of state did not have the legal authority to issue a search warrant, and therefore Carrington had trespassed. This case reflects the principle that “no man is above the law” – not even the secretary of state. To this day, law enforcement agencies may only do what the law allows.</p>
<hr>
<h2>3. R v Dudley and Stephens, 1884</h2>
<p>In this case, the survivors of a shipwreck who killed and ate the youngest and weakest crew member were <a href="https://swarb.co.uk/regina-v-dudley-and-stephens-qbd-9-dec-1884/">prosecuted for murder</a>. Their defence was based on “necessity” – that they needed to eat the boy, as they were unlikely to survive and the boy probably would have died anyway. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=495&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=495&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=495&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=623&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=623&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=623&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tom Dudley’s own sketch of their boat, the Mignonette.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens#/media/File:Mignonette.jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<p>It may have been a <a href="https://www.washingtonpost.com/archive/lifestyle/1984/08/03/the-law-of-the-sea-38/fd67691f-9c35-48d4-95e3-3db773142d6d/?utm_term=.75e284c01f80">“custom of the sea”</a> that cannibalism was allowed under such circumstances, but the defendants were found guilty on the basis that all life is equal – the law expected them to die, rather than kill another. </p>
<p>But the public was sympathetic to the defendants, and their sentences were later commuted from death to six months imprisonment. The boy was named Richard Parker, as is the tiger in the Man Booker prize-winning novel <a href="https://www.goodreads.com/book/show/4214.Life_of_Pi">Life of Pi</a>.</p>
<hr>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=921&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=921&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=921&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1157&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1157&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1157&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A newspaper advertisement for the carbolic smoke ball.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/7/7e/Carbolic_smoke_ball_co.jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<h2>4. Carlill v Carbolic Smoke Ball Co, 1893</h2>
<p>Mrs Carlill <a href="http://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html">sued the manufacturer</a> of the carbolic smoke ball – a device for preventing colds and flu – which had promised a reward of £100 for any one catching flu following the use of its product but then refused to pay out. </p>
<p>The court decided that this promise, together with Mrs Carlill’s use of the product as directed, amounted to a legally binding contract and she was entitled to the reward. The case explores many of the principles that must be present in modern day contracts, such as offer and acceptance, before we can make legally enforceable agreements between each other. Yet this most famous of cases may never have been brought at all, had Mrs Carlill not been married to a solicitor.</p>
<hr>
<h2>5. Donoghue and Stevenson, 1932</h2>
<p>In a case originating in Scotland, Mrs Donoghue was given a bottle of ginger beer which <a href="http://news.bbc.co.uk/1/hi/business/8367223.stm">allegedly contained</a> the decomposed remains of a snail. She claimed to have suffered shock and gastroenteritis as a result. But as she had not bought the drink herself, she had no contract on which to sue. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Can I get a refund?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-snail-climbing-on-glass-bottle-632175992?src=kxGTeeD-G1Ff5e6u_kd3rg-1-53">Shutterstock.</a></span>
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<p>Nevertheless, the court <a href="http://www.bailii.org/uk/cases/UKHL/1932/100.html">extended the law</a> of negligence to require reasonable care towards those likely to be affected by a person’s or company’s actions. Was there really a snail? We don’t know for sure, as Mr Stevenson died before the evidence could be heard. </p>
<hr>
<h2>6. Fagan v Metropolitan Police Commissioner, 1969</h2>
<p>To be guilty of a criminal offence, there often needs to be unlawful act accompanied by a guilty state of mind, such as a criminal intent. So, having accidentally driven his car onto a policeman’s foot, did Mr Fagan commit an assault when he decided not to remove it? </p>
<p>Mr Fagan suggested not because he had no criminal intent at the time the car first went on to the foot, but <a href="https://www.youtube.com/watch?v=nDv1hxtCbGQ">the court held</a> that deciding to leave the car there was a combination of act and intention, which meant he was <a href="https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html">guilty of the offence</a>.</p>
<hr>
<h2>7. R v R, 1991</h2>
<p>The law is constantly evolving to meet changing social attitudes. In this case, the House of Lords swept away the common law rule that a man could not be guilty of raping his wife. The previous rule was based on a 1736 pronouncement that:</p>
<blockquote>
<p>By their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract.</p>
</blockquote>
<p>The House of Lords <a href="http://www.bailii.org/uk/cases/UKHL/1991/14.html">ruled that</a> for modern times, marriage is a partnership of equals and any other suggestion was “quite unacceptable”.</p>
<hr>
<h2>8. The Belmarsh case, 2004</h2>
<p>The Human Rights Act empowered judges to review acts of parliament, to check if they are compatible with the European Convention on Human Rights. Using this power, the House of Lords <a href="http://news.bbc.co.uk/1/hi/uk/4100481.stm">ruled that</a> a statute which allowed terrorist suspects to be detained indefinitely without trial breached the suspects’ human rights. </p>
<p><a href="https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf">The case</a> shows how modern courts ask not just whether government action is authorised by law, but also whether it is compatible with our rights. Parliament amended the law as a result.</p>
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<img alt="" src="https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=601&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=601&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=601&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=756&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=756&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=756&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Gina Miller, outside court.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-november-3-2016-509938600?src=BKFLcwO5Rn_t4ozkoFUbAg-1-1">Jane Campbell/Shutterstock.</a></span>
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<p>In 2016, Gina Miller brought a case against the UK government, claiming that it couldn’t trigger Article 50 – and therefore Brexit – without an act of parliament. <a href="https://theconversation.com/government-loses-brexit-court-case-so-what-happens-now-71824">Ruling in Miller’s favour</a> in 2017, the Supreme Court drew on the 1610 case of proclamations. So there’s no doubt that even the oldest cases still have the power to shape society today.</p><img src="https://counter.theconversation.com/content/103466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Clapham is author of non-profit website lawcaseuk.com.</span></em></p>From cannibalism to carbolic smoke balls, these are some of the fascinating cases that have made the law of England and Wales what it is today.Nicholas Clapham, Senior Teaching Fellow, School of Law, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1031902018-09-14T10:35:15Z2018-09-14T10:35:15ZImmigrant detention in the US: 4 essential reads<p>More children are being held in immigrant detention centers in the U.S. than ever previously recorded, according to <a href="https://www.nytimes.com/2018/09/12/us/migrant-children-detention.html">The New York Times</a>.</p>
