In addition to disability insurance purchased privately by individuals or employers, three other major types of disability insurance are available: Workers’ Compensation, Social Security Disability Insurance, and Supplemental Security Insurance. The first two, Workers’ Compensation and SSDI, are available to individuals with work connections. The third, SSI, does not require a work connection.Workers’ Compensation laws were initially passed to provide economic protection for workers and their families when a worker suffered an accident on the job (...) resulting in an injury. The first laws passed were subject to court challenges based on their constitutionality. Ultimately courts approved the constitutionality of the Workers’ Compensation laws rationalizing that the laws created a compromise whereby an employee gave up her right to sue for a tort recovery in exchange for the employer's agreement to pay benefits without regard to the cause of the accident. (shrink)

This article argues that the use of genetic testing to determine eligibility for worker compensation and/or social security disability benefits would seriously undermine the social purposes of the laws.

The U.S. Supreme Court held, in American Manufacturers Mutual Insurance Co. v. Sullivan, 119 S. Ct. 988, that state workers’ compensation system insurers cannot be sued for withholding health care benefits for work-related injuries while they decide whether the treatment is “reasonable” and “necessary.” The respondents, ten employees and two organizations representing employees who received medical benefits under the Workers’ Compensation Act, brought a 42 U.S.C. § 1983 action against state officials, the Pennsylvania State Workers’ Insurance Fund, private (...) insurers, and the school district, alleging that their due process rights were violated by provisions of the Pennsylvania Workers’ Compensation Act, 77 Pa. Cons. Stat. Ann. § 1 et seq.. The Act permits suspension of benefits without notice or opportunity to be heard pursuant to a “utilization review” process.To control costs, Pennsylvania amended its workers’ compensation system in 1993. Under the Act, an employer or its insurer must pay for all reasonable and necessary medical treatment. (shrink)

Duty of care is the core ethical responsibility of healthcare workers. Getting the workforce vaccinated will provide safety to the public, protect the vulnerable population and provide a safe working environment. While most agree that healthcare workers should be prioritised in the vaccination programme, mandatory vaccination remains a complicated and contentious issue with political, legal and ethical dimensions. This study aims to determine the ethical considerations associated with mandatory vaccinations among healthcare workers. A total of 152 abstracts were identified of (...) which, 142 were excluded based on abstracts because they did not meet the inclusion criteria. The remaining ten articles were further evaluated with three articles that fit the inclusion criteria specifically discussing mandatory vaccination among healthcare workers and the ethical issues. Benefits, risks, effectiveness, equity and justice, autonomy, reciprocity and trust were used as a framework to discuss the ethical considerations which resonated both directly from the included papers, as well as more generally from the other literature associated with this search. There is limited literature on the topic of ethical considerations associated with COVID-19 mandatory vaccination of healthcare workers, as a systematic review identified only 3 papers. Benefits, risks, effectiveness, equity and justice, autonomy, reciprocity and trust were among the seven ethical considerations identified and discussed. (shrink)

Determining appropriate legal responses to the conduct of health care workers who endanger patients continues to provoke fierce debate. This is particularly true in the context of criminal law, which offers punishment as an obvious strategy. In the first of three papers which make up this issue's extended Health Care Law feature, Professor Alexander McCall Smith and Dr Alan Merry argue against the prosecution of health care workers except in circumstances where there is very dear evidence of a culpable frame (...) of mind. They do so against the backdrop of their description of proposed changes in New Zealand legislation on medical manslaughter. The catalyst for this change was a judge's refusal to countenance the prosecution of an anaesthetist for manslaughter for inadvertent error. In the authors' opinion the intervention by the New Zealand judge has given rise to a long overdue review of a harsh penal measure. However, in a commentary on McCall Smith and Merry's paper, Ron Paterson argues that all is not what it seems and that--in the light of New Zealand's 'no fault' system of compensation for medical accident--the present system should be maintained. (shrink)

The workers’ compensation system in Taiwan cannot provide sufficient coverage for all workers. This essay adopts a solidaristic approach to address this issue by analyzing the reasons why workers’ compensation is underdeveloped in Taiwan and what could be done to persuade more key actors to support the reform for a more just policy arrangement. First, through comparison with the healthcare system, it is argued that the lack of solidarity and the perception of relevant similarities could explain the underdevelopment (...) of workers’ compensation. Second, the essay turns to the normative aspect of the issue. Compared with other normative political theories, Iris M. Young’s social connection model provides specific normative guidance that is useful for justifying the allocation of responsibility for a more just workers’ compensation reform. (shrink)

gamete donation, embryo donation, and surrogate motherhood. The OTA Report Infertility provides a range of policy choices for handling these reproductive procedures. The choice among these alternative regulations needs to be developed within the framework of the right to privacy of the U.S. Constitution, which provides support for an approach that allows the progenitors to control the uses made of their generative materials and to receive compensation for them, subject to laws which facilitate informed consent and attempt to (...) assure quality. Keywords: right to privacy, in vitro fertilization, artificial insemination, surrogate motherhood CiteULike Connotea Del.icio.us What's this? (shrink)

