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the uk, and how not to manage a country June 12, 2017

Posted by Bradley in : Uncategorized , add a comment

Last week’s election followed months of the UK not managing Brexit at all well, in contrast to the efficient, bureaucratic way the EU seems to have managed its end of the process (to be fair the EU institutions have much more recent experience of thinking about trade and EU-treaty related issues than anyone in the UK Government seems to have had). The election result might have been seen as an opportunity to take on board some of the mountains of evidence of the downsides of Brexit – especially a hard Brexit – in particular parliamentary committees have generated a number of very worrying reports. This doesn’t seem to be happening yet. More importantly the powers that be don’t seem to be responding with any more competence to the current situation than they did to the initial post-referendum period, or to running an election. This doesn’t bode very well for the future of the country.

nursing homes, powers of attorney, arbitration: kindred nursing centers v clark May 15, 2017

Posted by Bradley in : dispute resolution , add a comment

In the Fall of 2015 I assigned Extendicare Homes v Whisman to my contracts students as an interesting basis for exploring the extent to which contract formation issues might fall outside the pre-emption ruling in AT&T v Concepcion, an issue that many courts had focused on. The Supreme Court has now held (in Kindred Nursing Centers v Clark) that the critical issue is not whether the contract law issue relates to formation or not but whether the relevant rule is a rule that focuses on arbitration (the court points out that in AT&T v Concepcion the court had discussed duress, which applies in the context of contract formation). The Kentucky rule that required specific authority to the grantee of a power of attorney to waive the constitutional right to a jury is a rule that focuses on arbitration and is thus pre-empted by the FAA. Arbitration agreements should be treated “on an equal footing with all other contracts.” Justice Kagan emphasizes in the opinion that there is nothing new here: this is entirely consistent with the Court’s prior decisions.

I think it’s pretty clear that the decision is consistent with this prior case law, and that the court is correct that allowing this sort of getting round the pre-emption issue would invite further acts that could undermine the idea of pre-emption entirely.

But at the same time, duress and lack of authority of an agent to enter into a contract seem to me to involve two very different sorts of formation issue. The language of section 2 of the FAA, “save upon such grounds as exist at law or in equity for the revocation of any contract” seems more applicable to duress (where there seems to be a contract which is treated by the court, in its discretion, as unenforceable) than to the agent’s authority where the court would merely recognize that there was never any valid contract because the party concluding it id not have the power to do so. Conflating the two types of case is not analytically clearly correct. And recognizing this also shows that the floodgates argument – to allow this sort of approach would end up undermining pre-emption altogether – is completely oversold.

uk election: yet another broken promise April 21, 2017

Posted by Bradley in : brexit , add a comment

I have lived outside the UK for long enough that I haven’t been able to vote in elections. This did not bother me too much to begin with because the constituency I lived in before I came to Miami was so obviously going to vote in a way that made one vote irrelevant. But it did bother me when the referendum happened: I would have liked to have a vote recorded on that issue. So I was very pleased to read that there was a new plan to allow expatriates to vote in UK elections. I know the theory was that most of them would be older and would vote conservative, but all the same. Now it seems that the election will take place without allowing a vote to the disenfranchised living abroad, probably because most of them are in other European states and worried (rightly) about their futures. So it is yet another lie/broken promise in this Brexit context.

For this election, where attitudes to the EU are significant they (we) don’t get a vote. But afterwards – after we are all disadvantaged by this decision – what chance any of those people will vote conservative in future? So probably a promise broken not just now, but for the future also.

brexit paper April 17, 2017

Posted by Bradley in : brexit , add a comment

Here’s a new paper on Brexit I have been working on for a while: European (Dis)Union: From the 1992 Single Market to Brexit.

how brexit will stop immigration into the uk March 22, 2017

Posted by Bradley in : brexit , add a comment

As businesses are forced to relocate (here airlines) or move large numbers of people to EU countries the UK will become less and less attractive as a place to live. The House of Lords European Union Committee reported this week on the significant downside to the UK of a departure without agreement to protect the UK’s non-financial services sector. The report notes:

Negotiations on a FTA and the UK’s withdrawal from the EU should recognise the link that exists between trading services and the cross-border movement of persons. The continued movement of workers and service providers in both directions is seen by the UK’s booming services sectors as necessary to support growth. Without provisions in a FTA, trade in tourism, education and health-related travel services between the UK and the EU will also be restricted.