<p>The number of immigrant children in detention has risen to about 12,800, the Times reports, a significant increase from 2,400 in 2017. Here are 4 stories from our archive that will help readers understand some central issues around immigrant detention:</p>
<h2>1. Legal challenges</h2>
<p>Since President Donald Trump took office, there have been numerous legal challenges to his administration’s policies on immigration, including on immigrant and child detention. In July, <a href="https://www.washingtonpost.com/news/morning-mix/wp/2018/07/31/trump-administration-must-seek-consent-before-giving-drugs-to-migrant-children-judge-rules/?noredirect=on&utm_term=.62df9e8baa04">a federal court ruled</a> that detention centers could no longer give drugs to treat psychiatric symptoms to children without the consent of a parent or guardian. </p>
<p>Immigration scholar <a href="https://theconversation.com/profiles/kevin-johnson-322147">Kevin Johnson</a> writes about several cases in U.S. history that set legal precedents in disputes over detaining immigrants and protecting their rights. For example, a class action lawsuit filed by immigrants in detention in the 1980s argued that moving detainees away from major urban areas deprived them of a right to counsel. The court <a href="https://theconversation.com/history-shows-trump-will-face-legal-challenges-to-detaining-immigrants-72247">agreed and ruled in their favor</a>.</p>
<p>Johnson writes: “The long history of detention has an equally long history of legal challenges. These are likely to continue in the Trump administration, which has made detention a cornerstone of its immigration enforcement plan.”</p>
<h2>2. Standards for children and families</h2>
<p>One case in particular stands out as more relevant to today’s debate about detaining children and families. The Flores case was filed in 1985 and led to what’s known as the “Flores settlement.” This contract between the government and the plaintiffs set standards for holding children and families in detention, which courts continue to use today.</p>
<p>For example, the agreement says that the government must release immigrant children after 20 days of detention.</p>
<p>In a separate analysis, <a href="https://theconversation.com/profiles/kevin-johnson-322147">Johnson</a> <a href="https://theconversation.com/lawyers-defending-immigrant-children-in-detention-are-relying-on-a-court-case-from-the-80s-100918">explains the case</a> and why it has had such a lasting impact.</p>
<h2>3. Who’s to blame?</h2>
<p>Critics have blamed the Trump administration for the inhumane detention of immigrant children. However, public policy professor Susan M. Sterett argues that the contractors who provide the detention facilities <a href="https://theconversation.com/why-its-hard-to-hold-contractors-accountable-for-the-suffering-of-immigrant-children-99186">are also to blame</a> for suffering children.</p>
<p>Although government contracting is not new, the contracts themselves rarely garner attention from the public. There are many reasons why the government uses contracting services. In this case, it is likely because the contractors can act more quickly than the government to provide housing for detained children, Sterett writes.</p>
<p>“[The government] hands nonprofit groups, for-profit businesses and local governments US$1 billion a year or more to house nearly 12,000 children. This money is dispensed through government contracts that do not always gain much public attention,” Sterett writes. </p>
<h2>4. Echoes from the past</h2>
<p>This episode in U.S. history is not unique. In the 1990s, thousands of Haitians fleeing violence started the journey toward the U.S. to seek safety. Presidents George H.W. Bush and Bill Clinton responded by authorizing their capture and indefinite detention at a military base at Guantanamo Bay in Cuba.</p>
<p>Scholar <a href="https://theconversation.com/profiles/a-naomi-paik-501533">A. Naomi Paik</a> writes about <a href="https://theconversation.com/us-turned-away-thousands-of-haitian-asylum-seekers-and-detained-hundreds-more-in-the-90s-98611">conditions on the base</a>: “Under the stress of imprisonment with no end in sight, some refugees fell into despair. The most dire cases purposely hurt themselves or attempted suicide. Children also endured the camp conditions that nearly broke grown adults.”</p>
<p>As information emerges about conditions in today’s detention centers, the parallels to the past may be instructive.</p>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/103190/count.gif" alt="The Conversation" width="1" height="1" />
A record number of immigrant children are being detained in the US. Here’s what you need to know.Danielle Douez, Associate Editor, Politics + SocietyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1011372018-08-23T08:51:30Z2018-08-23T08:51:30ZWhy Indonesia should stop sending drug users to prison<figure><img src="https://images.theconversation.com/files/232012/original/file-20180815-2894-1m99n3u.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C998%2C663&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Indonesia, sending drug users to prison only creates more problems, from overcrowding to bigger exposures to drug abuse.
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>Indonesia is locking up more inmates than it can handle. Prison overcrowding has become one of the government’s top priorities under its <a href="https://news.detik.com/berita/d-3318263/ini-dia-paket-reformasi-hukum-tahap-i-presiden-joko-widodo">legal reform policy</a>. It has led to various problems, including <a href="https://theconversation.com/the-first-terrorist-act-in-indonesian-prison-the-triggers-and-how-to-prevent-them-96505">riots</a> and <a href="https://theconversation.com/holding-bears-in-bamboo-cages-the-irony-of-indonesian-corruptors-behind-bars-100540">bribery</a>. </p>
<p><a href="http://smslap.ditjenpas.go.id/public/grl/current/monthly/year/2018/month/6">As of June 2018</a>, the government had detained almost 250,000 inmates in prisons across the country. The prisons’ total capacity can accommodate only half of that figure. </p>
<p>The overcrowding problem is mostly due to Indonesia’s justice system, which can easily send criminals to prison even for minor cases. Under the system, drug users are sent to prisons instead of rehab centres. They are even categorised as serious criminal offenders together with graft convicts and convicted terrorists. <a href="http://smslap.ditjenpas.go.id/public/krl/current/monthly/year/2018/month/6">Recent data</a> show that drug users account for a third of those jailed for serious crimes. </p>
<p>Given the huge numbers in prison, the government needs to stop sending drug users to prison and revisit its punitive approach to them. </p>
<h2>Indonesia’s drugs policy</h2>
<p>As a starting point, we must understand that drug convicts are not necessarily drug dealers. When someone is a drug convict, he or she can be a drug user, or a drug dealer, or both in some cases. </p>
<p>However, Indonesian law does not acknowledge this differentiation and tends to treat all drug convicts as serious criminal offenders. Under the law, drug abuse is considered a serious crime and the offenders will get a severe punishment. This potentially includes the death penalty. </p>
<p>Article 127 of the Law on Drugs states that a judge can offer rehabilitation programs for drug users after trials. However, the regulation is not effectively implemented yet. Most legal officers believe that sending drug users to prisons is the common practice. Recent undisclosed research from the Indonesia Judicial Monitoring Society shows that of 21 cases involving drug users in Jakarta District Court in 2015, only six were sent to a rehab centre. </p>
<p>Inconsistencies in Indonesian law present another challenge. Even though there is an article that offers rehab, another article encourages jail time. </p>
<p>Article 112 states that a person who owns, keeps, controls and serves narcotics should receive a jail sentence. This defines drug users as serious criminals, as logically the person who uses drugs also owns and keeps the drugs. <a href="https://tirto.id/dilema-hukuman-rehabilitasi-narkoba-cvF8">Recent research</a> from the Institute for Criminal Justice Reform (ICJR) shows that legal officers tend to rely more on article 112 than article 127 in handling drug cases, as the former is easier to prove than the latter. </p>