On 24th March 2020, the first nationwide complete lockdown was announced by the Prime Minister of India for 21 days which was later extended to 31st May 2020. Consequently, thousands of migrant workers placed in big cities had no other option but to go back to their native villages. Their journeys back to villages- thousands of kilometres on bicycles or foot due to the non-availability of public transport amidst the travel ban- were driven by the compulsions of food and shelter. (...) In one of many heart-wrenching incidents, sixteen laborers were run over by a freight train while they were resting on the railway tracks. The images of the Roti on the railway track strewn across were beamed on the national news channels, as a telling commentary of the unimaginable hardships of these workers. Ironically, in the eyes of law, they were trespassers under the Indian Railways Act, 1989. The Indian Railway did not pay any compensation to the victims. Their act also violated the Indian Disaster Management Act, 2005 and Indian Penal Code, 1860- the law for the breach of lockdown guidelines and the law for disobedience of order by public servants respectively- for having decided to travel amidst a travel ban. The semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability’ are seldom questioned on their supposed amoral foundations. Pandemic exhibited that social fissures not only condition the individual or community actions but also the actions of the State. Minorities especially Muslims were at the receiving end of State’s selective enforcement of lockdown laws in India. The various instances in the wake of the COVID-19 pandemic expose the hollow claims of equality before the law and the equal protection of laws as a constitutional promise to every citizen. This article aims to unravel the ostensible and the actual moral exhibition of such Indian laws through the lens of several incidents during the nationwide lockdown in India. This paper would argue that this constructed positivist amorality needs to be deconstructed to unearth the power imbalance that it seeks to hide. (shrink)

In the article “A Proposal to Address NFL Club Doctors’ Conflicts of Interest and to Promote Player Trust,” Glenn Cohen et al. write, “The [NFL's] current structure forces club doctors to have obligations to two parties—the club and the player—and to make difficult judgments about when one party's interests must yield to another's.” I can understand why some might be suspicious about bias in the current NFL medical system, in which the club doctors have a professional duty to put their (...) player-patients’ best interests first yet are employed by clubs, which have a primary goal of winning football games. It is my opinion, however, that neither the club nor the player needs to be sacrificed. I base this opinion partly on my experience as an NFL player in the early 1980s, partly on several years as team physician for the Boston Red Sox, and partly on my twenty-three-years of experience as a physician with the Connecticut Workers’ Compensation medical system, which supposes that physicians can be fair to both workers and employers. (shrink)

The published version of this article one reference was originally given with an incorrect author name. This has now been corrected online.

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the (...) world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

This article examines how migrant and immigrant sex workers have been rendered invisible before the courts and parliament in the reform of laws regarding sex work in Canada. A discourse analysis of the expansive legal record in the Bedford case and the transcripts of Parliamentary debates and testimony before Standing Committees confirm the lack of nuanced discussion on how criminal law reform could impact migrant and immigrant sex workers. As such, while the case of Bedford and the resulting change (...) in the law made by Parliament have been celebrated as a win for some sex workers as an acknowledgment, recognition and judicial validation of experiences by legal institutions of sex workers, a sub-group of women – migrant and immigrant sex workers – remain in the shadows. This article examines how law excludes migrant and immigrant sex workers; it is a starting point for research on how migrant and immigrant sex workers may participate in future legal reform. (shrink)

The COVID-19 pandemic has created unusually challenging and dangerous workplace conditions for key workers. This has prompted calls for key workers to receive a variety of special benefits over and above their normal pay. Here, we consider whether two such benefits are justified: a no-fault compensation scheme for harm caused by an epidemic and hazard pay for the risks and burdens of working during an epidemic. Both forms of benefit are often made available to members of the armed forces (...) for the harms, risks and burdens that come with military service. We argue from analogy that these benefits also ought to be provided to key workers during an epidemic because, like the military, key workers face unavoidable harms, risks and burdens in providing essential public good. The amount of compensation should be proportional to the harm suffered and the amount of hazard pay should be proportional to the risk and burden endured. Therefore, key workers should receive the same amount of compensation and hazard pay as the military where the harms, risks and burdens are equivalent. In the UK, a form of no-fault compensation has recently been made available to the surviving families of key workers who suffer fatal COVID-19 infections. According to our argument, however, it is insufficient because it offers less to key workers than is made available to the families of armed services personnel killed on duty. (shrink)

