• Selected
• Entire List

Abstract:
The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise questions as to who will decide whether an enforceable agreement to arbitrate has been made and what standard shall be applied in making that determination. This article explores the arbitrability question in the wide variety of settings in which it occurs, including post-contract disputes, successor parties, and the separability doctrine which focuses on challenges to the entire contract containing the arbitration provision. Also explored are the differing standards used to determine whether a substantive dispute is arbitrable on the merits and whether procedural preconditions to arbitration have been satisfied. This article identifies an expectation model as the premise upon which the Supreme Court's arbitrability principles have been based, and argues that it appropriately focuses on logical inferences of the parties' intent arising from their agreement as the basis for resolving arbitrability disputes.
Reprinted with the permission of the Baylor Law Review.

Arbitrate, Arbitration, Arbitrability, Agreement to arbitrate, Arbitration agreement, Enforcement, Enforceability, Enforceable, Post-contract dispute, Procedural preconditions, Expectation, Contract, Successor

Abstract:
Since it came into force in September, 1953, the European Convention on Human Rights has served as a reflection of Europe's movement toward the establishment of common standards of individual human rights and freedoms. The forty-five countries that are currently signatories to the Convention are subject to the jurisdiction of the European Court of Human Rights (ECHR) which was established in 1959 as a mechanism to interpret and enforce the obligations created by the Convention. Although the Convention contains no explicit reference to a right to remain silent, and despite the differing legal systems of the contracting states, the Court has been steadily developing a jurisprudence of self-incrimination from the Convention's Article 6 right to a fair hearing. This Article traces the progress of the Court in creating meaningful protections for the right to silence in the face of state efforts to compel the production of incriminating evidence from individuals suspected of or charged with criminal offenses. The Court's decisions have produced a carefully balanced doctrinal framework that respects the individual's choice to remain silent without creating an absolute self-incrimination privilege.

European Convention on Human Rights, European Court of Human Rights, ECHR, European Union, EU, Article 6, criminal procedure, criminal offense, post-arrest, silence, right to remain silent, right of silence, incrimination, self-incrimination, privilege, evidence

Abstract:
In the contemporary American workplace, benefits are a critical a component of overall compensation. American workers look to their employers for such non-salary items as retirement programs, health insurance, sick pay, and paid vacations. However, the costs of such benefits have been rising rapidly and employers have sought ways to avoid paying them. Increasingly, employers have been using various techniques to create a pool of contingent workers who, even if they work side-by-side with the employer's traditional employees, nevertheless receive none of the benefits made available to members of the regular workforce. These contingent employee arrangements include utilizing contract workers, leased staff, and temporary workers hired from agencies such as Manpower. In some instances courts have found that employer contingent workforce arrangements have failed to meet the legal hurdles required for exemption from the obligation to provide workplace benefits, but these decisions do no more than to guide employers in how to properly structure workplace relationships in order to meet their objectives. This article explores the limits of the major court decisions that have restricted the ability of employers to exclude contingent workers from access to benefits made available to regular employees and suggests legislative approaches that should be pursued.

benefits, compensation, retirement, health insurance, sick pay, sick leave, vacation, contingent workers, contingent workforce, contract workers, leased staff, temporary workers

Abstract:
In response to problems encountered in the administration of justice in Northern Ireland, the British government issued the Criminal Evidence (Northern Ireland) Order 1988 changing the character of how the right to silence and privilege against self-incrimination would apply in criminal justice proceedings occurring within Northern Ireland. In general terms, the Order provided that suspects under interrogation and criminal defendants at trial would be subject to adverse inferences if they failed to answer police questions or refused to testify in court. The Order included some qualifications on when and how adverse inferences would be used, and provided that such use would not be permitted unless an appropriate warning was administered in advance. In 1994 the Criminal Justice and Public Order Act extended this system to England and Wales. In the years following issuance of the Order and passage of the subsequent legislation, British courts and the European Court of Human Rights have upheld the legitimacy of the revised right to silence system while clarifying some of its specific provisions. In addition, research efforts have been undertaken to assess the impact of the Order and legislation on the circumstances and frequency of assertions of the right to silence. This article reviews how court decisions have dealt with the Order and legislation as well as how the new approach to the right to silence has affected the administration of criminal justice over the course of the first decade of the new system.

Reprinted with the permission of the Columbia Human Rights Law Review.