<p>President Joko “Jokowi” Widodo’s <a href="https://www.aljazeera.com/indepth/opinion/2017/07/jokowi-war-drugs-harm-good-170725101917170.html">harsh approach</a> in dealing with drug cases has only worsened the problem. </p>
<p>In another effort, Indonesia introduced a <a href="https://www.republika.co.id/berita/nasional/hukum/15/05/23/norwnd-bnn-pecandu-narkoba-wajib-jalani-rehabilitasi">forced rehabilitation program</a> for drug users in 2015. It has promoted a more lenient approach to addressing drug use. However, in practice, the state often <a href="https://theconversation.com/forced-rehabilitation-of-drug-users-in-indonesia-not-a-solution-43184">forcibly detains suspected drug users</a>.</p>
<h2>Jail time is not effective for drug users</h2>
<p>Sending drug users to jail only make things worse for them due to <a href="https://www.voanews.com/a/drug-use-corruption-rampant-in-indonesian-prisons/1713589.html">rampant corrupt practices</a> inside prisons. Inmates can get everything they want for a price, including drugs. </p>
<p><a href="https://www.drugandalcoholdependence.com/article/S0376-8716(15)00038-1/fulltext">Yale University researcher Gabriel J. Culbert</a> revealed the rampant use of drugs in Jakarta’s prison. Based on his research in 2014, he found that 56% of inmates used drugs in prison. The respondents also claimed they still can get illegal drugs in prison. This means jail sentences are not effective in reducing drug use. </p>
<p>Inside jail, drug users are also exposed to wider drug communities. According to the <a href="https://www.cnnindonesia.com/nasional/20170713145408-12-227647/bnn-50-persen-peredaran-narkoba-dikendalikan-dari-penjara">National Anti-Narcotics Agency</a>, 50% of drug trafficking is controlled from inside prisons.</p>
<h2>The bad impact</h2>
<p>Sending drug users to prisons is not only ineffective but also creates many problems.</p>
<p>If the government decides to send every drug user to prison, this will only hurt the state’s budget as more inmates mean more funding is required.</p>
<p>The state’s budget for prison was set at <a href="http://smslap.ditjenpas.go.id/public/ung/current/monthly/year/2017/month/thn">Rp 1.2 trillion</a> (US$83 million) in 2017, almost double the allocation in 2012. </p>
<p>If the government continues to lock up drug users in jail while the budget is limited, it will lead to two bad consequences. The first is the poor quality of the prison service. The second is rampant corruption involving both guards and prisoners. Underpaid guards will take bribes from prisoners whose needs are not being met.</p>
<p>Another problem arising from putting drug users in jail is overcrowding. Having more inmates than each prison can handle leaves them prone to <a href="https://theconversation.com/the-first-terrorist-act-in-indonesian-prison-the-triggers-and-how-to-prevent-them-96505">riots</a> and <a href="https://theconversation.com/holding-bears-in-bamboo-cages-the-irony-of-indonesian-corruptors-behind-bars-100540">corruption</a>. </p>
<p>Corruption is rampant in overcrowded prisons as the government’s limited budget means it fails to provide services that meet the basic needs of inmates.</p>
<h2>Lessons from other countries</h2>
<p>Instead of sending drug users to prison, Indonesia should learn from how other countries handle drug cases. </p>
<p>The Netherlands has introduced a policy that doesn’t criminalise the use of marijuana. This policy allows the distribution of small amounts of cannabis in Dutch “coffee shops”. These coffee shops successfully <a href="https://www.opensocietyfoundations.org/reports/coffee-shops-and-compromise-separated-illicit-drug-markets-netherlands">avoid exposure to hard drug markets</a>. Research shows that even though a quarter of Dutch people have consumed marijuana, <a href="http://icjr.or.id/hak-asasi-manusia-dan-kebijakan-narkotika/">the Netherlands has the lowest number of narcotics addicts in Europe</a>.</p>
<p>Portugal also provides an interesting lesson. In 2000, Portugal introduced a policy that does not criminalise drug use, which broke a global paradigm in handling drugs problems. Instead of a repressive approach, Portugal has chosen a new humane approach that focuses more on minimising harm from drug use. </p>
<p>In doing so, Portugal has stopped criminalising, marginalising and stigmatising drug users. Following the recommendation of <a href="https://www.globalcommissionondrugs.org/reports/">the Global Commission on Drug Policy</a>, Portugal has offered health and medical treatments to drug users who need them. Five years after decriminalising drug use, Portugal had decreased its overdose cases from 400 to 290 a year. </p>
<p>Knowing that Indonesia’s punitive approach to drug users is doing more harm than good, it is probably a good time for the government to evaluate its legal policy on drug issues. It is important to keep in mind that the government should emphasise drug policy to fight against drug addiction and illegal distribution and not drug users.</p><img src="https://counter.theconversation.com/content/101137/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dio Ashar Wicaksana receives funding from USAID and the Australian Government (DFAT) as a researcher for MaPPI-FHUI. </span></em></p>The government needs to revisit its punitive approach to drug users and stop sending them to prison to avoid overcrowding.Dio Ashar Wicaksana, Executive Director of Indonesia Judicial Monitoring Society (MaPPI), Faculty of Law University of Indonesia, Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1009382018-08-03T10:41:13Z2018-08-03T10:41:13Z#MeToo movement finds an unlikely champion in Wall Street with the new ‘Weinstein clause’<p>If you were worried that the #MeToo movement might fade away, fear not. It has been carved into one of the most immovable objects in human history. </p>
<p>Legal boilerplate.</p>
<p>And not just any boilerplate. But the language in giant merger agreements, used when one company is buying out another company.</p>
<p>Basically, corporate lawyers <a href="https://www.bloomberg.com/news/articles/2018-08-01/-weinstein-clause-creeps-into-deals-as-wary-buyers-seek-cover">have been adding</a> a sentence that forces companies to disclose allegations of sexual harassment. On Wall Street, it has come to be known as the “Weinstein clause.”</p>
<p>That’s new. In my years as an employment lawyer, I worked on more than 50 corporate acquisitions. The work somehow managed to be both boring and stressful, as I rapidly sifted through masses of personnel documents to figure out what needed to be disclosed.</p>
<p>Although it was common to disclose ongoing lawsuits or threats of litigation, “allegations” or even internal complaints of harassment were not on anyone’s radar.</p>
<p>The arrival of the Weinstein clause signals how important #MeToo has become – not just as a social movement but as a business risk.</p>
<h2>When employment law was small potatoes</h2>
<p>The “Weinstein clause” appears in a section of the agreement called the “representations and warranties,” where the seller attests that it has complied with certain laws or denies certain liabilities. </p>
<p>For example, the agreement might say that there are no ongoing lawsuits against the company. If that statement is untrue because the company is litigating a discrimination case in federal court, then the company needs to list the name of the case in a huge side document called a “disclosure schedule.” </p>
<p>Previously, employment-related stuff, like harassment or discrimination, was considered small potatoes in a corporate acquisition. These cases are usually not worth more than US$100,000 or $200,000, which is practically a rounding error when you’re talking about a merger worth hundreds of millions or even billions of dollars. </p>
<p>So in large mergers, the representations and warranties tend to only call for the disclosure of big ticket liabilities. A disclosure schedule in those deals is like the All-Star Team of massive liabilities. It’s where “We don’t own any of our intellectual property” goes to hang out with “We bribed foreign government officials” and “Our only liquid assets are fidget spinners.”</p>
<p>As an employment lawyer on a large deal, I was essentially a benchwarmer. I was pumped if I got a lawsuit or two added to the disclosure schedule – that was my two minutes of playing time. </p>