This thesis considers two allegations which conservatives often level at no-fault systems — namely, that responsibility is abnegated under no-fault systems, and that no-fault systems under- and over-compensate. I argue that although each of these allegations can be satisfactorily met – the responsibility allegation rests on the mistaken assumption that to properly take responsibility for our actions we must accept liability for those losses for which we are causally responsible; and the compensation allegation rests on the mistaken assumption that (...) tort law’s compensatory decisions provide a legitimate norm against which no-fault’s decisions can be compared and criticized – doing so leads in a direction which is at odds with accident law reform advocates’ typical recommendations. On my account, accident law should not just be reformed in line with no-fault’s principles, but rather it should be completely abandoned since the principles that protect no- fault systems from the conservatives’ two allegations are incompatible with retaining the category of accident law, they entail that no-fault systems are a form of social welfare and not accident law systems, and that under these systems serious deprivation – and to a lesser extent causal responsibility – should be conditions of eligibility to claim benefits. (shrink)

Limited attention has been paid to the potential of tort law to address the harm of sexual violence. Based on interviews with 35 victim-survivors of sexual violence in Iceland, this study asks: How do victim-survivors understand monetary compensation? How can tort law meet victim-survivors’ justice interests? The findings suggest that in addition to the financial risk involved, most participants had ambivalent views towards pursuing and receiving monetary compensation. Many thought that, given their often extensive pecuniary and non-pecuniary losses, (...) it was only fair to receive compensation; but at the same time, they did not want to accept ‘dirty money’ they considered that pursuing monetary compensation could undermine their credibility, and monetary compensation only partially aligned with their ideas about justice. The findings are interpreted in the context of tort law theory, taboo trade-offs and survivor-centred justice. It is suggested that state intervention is needed to better meet victim-survivors’ justice interests. (shrink)

In public health and the social sciences, there is growing recognition of the role that social context plays in determining health. Frequently, social relations of inequality are among the most important features of social context identified in this work, and emphasis is placed on identifying and addressing these inequalities in order to improve health. Within the field of HIV/AIDS prevention as well, researchers have begun to look beyond individuals for an understanding of the structural causes of HIV-related risk. This research (...) demands that greater attention be paid to the social mechanisms and contextual factors that lead to HIV risk. Among these factors are law and social policy, which form a part of the context in which risk-taking occurs and which can promote both HIV transmission and prevention. On the one hand, laws limiting access to sterile injection equipment have contributed to HIV-related risk behavioxs among injection drug users. (shrink)

In public health and the social sciences, there is growing recognition of the role that social context plays in determining health. Frequently, social relations of inequality are among the most important features of social context identified in this work, and emphasis is placed on identifying and addressing these inequalities in order to improve health. Within the field of HIV/AIDS prevention as well, researchers have begun to look beyond individuals for an understanding of the structural causes of HIV-related risk. This research (...) demands that greater attention be paid to the social mechanisms and contextual factors that lead to HIV risk. Among these factors are law and social policy, which form a part of the context in which risk-taking occurs and which can promote both HIV transmission and prevention. On the one hand, laws limiting access to sterile injection equipment have contributed to HIV-related risk behavioxs among injection drug users. (shrink)

In India, more than ninety percent of the workforce is informal. In spite of this enormous percentage of informal workers, these workers remain invisible to law and policy circles. One of the reasons for such exclusion and invisibility is the absence of unionism involving informal workers. In order to overcome this invisibility, informal workers are increasingly organizing into associations that are different from traditional trade unions. These organizations devise their strategies and their legal statuses in view of the atypical characteristics (...) of informal activities. In this Article, I document some of these organizations of self-employed informal workers in India – their characteristics and functions. On this basis, I contend that these organizations offer a model for collective action by informal workers. I argue that these associations are a sui generis organization of informal workers, and could become a precursor to solidarity-based collective initiatives by informal workers globally. In the backdrop to this proposition, I analyze the role of law in promoting such aggregation of informal workers in furtherance of their collective action. I argue that while organizations of informal workers in India employ the existing legal framework to the best of their advantage, the law fails to recognize some of their status as workers, thereby creating hurdles towards informal workers’ collective action. A small farmer works on her own farm. In tough times, she also works on other farms as a laborer. When the agriculture season is over, she goes to the forest to collect gum and other forest produce. Year round, she produces embroidered items either at a piece rate for a contractor or for sale to a trader who comes to her village to buy goods. Now, how should her trade be categorized? Does she belong to the agricultural sector, the factory sector, or the home-based work sector? Should she be categorized as a farmer or a farm worker? Is she self-employed or is she a piece-rate worker? Because her situation cannot be defined and contained neatly in a box, she has no work status and her right to representation in a union is unrealized. She is denied access to financial services or training to upgrade her skills. The tyranny of having to belong to a well-defined “category” has condemned her to having no “identity.” — Ela R. BhattEla R. Bhatt, We Are Poor but So Many: The Story of Self-Employed Women in India 17. (shrink)