Confession, Adverse inferences, Silence, Right to Silence, Great Britain, British, Northern Ireland, Privilege, Self-incrimination, Criminal Justice, Criminal Justice and Public Order Act, European Court of Human Rights, Miranda, Fifth Amendment

Abstract:
The police interrogation process has been a subject of controversy in both Great Britain and the United States. The debate has focused on how to regulate the police and thereby balance the public interest in crime control against the individual interest in freedom from state coercion. In the U.S regulation of the police interrogation process has largely been the result of U.S. Supreme Court interpretations of the self-incrimination privilege of the Fifth Amendment of the U.S. Constitution. In contrast, in Great Britain police interrogation controls have been enacted by Parliament in the Police and Criminal Evidence Act (PACE), supplemented by a Code of Practice for the Detention, Treatment and Questioning of Persons by the Police developed by the British Home Office. This article provides an overview of Great Britain's experience with legislating confession law controls by examining the content and impact of both PACE and the Home Office Interrogation Code of Practice and concludes by suggesting that the statutory and regulatory framework of the British experience can serve as a model for similar reform in the United States.

Reprinted with the permission of The University of Michigan Journal of Law Reform.

police interrogation, Miranda, constitutional rights, crime control, coercion, confession, coerced confession, PACE, Police and Criminal Evidence Act, Interrogation Code, waiver of rights, right to counsel, Great Britain

Abstract:
Increasingly, American workers rely upon employers to provide employee benefit programs that include critical health insurance and retirement savings plans. However, employers are finding that providing benefits is a costly undertaking. As a result an increasing number of employers are making use of alternative workforce systems. These involve supplementing a core of full-time workers with contingent employees for whom no commitments are made other than payment for services rendered. Such contingent workers have no expectation of indefinite or continuous employment, and are generally excluded from whatever benefit programs the company may provide.

The increasing use of two-tier employment systems of traditional and contingent labor is fraught with danger. A lack of care in the design of the workplace environment can easily produce a personnel system that fails to incorporate the elements required to avoid the creation of an employer-employee relationship. If discovered, the result can be substantial financial liability. Even if properly structured, there are serious questions that arise from the successful creation of a two-tier personnel system that satisfies existing legal requirements. In such cases, the end product is to create a disfavored second-tier group of service providers who lack the job protections and benefits that are among the central goals of most workers.

This article addresses both the legal and public policy implications of two-tier employment systems that deny some workers the right to participate in employee benefit programs including the use of independent contractor agreements and benefit plan eligibility criteria to restrict benefit program coverage. It concludes with recommendations for how the legal system should respond to this problem. There is an obvious need to be certain that exclusion criteria are clearly stated and do not make artificial distinctions between those extended coverage and those excluded. While there is justification to separate out true independent contractors and supplied labor who have access to benefits from other sources, arbitrary categorizations that lack any real underlying distinctions between worker groups should not be permitted. Artificial benefit program eligibility standards should not remain a device employers are free to use in order to frustrate a worker's right to participate in otherwise available workplace benefit programs.

Employee, Worker, Benefit program, Health insurance, Retirement, Fulltime employee, Contingent employee, Two-tier employment system, Independent contractor, Continuous employment

Abstract:
This article provides an analysis of the procedural aspects of the right to silence falling within Art. 6 of the European Convention on Human Rights. The author examines the jurisprudence of the European Court of Human Rights under the following areas: overview, appearance to answer questions, a demand for documents, false responses, warnings and adverse inferences. The subject is discussed at investigation stage, just prior to and during civil and criminal proceedings. The piece concludes with summaries of the jurisprudence in these varying circumstances.

Posted with permission of the European Human Rights Law Review, Thomson/Sweet & Maxwell Ltd.

Adverse inferences, Cautions, Criminal investigations, Documentary evidence, European Court of Human Rights, Misleading statements, Privilege against self-incrimination, Right to silence

Abstract:
This article examines the tension between mandatory self-reporting and identification statutes and the right to be free of compelled self-incrimination. The author reviews decisions addressing this issue taken by the European Court of Human Rights ('ECtHR'), the Privy Council, and the Supreme Courts of Canada and the United States. He then analyses applicable public policies and assesses the alternative approaches available to accomodate these conflicting interests.

Canada, Comparative Law, Compulsory disclosure, Privilege against self-incrimination, Right to fair trial, United States