<p>A mere harassment allegation? Please. That wouldn’t even make it into the memo I prepared that no one would read. </p>
<h2>The advent of the Weinstein clause</h2>
<p>But <a href="https://www.sec.gov/Archives/edgar/data/766829/000119312518131668/d555474ds4.htm">sometime around March</a> of this year, lawyers started adding so-called “<a href="https://www.bloomberg.com/news/articles/2018-08-01/-weinstein-clause-creeps-into-deals-as-wary-buyers-seek-cover">Weinstein clauses</a>” to their merger agreements. </p>
<p>For example, in <a href="https://www.businesswire.com/news/home/20180619005755/en/Veritas-Capital-backed-Verscend-Acquire-Cotiviti-4.9-Billion">a $4.9 billion deal</a> in June to acquire health care analytics company, Cotiviti, the <a href="https://www.sec.gov/Archives/edgar/data/1657197/000104746918004673/a2236085zex-2_1.htm">merger agreement</a> called for the disclosure of any “allegations of sexual harassment” against officers, directors or employees who supervise at least eight other employees if it would result in a “material adverse event.” </p>
<p>The term “material adverse event” means “so bad that it would noticeably affect our profits, keeping in mind that we’re worth 4.9 billion dollars.”</p>
<p>The inclusion of this language is remarkable because it assumes that an allegation of harassment might actually turn out to be more than a blip on the radar of a big company. </p>
<p>That would have been unthinkable a year ago. And yet now is firmly within the realm of the plausible after Harvey Weinstein’s $200 million entertainment company went <a href="https://www.nytimes.com/2018/05/01/business/media/weinstein-company-lantern-bankruptcy-deal.html">bankrupt</a> and shareholders of Wynn Resorts <a href="http://fortune.com/2018/01/29/steve-wynn-stock-net-worth-sexual-misconduct/">lost $3.5 billion in value</a> in the wake of harassment scandals.</p>
<p>Other mergers compel similar disclosures, regardless of whether the allegations are “material.” In some cases, they ask about allegations against high-level employees going back <a href="https://www.sec.gov/Archives/edgar/data/40987/000004098718000010/a21mergeragreementfilingve.htm">five</a>, <a href="https://www.sec.gov/Archives/edgar/data/1635718/000119312518159250/d584019dex21.htm">eight</a> or <a href="https://www.sec.gov/Archives/edgar/data/1514991/000119312518230456/d586184dex21.htm">10</a> years. </p>
<p>That’s <a href="https://www.eeoc.gov/employees/timeliness.cfm">way past</a> the statute of limitations. In other words, we’re not talking about legal risks any more. This is about the seismic risk of a brand tainted by misconduct.</p>
<h2>A new normal for compliance</h2>
<p>The arrival of the Weinstein clause may seem inconsequential, but it signals recognition that harassment qualifies as a massive liability. And massive liabilities command attention and resources before a merger is even in the cards.</p>
<p>In a business environment where initial public offerings are <a href="https://qz.com/1192972/us-startups-are-shunning-ipos-thats-bad-news-for-americans/">few and far between</a>, a merger may be the best way for early investors to profit. Investors and venture capitalists will now care a lot more about how companies handle their harassment complaints, because it affects their ability to cash out. These players will then <a href="https://www.recode.net/2017/6/21/15844848/uber-ceo-travis-kalanick-resigned-board-pressure">put pressure</a> on startups and other fast-growing companies to clean up their acts.</p>
<p>That’s the best performance I’ve seen from boilerplate in a long time.</p><img src="https://counter.theconversation.com/content/100938/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New legal boilerplate in corporate merger agreements signals just how important #MeToo has become – not just as a social movement but as a business risk.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1002292018-07-19T10:41:06Z2018-07-19T10:41:06ZMGM is suing the victims of the worst mass shooting in US history. Here’s why<figure><img src="https://images.theconversation.com/files/228322/original/file-20180718-142423-18aacnq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The scene in Las Vegas several days after the worst mass shooting in U.S. history.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Gun-Background-Checks-Nevada/b9b5faef764a4af091cf21a4cee294b6/11/0">AP Photo/Gregory Bull</a></span></figcaption></figure><p>Last October, Stephen Paddock unleashed a barrage of automatic gunfire from a 32nd-floor hotel room overlooking a large crowd of concertgoers attending a country music festival in Las Vegas. With a body count of 59 dead and another 500 wounded, it was the <a href="https://www.nytimes.com/2017/10/02/us/las-vegas-shooting.html">worst mass shooting</a> in U.S. history. </p>
<p>Victims of the attack <a href="https://www.nytimes.com/2017/11/21/us/vegas-shooting-lawsuits.html">filed lawsuits last fall</a> against MGM Resorts International, the owner of the hotel and the festival grounds, alleging that the company provided lax security, ignored warning signs that Paddock was stockpiling guns and ammunition in his hotel rooms for days, and failed to respond quickly once the shooting was underway.</p>
<p>On July 13, MGM fired back.</p>
<p>The company <a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">filed a lawsuit in federal court</a> against the victims, seeking a declaration that, under federal law, it is immune from any liability for injuries arising out of the Las Vegas mass shooting. </p>
<p>In <a href="https://scholar.google.com/citations?user=yQUI6yEAAAAJ&hl=en">two decades of writing</a> about litigation arising out of gun violence, I believe that MGM’s legal strategy is unprecedented but not entirely unexpected. If successful, MGM’s lawsuit would fundamentally alter the duties that hotels and concert venues owe to their patrons at a time in our nation’s history when mass shootings have made them especially vulnerable.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A sign asks for prayers outside of the MGM hotel in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/fafbf3241e044b7b9415cd10b4266b66/6/0">AP Photo/John Locher</a></span>
</figcaption>
</figure>
<h2>The basis for MGM’s lawsuit</h2>
<p>MGM’s claim of immunity is based on a federal statute called the <a href="https://www.law.cornell.edu/uscode/text/6/chapter-1/subchapter-VIII/part-G">Support Anti-Terrorism by Fostering Effective Technologies Act</a> – known as the SAFETY Act – passed shortly after the Sept. 11, 2001, attacks on the Twin Towers and the Pentagon. </p>
<p>The act limits the liability of companies that develop new technologies or sell services to prevent and respond to terrorist attacks. More importantly for MGM’s purposes, the act makes the customers of such companies entirely immune from liability. These liability provisions apply to any claims arising out of “an act of terrorism.”</p>
<p>To provide security at the Route 91 music festival, MGM hired the <a href="https://csc-usa.com/">Contemporary Services Corporation</a>, a company whose security services have been certified by the secretary of Homeland Security to fall under the provisions of the SAFETY Act, which would render MGM, as a client, immune from liability.</p>
<h2>Why is MGM suing the victims?</h2>
<p><a href="http://cdn.cnn.com/cnn/2018/images/07/17/mgm.complaint.pdf">MGM’s complaint</a> asserts that more than 2,500 individuals have filed or threatened to file lawsuits against the company for injuries – ranging from death to emotional distress –arising from the shooting. </p>
<p>Because MGM’s lawsuit is based on a federal statute, it will be heard in a federal court. The company likely expects a federal judge would be less sympathetic to the victim’s claims than the local state court judges by whom the victims’ lawsuits will be heard. If the federal judge decides in MGM’s favor, that would put an end to the lawsuits in state courts.</p>
<p>MGM’s lawsuit seeks a declaratory judgment that it is immune from liability under the SAFETY Act, which would dispense with all 2,500 potential claims against it in one fell swoop. </p>