The extent to which English law remedies injury to autonomy as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to English remedies (...) law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her. (shrink)

Under the Canadian labour laws that govern workplace safety, wage, and other work conditions, ‘family’ workers are not covered by the law under special rules for agriculture. Among other legal exclusions, the family farm exclusion contributes to a dearth of basic work, health, and safety standards in the sector, despite the commercialization and industrialization of family farming activities. Through a focus on Alberta, Canada—where farm labour rules have only applied to agriculture since 2016—this article explores the family exclusion in (...) relation to family farming experiences with work and risk, based on interviews with farm operators, their family members, and farm employees in Alberta. While some participants continued to press for exemptions for farms from labour rules under the rationale that there is intrinsic safety within families, the findings also reveal how other participants have begun questioning this rationale, despite their overall support for the family farm exemption in Alberta. Using the lens of legal geography and critical perspectives on the family, we argue that the family is a significant but under-examined dynamic in the legal regimes governing farm labour and agricultural safety and health. Together, the law and dominant narratives about family farming treat farm operations as hyper-private domains, where operators have disproportionate power to dispose of their own work and the work of others how they wish. These legal geographies of hyper-privacy contribute to the indecent work conditions that characterize farm labour systems in Alberta and other jurisdictions. (shrink)

In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice to fully justify it in a given community. It all depends on whether victims (...) of accidents are able to vindicate their rights against wrongdoers on a regular basis. If social conditions make this unlikely, then the state might be morally required to implement other forms of compensation, either replacing tort law altogether or supplementing it with social insurance in cases where private justice mechanisms tend to fail more dramatically. (shrink)

The National Labor Relations Act of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop an (...) alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results. (shrink)

Hong Kong’s adherence to the rule of law has been widely understood as one of its “core values.” As such, it has been understood as an institution necessary for good governance and a check against the abuse of governmental power as well as a feature that differentiates Hong Kong’s system of governance from other parts of China. At the same time, intervening issues of immigration and of constitutional interpretation have begun to challenge this perception. This paper argues that a recent (...) landmark decision involving the right to permanent residence has served to weaken the rule of law in Hong Kong. It has further highlighted a lack of commitment by the judiciary to either human rights claims or equal treatment under the law. (shrink)

Solnica et al argue that “Jewish law and modern secular approaches based on professional responsibilities obligate physicians to care for all patients even those with communicable diseases”. The authors base their viewpoint on the opinion of Rabbi Eliezer Waldenberg and apply it to suggest that physicians are obligated to endanger themselves during epidemics, such as COVID-19. It is argued that Solnica et al’s analysis of Rabbi Waldenberg’s text and their conclusion that healthcare workers are obligated to endanger themselves while treating (...) patient who suffer from contagious illness during epidemics according to Jewish law suffer from various shortcomings. Indeed, Jewish law looks favourably on healthcare workers who take a reasonable risk in treating their patients in the context of epidemics. However, it is considered a voluntary supererogatory act—not obligatory. Solnica et al may express a legitimate ethical viewpoint. However, it does not seem to represent the mainstream approach of what Jewish law would demand as obligatory from its practitioners. (shrink)

(No abstract is available for this citation).

Book reviewed in this article: PBB: An American Tragedy. By Edwin Chen. The Law and Policy of Toxic Substances Control: A Case Study of Vinyl Chloride. By David D. Doniger.

By most measures, French labor is among the weakest in the industrialized world. Yet it has retained a high level of mobilizing and institutional power. This unusual position is partly due to the historical role of labor courts, one of France’s oldest and most influential labor institutions. Based on a range of historical and contemporary evidence, this article shows that the involvement of the state and labor in these courts over the past two centuries has played a crucial role in (...) the evolution of French industrial relations. This process unfolded along three main dimensions: the early establishment of labor courts strongly and durably influenced the mobilization patterns of the emergent labor movement, France’s labor relations model was largely inspired by the judicialism embedded in labor courts, and a combination of more contingent events led to the emergence of a problematic notion of union“representativeness.” These patterns have contributed to shape French labor into its present condition of both weakness and strength. (shrink)

This paper discusses recent changes to state legal frameworks for mandatory vaccination in the context of school and healthcare worker vaccination. It then discusses state laws that allow pharmacists the authority to vaccinate.