Meanwhile, the House of Commons Justice Committee reports on the UK’s continuing need to collaborate with the EU on criminal and civil justice after Brexit.
But despite all this it looks as though the notification will be made next week.

policy: slogans or complexity? February 27, 2017

Posted by Bradley in : governance , add a comment

Nobody knew it could be so complicated. Actually, anyone who thought about it for more than 30 seconds knew it was very complicated.

a reflection on lawyer-legislator ethics February 11, 2017

Posted by Bradley in : governance , add a comment

The Florida House of Representatives features on its website quite prominently a Public Guide to Florida House of Representatives Rules Changes with a subtitle of “Ushering a New Level of Transparency and Accountability Revolutionizing State Government. Most of the document relates to lobbying- for example legislators should not fly on private planes owned by lobbyists or corporations that employ lobbyists (and Rule 15.3 of the House Rules specifies that the ban applies even were the representative to pay for the flight). But perhaps there are some other issues they might concentrate on.
Rule 15.2 of the House Rules states:

The Integrity of the House. A member shall respect and comply with the law and shall perform at all times in a manner that promotes public confidence in the integrity and independence of the House and of the Legislature. Each member shall perform at all times in a manner that promotes a professional environment in the House, which shall be free from unlawful employment discrimination.

I am not sure how promoting legislation that could be seen as conducive to a Representative’s personal financial interests as a personal injury lawyer, especially legislation that is drafted so ambiguously as to open up a wealth of litigation possibilities, can possibly be seen as promoting public confidence in the integrity of the House. But perhaps that’s just me.

proposed florida abortion statute February 10, 2017

Posted by Bradley in : regulation , add a comment

The Miami Herald reported on a move in the Florida Legislature by Rep. Erin Grall, R-Vero Beach, a personal injury lawyer with the Graill Law Group in Vero Beach, Florida in an article with the title: “If you regret having abortion, proposed law would let you sue the doctor years later“. The Bill allows a woman “who suffers emotional distress as a result of a physician’s failure to obtain informed consent” (under the statute) to sue the physician for damages up to ten years after the procedure, even where there is a signed informed consent form. The buill says the claim would not be for medical malpractice and the rules on medical malpractice would not apply.
If this is a good idea, which I doubt, why not apply the same idea to other medical procedures that seem to be the source of emotional distress and other psychological problems and where people are induced into undergoing the procedures by unrealistic hopes about the difference to their lives that the procedures will make? Here I am thinking, of course, of cosmetic surgery. Everywhere you go in South Florida you see encouragements to undergo cosmetic procedures. Even when I go to the dentist I am faced with posters advertising fillers. And we know that cosmetic surgery can be expensive and lead to non-financial distress and disappointment. In the cosmetic surgery context informed consent is undermined by pervasive advertising of an endless range of products from skin creams to botox as well as adverts for surgery. So why is that not a priority for Florida lawmakers?

brexit futures: uk as friend to human rights abusers January 28, 2017

Posted by Bradley in : fundamental rights , 1 comment so far

Theresa May’s friendly visits with Donald Trump as he orders extreme vetting for people entering the US from majority Muslim countries (but not Saudi Arabia), and Recep ErdoÄŸan (apparently she did mention human rights) raise some real questions about what Britain’s future will look like outside the EU. This is what Global Britain is going to look like?

girls doubt that women can be brilliant January 26, 2017

Posted by Bradley in : gender , 1 comment so far

It happens at age 6, according to a recent study. Thinking about the brilliant women I have known in my life, and know, I am devastated (but not really surprised). When I was in my 20s the future world I imagined for women was so much better than the one I now live in.