<p>The initial public response to MGM’s lawsuit has been <a href="https://www.usatoday.com/story/news/nation/2018/07/17/mgm-resorts-sues-victims-las-vegas-massacre-denies-liability/791511002/">highly critical</a>, but the company is likely betting that reducing its potentially disastrous liability exposure – which could run into hundreds of millions of dollars – is worth any damage to its brand.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=488&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=488&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=488&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People carry flowers as they walk near the Mandalay Bay hotel and casino during a vigil for victims and survivors of the mass shooting in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/51db84d4431e4459914f110d41609c98/3/0">AP Photo/John Locher, File</a></span>
</figcaption>
</figure>
<h2>MGM’s odds of success</h2>
<p>To obtain immunity under the SAFETY Act, MGM will have to convince the court that the Las Vegas mass shooting was an act of terrorism, which <a href="https://www.law.cornell.edu/uscode/text/6/444#2_A">the law</a> defines as an illegal act that “uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction.” Just how the court will decide that issue remains unclear.</p>
<p><a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">According to MGM’s own lawyer</a>, this is the first litigation invoking the act, and no court has yet interpreted the provisions of the act.</p>
<p>Gun sellers and retailers are already immune from such lawsuits arising out of the criminal misuse of the weapons that they sell under the 2005 Protection of Lawful Commerce in Arms Act. </p>
<p>If successful, MGM’s lawsuit would extend similar protection to the hotels, concert halls, fairgrounds, schools and other venues currently responsible under the law for taking reasonable measures to protect the public. MGM’s denial of any responsibility for public safety on its property represents a new strategy by public accommodations for responding to mass shootings: run for the exits.</p><img src="https://counter.theconversation.com/content/100229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton has provided expert consulting services to law firms representing gun violence victims</span></em></p>The hotel company filed an unprecedented lawsuit against the victims of the mass shooting in Las Vegas last October, arguing it has immunity from liability under federal law.Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/974362018-06-05T10:45:24Z2018-06-05T10:45:24ZOnly 1 in 4 women who have been sexually harassed tell their employers. Here’s why they’re afraid<figure><img src="https://images.theconversation.com/files/221641/original/file-20180604-175400-1s3uvak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Studies suggest few women formally complain about sexual harassment in the workplace. </span> <span class="attribution"><span class="source">andriano.cz/Shutterstock.com</span></span></figcaption></figure><p>On May 30, a <a href="https://www.nytimes.com/2018/05/30/nyregion/weinstein-indicted-rape.html">grand jury indicted</a> Harvey Weinstein on charges he raped one woman and forced another to perform oral sex on him. And new allegations and lawsuits against the movie producer <a href="http://www.post-gazette.com/news/nation/2018/06/03/Harvey-Weinstein-and-his-lawyer-are-sued-by-three-women/stories/201806030192">continue to pile up</a>.</p>
<p>Since the earliest reports of his abuse came out in October, <a href="http://www.bbc.com/news/world-us-canada-44257202">scores of women</a> in Hollywood have taken to social media and shared their own stories of sexual assault and harassment by Weinstein. And thanks to the <a href="https://metoomvmt.org">#MeToo movement</a>, women in a range of professions <a href="https://www.cbsnews.com/news/metoo-more-than-12-million-facebook-posts-comments-reactions-24-hours/">have also found their voices heard</a>, helping topple dozens of other once-powerful men in entertainment, media, sports, business, <a href="http://www.chicagotribune.com/lifestyles/ct-me-too-timeline-20171208-htmlstory.html">politics</a> and the <a href="https://www.nytimes.com/2017/12/18/us/alex-kozinski-retires.html">judiciary</a>.</p>
<p>But a question #MeToo has been asking since the beginning is how will this affect the lives of women far from the high-powered worlds of Hollywood and Washington. Is this making it any easier for a low or mid-wage worker in middle America to rid her workplace of a sexual harasser? </p>
<p>One important way of doing this is by making an official complaint to the employer. But while women will often complain to family or even on social media, most don’t tell their companies of the misconduct. In fact, barely 1 in 4 ever do. </p>
<p>How come?</p>
<p>Based on experience litigating sexual harassment cases as well as <a href="https://scholar.google.com/citations?user=ZCyGIBYAAAAJ&hl=en">my research</a>, I have determined there are three <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004120">legal barriers</a> that stand in the way of workers filing complaints – a critical step to rooting out harassment and protecting employees. </p>
<h2>Few formally complain</h2>
<p>About 30 percent of U.S. workers who experience sexual harassment informally talk about it with someone at the company, such as a manager or union representative, while far fewer lodge formal complaints, according to a <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">2016 Equal Employment Opportunity Commission report</a>. In addition, 75 percent of those who do formally complain say they face retaliation. </p>
<p>This is one reason for the success of #MeToo. It’s providing the kind of effective sexual harassment complaint forum that employees do not believe they have in their workplace. </p>
<p>Besides a fear of reprisal, the EEOC report cites several other reasons why employees usually don’t come forward, such as concern that they won’t be believed or the company training manual didn’t explain how to properly identify or address sexual harassment. </p>
<p>This is a big problem because if employees who have been sexually harassed don’t file formal complaints with their companies – without suffering retaliation – it is nearly impossible for employers to take action against the harasser or protect the worker. Furthermore, it becomes hard to hold an employer legally responsible if it fails to do either.</p>
<p>So while it’s positive that more women are sharing their own stories on social media and elsewhere, it can’t replace the formal employee complaint process. </p>
<h2>Three barriers</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=740&fit=crop&dpr=1 600w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=740&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=740&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=929&fit=crop&dpr=1 754w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=929&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=929&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The #MeToo movement has given women a forum for talking about sexual harassment.</span>
<span class="attribution"><span class="source">Rainmaker Photo/MediaPunch/IPX</span></span>
</figcaption>
</figure>
<p>Courts have erected three legal hurdles that discourage employees from filing complaints about sexual harassment. </p>
<p>One barrier is that courts have too narrowly defined sexual harassment when it involves a hostile work environment under <a href="https://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-2000e-2.html">Title VII of the Civil Rights Act of 1964</a>. It’s only deemed illegal when it involves unwelcome sexual conduct sufficiently “severe or pervasive” to alter the employee’s employment conditions.</p>
<p>Employees often don’t complain because they fear they won’t be believed that the harassment was sufficiently “severe or pervasive” enough to be legally actionable.</p>
<p>And who can blame them. <a href="https://caselaw.findlaw.com/us-8th-circuit/1068739.html">One court</a> found that a manager rubbing the shoulders, back and hand of an employee, accusing her of not wanting to be “one of my girls” while physically grabbing her, calling her “baby doll” and telling her she should be in bed with him were not sufficiently “severe or pervasive.”</p>