Compensation for research related injuries is a subject that is increasingly gaining traction in developing countries which are burgeoning destinations of multi center research. However, the existence of disparate compensation rules violates the ethical principle of fairness. The current paper presents a comparison of the policies of Brazil, Russia, India, China and South Africa. A systematic search of good clinical practice guidelines was conducted employing search strategies modeled in line with the recommendations of ADPTE Collaboration. The search focused (...) on three main areas namely bibliographic data bases, clinical practice guidelines data bases and a restricted internet search. A manual search of references cited in relevant guideline documents was also conducted. The search terms, Medical Subject Headings and key words were developed for a PubMed platform and then adapted for all other data bases. The search terms were kept constant for each country with the only difference being the country name. The documents so obtained were subjected to systematic content analysis. The study revealed that there is vast panoply of regulations which exist on a continuum. On one extreme is India with comprehensive regulations that are codified into law, and on the other end there is China which does not have specific laws regulating research related injuries. There are a number of differences and similarities such as mandatory insurance requirements, existence of no fault compensation, compensable injuries and the role of research ethics committees. It is imperative to enact legislations that protect participants without stifling the research enterprise. There is need for consistency and ideally harmonization of such regulations at a global level. A model policy on compensation for research related injuries should borrow from the best aspects of the different country policies and should be informed by the cardinal ethics principles of autonomy, justice and beneficence. (shrink)

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

That government agencies and public bodies can be liable for damages when they induce and then frustrate people’s legitimate expectations is an important and distinctive feature of administrative law in Europe. This article sets out to establish a set of moral principles and ideals that might justify this legal institution. The notion of security of expectations found in the work of utilitarian writers provides a starting point. Having examined the strengths and weaknesses of this approach, I then turn to consider (...) an alternative argument based on finding a solution to the problem of credible commitments. Finally, I look for suitable moral arguments in the liberal and Kantian political theorising of John Rawls. I argue that if we see the function of the rule of law as not merely to maximise aggregate utility and to make policymakers’ decisions seem credible but also to ensure Justice as Fairness for individuals, then this provides a more robust and satisfactory way to justify the liability of public bodies for legitimate expectations they induce and then frustrate. (shrink)

Nanotechnology has revolutionized various industries and has become a notable catalyst for economic growth. The emerging issues of human health and safety associated with nanotechnology development have raised regulatory concerns worldwide. In occupational settings, the same novel characteristics of nanomaterials that are utilized for innovation may also be the source of toxins with adverse health effects for workers. The existing regulatory framework may function effectively to regulate chemical substances in their conventional forms but may not be adequate with regard to (...) the specific issues of nanoform substances. A foundation of knowledge concerning properties of nanomaterials, and risk management approaches for these materials have been established, but conclusive results remain elusive. It is difficult for lawmakers to regulate nanotechnology-related activities effectively if conventional regulatory mechanisms are applied. The present article analyses in a country study the adequacy of existing Malaysian occupational safety and health law with regard to the specific issues presented by nanotechnology. The applicable regulatory approaches are examined to justify the adoption of soft law instruments as regulatory mechanisms for nanotechnology. A number of soft law best practices are briefly discussed as a basis to recommend practical solutions to close the existing regulatory gap. (shrink)

When states are required to compensate victim groups for the historic wrongs they have committed, how should the compensation due be calculated? It seems that alongside the counterfactual world in which the wrongdoing never occurred, we should also consider the counterfactual world in which the wrongdoing has occurred, but the victims have responded to it in a prudent way. Under tort law, the damages a victim can claim are reduced if they are judged to have been contributorily negligent, thereby (...) exacerbating the harm they have suffered. The paper considers four reasons why victim groups could not be expected to respond collectively to injustice in a way that outsiders might judge to be prudent. 1. The wrongdoing has destroyed their capacity to act as a group agent. 2. The wrongdoing has inflicted psychological traumas that lead them to make poor decisions. 3. They would need to violate a moral norm that is deeply embedded in their culture. 4. They would need to adopt policies that risk inflicting severe injustice on an internal minority. In many instances of historic injustice, one or more of these reasons apply. So although in principle victims’ behaviour is relevant when compensation is being calculated, we must be very cautious in using that doctrine to assess real cases. (shrink)