COVID-19 Pandemic-Related Arguments in Polish Civil Litigation

The aim of this paper is to analyse the legal record on civil litigation from mid-March 2020 to mid-July 2021 and examine COVID-19 pandemic-related arguments in a sample of litigated cases heard in Polish courts, more precisely 41 cases. In an attempt to establish the number and types of court cases in which such arguments have been raised, the population of individual case records was accessed electronically from the Ordinary Courts Judgments Portal (Pol. Portal Orzeczeń Sądów Powszechnych). The analysed research material consists of texts of written justifications published along with rulings of courts of the first instance in the Portal, except for texts regarding criminal cases and widely understood labour cases. This paper refers to certain theoretical aspects of argument and argumentation. Then, it sheds light on the use of COVID-19 pandemic-related arguments by the parties involved in litigation—as reported by the courts in written justifications—considering, amongst others, whether those arguments were found convincing by the courts. Based on a survey of relevant cases, an attempt was made to identify categories of COVID-19 pandemic-related arguments of the parties involved in litigation, raised in their legal submissions. Also a look into the tendencies in this regard was taken to see whether any patterns emerge and it is possible (or not) to discern different trends in the analysed phenomena. The point of the analysis in this article is both descriptive and normative.

Análise Econômica do Direito, Incidente de Resolução de Demandas Repetitivas e Juizados Especiais

The Code of Civil Procedure (CPC, in portuguese, Código de Processo Civil) of 2015 gave greater prominence to precedents as a mechanism for rationalizing jurisdictional activity. In a context of expansion of civil litigation, the aim of this article is to assess, adopting the Law and Economics (AED, in portuguese, Análise Econômica do Direito) theoretical framework, the role of judicial precedents in the search for a more complete, stable and isonomic system. In this sense, the repetitive demands resolution incident (IRDR, in portuguese, Incidente de Resolução de Demandas Repetitivas) stands out as an institute that aims to propose a solution to mass demands based on the same question of law. The hypothesis that arises is that the effectiveness of the jurisdictional provision of the special courts is subject to substantial improvement with the application of the IRDR, passing through the analysis regarding the constitutionality of such an incident, and, if constitutional, what would be the proper procedure, since the CPC essentially turns to the incident in the courts. The methodology is based on the theoretical references of AED, conforming to precedents, IRDR and special courts, in line with the statistical analysis provided by National Council of Justice (CNJ, in portuguese, Conselho Nacional de Justiça). The results achieved demonstrate that special courts respond for significant number of new processes that enter the Judiciary, following the primacy of access to justice, with the model developed by Mendes and Romano Neto being a promising solution to the application of the IRDR in such jurisdictional sphere.

Statistical Evidence and the Problem of Specification

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities.

Judicial recusal in New Zealand: Looking to procedure as the principled way forward

<p>The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of the events and, more importantly, whether measures need to be taken to prevent another such occurrence. This paper takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the paper's findings, the author revisits the Saxmere saga to first posit that a lack of procedural safeguards may have contributed to the saga and two, to suggest that had the procedural safeguards proposed by this paper been in place, the controversy could have been mitigated, if not avoided.</p>

Judicial recusal in New Zealand: Looking to procedure as the principled way forward

<p>The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of the events and, more importantly, whether measures need to be taken to prevent another such occurrence. This paper takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the paper's findings, the author revisits the Saxmere saga to first posit that a lack of procedural safeguards may have contributed to the saga and two, to suggest that had the procedural safeguards proposed by this paper been in place, the controversy could have been mitigated, if not avoided.</p>

The Cultural Defence

This chapter considers how arguments based on cultural traditions and customary law influence the reasoning of judges in various jurisdictions through the use of cultural defences. A survey of cases reveals that judges consistently refuse to allow the introduction of evidence concerning litigants’ cultural backgrounds in legal proceedings. As explained here, the prescriptive version of cultural relativism calls attention to the context in which individuals act under cultural imperatives. It is the underlying theory that justifies culturally specific notions of reasonableness in criminal law and civil litigation. Although the defence is sometimes understood as limited to criminal cases, the chapter demonstrates how cultural factors also figure in cases involving exemptions and calculating damages in civil litigation. The chapter identifies several types of culture conflict, considers a theoretical framework for analysing cultural defences, and discusses practical difficulties associated with the implementation of the cultural defence policy. Anthropologists are often asked to serve as expert witnesses in these cases. How their involvement in the justice system may affect their professional reputations is also assessed. The final section offers suggestions as to likely new areas where cultural defences will be raised, such as military tribunals and educational systems. While proponents of the strategy contend that the courtroom door should be open to cultural argumentation, this does not mean the cultural factors should necessarily influence the disposition of the cases, particularly if the customs central to the dispute involve irreparable harm.

Soft Tissue Filler Therapy and Informed Consent–A Canadian Review

Soft Tissue Filler (STF) Therapy for cosmetic facial rejuvenation is associated with known complications. The manifestation of these known complications can lead to patients commencing civil litigation actions or making complaints to provincial regulatory authorities and alleging that the practitioner failed to obtain the patient’s informed consent to the therapy. Data provided by the Canadian Medical Protective Association (CMPA) on medical-legal cases arising from the provision of STF therapy between 2005 and 2019 are presented. Select reported case law decisions from Canadian courts and regulatory bodies addressing the concept of informed consent are reviewed. Insights about the risk factors pertaining to the process of obtaining informed consent for STF therapy are presented to increase an understanding of the elements of communication and documentation needed to ensure patients are aware of the consequences of this treatment.