<p>These actions can be harmful and place women as subordinate in the workplace and, unregulated, lead to even more harmful actions. As such, I believe <a href="http://scholars.law.unlv.edu/nlj/vol14/iss3/2/">courts need to stop finding</a> such misconduct as “ordinary” or “de minimus” – a legal term meaning too trivial or minor to merit consideration.</p>
<p>Another hurdle is that employers have been largely shielded from liability when an employee complains of a hostile work environment that fosters sexual harassment. That’s because in 1998 the <a href="https://caselaw.findlaw.com/us-supreme-court/524/775.html">U.S. Supreme Court</a> gave employers a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004120">powerful defense</a> in such cases. </p>
<p>Specifically, if a company “exercised reasonable care to prevent and promptly correct any sexually harassing behavior” and the employee “unreasonably failed to take advantage of any preventive or corrective opportunities,” the employer would not be liable even though the worker was, in fact, sexually harassed.</p>
<p>Under this defense, courts have found that if an employer has an anti-sexual harassment policy, and the employee doesn’t complain, the employer generally won’t be found liable. This sounds reasonable, right? </p>
<p>Unfortunately, some employer <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">policies</a> meet the bare legal requirements while doing little to eradicate sexual harassment or encourage complaints by workers. And without <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">effective training</a> about sexual harassment and how to complain about it, employers’ policies stating “zero tolerance” for sexual harassment are meaningless. </p>
<p>Finally, I believe the laws punishing <a href="https://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-2000e-3.html">retaliation</a> are not strong enough. </p>
<p>Taking sexual harassment seriously means employers should not fire, demote or ostracize a worker who complains about sexual harassment as <a href="https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_ftnref65">they often do</a>. And while the law on the books purportedly protects complainants, courts have told workers that the protection is only for those who reasonably believe they were illegally sexually harassed. </p>
<p>This puts women back in the gray area of determining what is “severe or pervasive.” As I noted above, a manager rubbed an employee’s body, called her “baby doll” and expressed a desire to have sex with her. If that’s not deemed to be sexual harassment, how can employees complain with confidence that they will be protected? </p>
<h2>It’s time to toughen laws</h2>
<p>What can be done about this? </p>
<p>The good news is that Congress is already considering changes to sexual harassment law.</p>
<p>For example, Sens. Kirsten Gillibrand and Lindsey Graham <a href="https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html">have introduced</a> a bill to permit sexually harassed workers to litigate their cases in open court rather than be bound by private arbitration. The laudatory bill would prevent employers from keeping harassment or harassers secret from other workers. </p>
<p>But I believe lawmakers should go further by amending Title VII to expand and clarify what sexual harassment really is beyond “severe or pervasive,” strengthen worker protections against retaliation and require employers to create more effective policies and training. </p>
<p>The EEOC and other researchers have identified <a href="https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplace-prevention-effective.html">innovative methods</a> to address sexual harassment, such as a reward system for increased complaints, promoting more women, bystander intervention and civility training. Congress should pay attention and encourage these methods while also toughening existing law. </p>
<p>Inspired by #MeToo, Congress could help eradicate sexual harassment.</p><img src="https://counter.theconversation.com/content/97436/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret E. Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Courts have created three legal barriers that have made it much harder for workers to complain to their employers about sexual harassment.Margaret E. Johnson, Professor of Law and Co-Director, Center on Applied Feminism, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/972582018-05-30T05:12:14Z2018-05-30T05:12:14ZMore than just money: getting caught in a romance scam could cost you your life<figure><img src="https://images.theconversation.com/files/220893/original/file-20180530-80629-1g79ir9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Maria Exposto (centre), as she was escorted by the high court in Malaysia in December 2017. </span> <span class="attribution"><span class="source">EPA/Farzy Ismail</span></span></figcaption></figure><p>When Sydney grandmother Maria Exposto was last week <a href="https://www.smh.com.au/world/asia/australian-grandmother-maria-exposto-sentenced-to-death-in-malaysia-20180524-p4zhch.html">sentenced to death</a> by a Malaysian court for drug trafficking, she wasn’t the first Australian to be caught overseas with drugs, or to face the death penalty as a result. </p>
<p>What is both unique and troubling about the 57-year-old’s case is that she is the first known Australian to be handed the death penalty as a result of romance scam. </p>
<p>The Australian and Competition Consumer Commission’s <a href="https://www.accc.gov.au/publications/targeting-scams-report-on-scam-activity/targeting-scams-report-of-the-accc-on-scam-activity-2017">Targeting Scams</a> report, also out last week, revealed that A$42 million was reportedly lost to romance fraud by Australian victims in 2017.</p>
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Read more:
<a href="https://theconversation.com/a-record-340-million-lost-to-fraud-in-australia-says-latest-accc-report-96912">A record $340 million lost to fraud in Australia, says latest ACCC report</a>
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<p>But Maria Exposto’s case shows that the consequences of romance fraud are not just financial. It could cost you your life.</p>
<h2>Maria’s case</h2>
<p><a href="http://www.abc.net.au/news/2014-12-14/australian-woman-faces-death-penalty-for-drugs-in-malaysia/5966580">Maria Elvira Pinto Exposto was arrested</a> in Kuala Lumpur Airport in 2014, with more than 1kg of crystal methamphetamine sewn into her suitcase. Throughout her arrest and <a href="https://www.smh.com.au/world/australian-grandmother-on-drug-ice-charges-in-malaysia-maria-elvira-pinto-exposto-may-be-victim-of-a-military-romance-scam-20141221-12blrt.html">subsequent court case</a>, she maintained that she was the victim of romance fraud. </p>
<p>The original 2017 court decision regarding Maria’s case was significant. <a href="http://www.abc.net.au/news/2017-12-27/maria-exposto-drug-trafficking-sentence-in-malaysia/9287906">She was found not guilty of drug trafficking charges</a>, the judge Dato Ghazali accepting that she had been duped into carrying drugs by her online boyfriend.</p>
<p>The judge reportedly accepted that Maria had been groomed for more than two years by a man online claiming to be in the US military. Her trip through Malaysia was the result of his request to pick up a bag and travel with it from Shanghai to Melbourne. </p>
<p>This was the first time that a judge had recognised romance fraud as a mitigating factor in favour of the accused, and delivered a not guilty verdict. </p>
<p>But on appeal last week, this original ruling was <a href="https://www.news.com.au/world/asia/sydney-grandmother-sentenced-to-death-by-hanging/news-story/aefa4493c952267620bd38731751734a">overturned</a>. Maria was found guilty of drug trafficking and will now face death by hanging. Her lawyers are said to be <a href="https://www.theaustralian.com.au/news/nation/sydney-grandmother-maria-exposto-awaits-fate-in-last-room/news-story/22a99e9ebcadc59cca1e01fccbc1f8b2">considering a new appeal</a>.</p>
<h2>Not the only one</h2>
<p>Sadly, Maria is not the only victim to be held in an overseas jail as a consequence of falling victim to romance fraud. There are many others who have reportedly faced similar circumstances.</p>
<ul>
<li><p>Fellow Australian <a href="http://www.abc.net.au/news/2015-06-18/crime-syndicate-duping-elderly-into-trafficking-drugs/6555984">John Warwick</a>, aged 64, died in a Chinese police hospital in 2015, awaiting trial for charges related to the carrying of 1.9kg of methamphetamine.</p></li>
<li><p>New Zealand woman <a href="http://www.abc.net.au/news/2016-05-30/romance-scam-woman-shares-story-of-being-conned-jailed/7456300">Sharon Armstrong</a> spent two and a half years in an Argentinean prison after being arrested at Buenos Aires Airport in 2011 with more than 5kg of cocaine.</p></li>
<li><p>British professor <a href="http://www.dailymail.co.uk/news/article-2177693/Professor-Paul-Frampton-British-scientist-68-arrested-trying-smuggle-cocaine.html">Paul Frampton</a> was arrested in 2012 at Buenos Aires Airport with 2kg of cocaine. He was <a href="https://www.aps.org/publications/apsnews/201301/uncphysicist.cfm">sentenced to 4 years and 8 months in prison</a>.</p></li>
</ul>
<p>In each case, the scenario is identical. Each of the accused was involved with a partner they had met online. Each was travelling at the request of their partner. Each had accepted a suitcase from their partner (or partner’s associate), which had drugs sewn into the lining. </p>
<h2>Changing the narrative</h2>
<p>For too long, victims of romance fraud have been dismissed as <a href="https://eprints.qut.edu.au/61011/">foolish, naïve and responsible</a> for their own victimisation. The severity of the impacts and consequences of romance fraud are ignored. The role of the offender in all of this is invisible and therefore absent.</p>
<p>There is evidence to suggest that romance fraud offenders are using <a href="https://academic.oup.com/bjc/advance-article/doi/10.1093/bjc/azy005/4935144">psychological abuse</a> and <a href="https://theconversation.com/the-abuse-tactics-fraudsters-use-to-break-the-hearts-and-wallets-of-those-looking-online-for-love-93663">coercive control</a> techniques established in the domestic violence literature to perpetrate these offences. They are highly skilled individuals who use every means possible to deceive, manipulate and exploit victims. </p>
<p>For most victims, this means the loss of money. But for others it is far more serious and can also pose a risk to their physical safety. Victims can often be persuaded to travel overseas to meet with their partner, as demonstrated above. </p>
<p>Apart from potential exploitation as a drug mule, it can also expose them to <a href="https://www.bbb.org/en/us/article/news-releases/17057-online-romance-scams-a-bbb-study-on-how-scammers-use-impersonation-blackmail-and-trickery-to-steal-from-unsuspecting-daters">kidnapping, ransom and extortion</a>.</p>
<p>In the tragic case of Western Australian grandmother <a href="http://www.scamnet.wa.gov.au/scamnet/Scam_types-Dating__romance-Death_of_WA_romance_fraud_victim.htm">Jette Jacobs</a>, it resulted in her death, allegedly murdered by her online lover Jesse Orowo Omokoh, who had defrauded her of more than A$90,000. </p>
<h2>A dark future</h2>
<p>The statistics on romance fraud are staggering. Importantly, they are not declining, with the ACCC also reporting that <a href="https://www.accc.gov.au/publications/targeting-scams-report-on-scam-activity/targeting-scams-report-of-the-accc-on-scam-activity-2016">A$42 million</a> was lost to romance fraud in 2016.</p>
<p>Behind each statistic is a person: a mother, father, brother, sister, grandmother, grandfather, friend or colleague. Each one of them could have been facing the same situation as Maria. We need to shift the discussion of romance fraud away from the allure of victim culpability. </p>
<p>Instead, we need to acknowledge it for what it is: a serious crime that poses severe, ongoing and potentially deadly consequences to thousands of Australians, perpetrated by highly skilled, expert offenders. </p>
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Read more:
<a href="https://theconversation.com/the-abuse-tactics-fraudsters-use-to-break-the-hearts-and-wallets-of-those-looking-online-for-love-93663">The abuse tactics fraudsters use to break the hearts and wallets of those looking online for love</a>
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<p>Romance fraud is about more than just financial losses. It is also more than just the loss of a relationship. Instead, romance fraud can mean the loss of freedom for those who are unwittingly caught up in criminal justice systems across the globe.</p>
<p>Tragically, in the case of Maria Exposto, it could result in the loss of her life. </p>
<p>How many more lives need to be affected before we decide that romance fraud is a serious problem worthy of our attention? </p>
<h2>Tips for avoiding romance fraud (adapted from <a href="https://www.scamwatch.gov.au/types-of-scams/dating-romance#protect-yourself">Scamwatch</a>)</h2>
<ul>
<li><p>Never send money to someone that you have met online</p></li>
<li><p>Never agree to carry packages, or accept suitcases or bags from someone you have met online </p></li>
<li><p>Always assume that the person you are communicating with may not be genuine</p></li>
<li><p>Consider carefully any requests to travel (domestically or overseas) to meet someone you have met online. Seek advice from family and friends and study any warnings on <a href="http://smartraveller.gov.au/Pages/default.aspx">Smartraveller</a> </p></li>
<li><p>If you have any concerns or suspicions about someone you have met online, talk to a family member or friend, or contact authorities. Don’t feel pressured to respond in the moment. </p></li>
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<p>If you have been the victim of romance fraud, you can report or seek assistance via the Australian Cybercrime Online Reporting Network (<a href="https://www.acorn.gov.au/">ACORN</a>), <a href="https://www.scamwatch.gov.au/">Scamwatch</a>, or <a href="https://www.idcare.org/">iDcare</a>. </p>
<p>If you need to talk to someone as a result of romance fraud, you can contact <a href="https://www.lifeline.org.au/">Lifeline</a> on 13 11 14.</p><img src="https://counter.theconversation.com/content/97258/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cassandra Cross has received funding from the Criminology Research Grants Scheme, Australian Institute of Criminology. </span></em></p>Millions of dollars are lost each year by Australian’s caught in romance scams. But one Australian grandmother now faces paying a much higher price: she’s been sentenced to death.Cassandra Cross, Senior Lecturer in Criminology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941382018-03-29T09:28:21Z2018-03-29T09:28:21ZSurvivors of sexual violence are let down by the criminal justice system – here’s what should happen next<figure><img src="https://images.theconversation.com/files/212616/original/file-20180329-189827-129u74x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Seeking justice.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/witness-stand-black-seat-580450336?src=46-A02O4Xo2yRmDvqwesvw-1-2">Shutterstock</a></span></figcaption></figure><p>How well do criminal justice systems treat survivors of sexual violence? The answer is not only important to survivors. It also <a href="http://journals.sagepub.com/doi/abs/10.1177/1477370815571949">signals to society</a> how sexual violence should be viewed.</p>
<p>The poor treatment of survivors, when combined with <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">few perpetrators being convicted</a> and a <a href="https://www.secasa.com.au/assets/Statstics/judging-rape-public-attitudes-and-sentencing.pdf">perception of lenient sentencing</a>, could tacitly signal to society a “<a href="https://books.google.ie/books/about/Policing_Sexual_Assault.html?id=0I8K5x8oOJkC&redir_esc=y">decriminalisation of rape</a>”. This cannot be permitted.</p>
<p>Many survivors in the United Kingdom, Ireland and the US (which all have <a href="https://en.wikipedia.org/wiki/Adversarial_system">adversarial legal systems</a>) have <a href="http://www.rcni.ie/wp-content/uploads/Exec-Summary.pdf">negative experiences of the criminal justice system</a> (CJS). Many <a href="http://www.rcni.ie/wp-content/uploads/Exec-Summary.pdf">also have positive experiences</a>. But certain key problems are flagged time and time again.</p>
<p>There is an urgent need to discuss and rectify these.</p>
<h2>Problems entering the system</h2>
<p>The first problem with the CJS for survivors is that most never enter it in the first place. Sexual assault is <a href="https://www.bjs.gov/content/pub/pdf/vnrp0610.pdf">the most unreported crime against the person</a>. Over 80% of survivors <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">never report their experiences to the police</a>. </p>
<p>The reasons for this are often <a href="http://mams.rmit.edu.au/igzd08ddxtpwz.pdf">rooted in fear</a>. Fear of disbelief, of unjustified blame, of retribution, of re-traumatisation, of the impact on their family and community and of being let down by the system. One <a href="http://www.theliffeypress.com/rape-and-justice-in-ireland.html">Irish study</a> found the CJS had “assumed such terrible proportions in the minds of some rape victims that they would prefer to forego any prospect of justice rather than engage with it”. </p>
<p>Even when people do enter the CJS, many leave it again. Survivors’ first contact with police is well known to be a <a href="https://www.cps.gov.uk/publication/report-independent-review-investigation-and-prosecution-rape-london-rt-hon-dame-elish">“make or break”</a> stage. <a href="http://journals.sagepub.com/doi/abs/10.1177/1077801205277539">A 2006 study found that</a> more than 80% of rape survivors without advocacy support felt bad about themselves, and reluctant to seek further help, after their first contact with police. </p>
<p>In recognition of such problems, many police forces have committed to improving training for officers. This seems to be having some positive effects. For example, <a href="http://www.rcni.ie/wp-content/uploads/RCNI-RCC-StatsAR-2015-1.pdf">a 2015 report found</a> that 69% of survivors of sexual violence in Ireland who filed a complaint with police felt the police had treated them sensitively (an increase of 6% from the previous year).</p>
<h2>The problems at trial</h2>
<p>Around <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">8% of cases</a> reported to police are taken to trial. Here, survivors face further challenges. As the psychologist <a href="https://www.ncbi.nlm.nih.gov/pubmed/16043563">Judith Herman has noted</a>, “if one set out intentionally to design a system for provoking symptoms of traumatic stress it would look very much like a court of law”. </p>
<p>In particular, cross-examination is frequently cited as <a href="https://www.tandfonline.com/doi/abs/10.1080/15564880903048529">retraumatising</a>. In adversarial legal systems, it is the job of the defence to bring the prosecution’s case into doubt. In sexual violence cases, the survivor’s testimony may be the only evidence. This will therefore be the focus of attack for the defence. <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">This is typically done by</a> undermining the survivor’s credibility and reliability, and their story’s plausibility and consistency.</p>
<p>Survivors may be accused of lies and fabrication. <a href="https://www.sciencedirect.com/science/article/pii/S1756061614000482">Rape myths and stereotypes</a> can be invoked. Detailed questioning can recreate the powerlessness and terror of the original assault. This is referred to as <a href="http://journals.sagepub.com/doi/abs/10.1177/088626001016012002">secondary victimisation or the second rape</a>. It can have serious consequences for survivors’ mental health and well-being.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rape myths impact juror decision making.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/multi-ethnic-jurors-witness-stand-court-121503349?src=P9umXpNmNuQJcoJGhYrNKw-1-17">Shutterstock</a></span>
</figcaption>
</figure>
<p>Survivors have to deal with this while potentially suffering from the <a href="https://www.ncbi.nlm.nih.gov/pubmed/28689071">psychological consequences</a> of experiencing sexual violence. For example, rape is the most likely form of trauma to lead <a href="http://www.nejm.org/doi/full/10.1056/NEJMra012941">to post-traumatic stress disorder</a> (PTSD). </p>
<p><a href="https://www.psychiatry.org/psychiatrists/practice/dsm">People with PTSD</a> will often try to avoid thoughts and feelings about the trauma. Yet survivors will be forced to address the trauma in excruciating detail in court. PTSD is also associated with exaggerated feelings of blame, overly negative thoughts and assumptions about oneself, and difficulties with memory. </p>
<p>Ironically, the psychological consequences of sexual violence can be <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">what the defence uses</a> to undermine survivors’ claims to have experienced sexual violence.</p>
<h2>What should happen now</h2>
<p>Reforms to the legal system have focused more on improving its effectiveness (for example, increasing conviction rates) than on increasing its sensitivity to survivors’ needs. Yet, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1747-4469.1994.tb00941.x/abstract">it has been questioned whether</a> a prosecution that results in a conviction but devastates the victim is really a success. </p>
<p>The starting place for improvement is listening to survivors. This can establish <a href="https://aifs.gov.au/publications/family-matters/issue-85/what-justice-system-willing-offer">what their needs are</a>, what <a href="https://minerva-access.unimelb.edu.au/bitstream/handle/11343/42213/Haley%20Clark%20Thesis.pdf?sequence=1">justice is for them</a>, and what changes they think are necessary. Obviously, this will have to be balanced against the rights of defendants.</p>
<p>Survivors should have legal, psychological and advocacy support. They should be entitled to <a href="http://www.drcc.ie/wp-content/uploads/2011/03/rapevic.pdf">separate legal representation</a> throughout their trial. This can <a href="http://www.drcc.ie/wp-content/uploads/2011/03/rapevic.pdf">increase their satisfaction</a> with the process. They should have the support of an advocate. This <a href="http://journals.sagepub.com/doi/abs/10.1177/1077801205277539">can make survivors</a> less likely to be treated negatively by the police, more likely to receive medical care and less likely to be distressed by medical services. </p>
<p>Survivors should be <a href="http://www.ukpts.co.uk/site/assets/From-Report-to-Court-UKPTS-final.pdf">offered psychological support</a> throughout their involvement with the CJS. Courts and juries should be educated on the <a href="http://www.ukpts.co.uk/site/assets/From-Report-to-Court-UKPTS-final.pdf">potential psychological effects</a> of sexual violence on survivors. This should include effects that relate to strategies commonly employed by the defence during cross examination. </p>
<p>For example, defence lawyers often attempt to undermine the reliability of survivors’ testimony by <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">challenging them about memory fallibility</a>. Courts may consider inconsistencies, low detail, errors and omissions in survivors’ memories as undermining their testimony. However, <a href="http://openaccess.city.ac.uk/15348/">contemporary psychological understandings of memory</a> consider this typical. Memory is not like a DVD.</p>
<h2>Beyond reform</h2>
<p>Reform may not be enough. The adversarial system is designed to achieve justice for the accused, not the victim. A <a href="http://paralleljustice.org">parallel system</a>, which decouples the pursuit of justice for victims from the administration of justice for offenders, could be helpful to survivors.</p>
<p>A shift to <a href="https://core.ac.uk/download/pdf/9257247.pdf">an inquisitorial system</a> could also help survivors. Here, the state investigates an event and the persons involved to establish the truth. </p>
<p>And yet, all this may still be unsuccessful if we don’t remove from society the <a href="http://journals.sagepub.com/doi/abs/10.1177/0886260509354503">myths and prejudice that surround sexual violence</a>. This is work for everyone.</p><img src="https://counter.theconversation.com/content/94138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon McCarthy-Jones receives funding from the Brain & Behavior Research Foundation.</span></em></p>Reliving trauma and not being believed – just two of the damning indictments about seeking justice for sexual violence.Simon McCarthy-Jones, Associate Professor in Clinical Psychology and Neuropsychology, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.