DOCSLIB.ORG

Supreme Court of Ireland Decisions

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Supreme Court of Ireland Decisions S6 [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] Supreme Court of Ireland Decisions You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cromane Foods Ltd & anor -v- Minister for Agriculture, Fisheries & Food & ors [2016] IESC 6 (22 February 2016) URL: http://www.bailii.org/ie/cases/IESC/2016/S6.html Cite as: [2016] IESC 6 [New search] [Help] Judgment Title: Cromane Foods Limited & anor -v- Minister for Agriculture, Fisheries & Food & ors Neutral Citation: [2016] IESC 6 Supreme Court Record Number: 307/2013 High Court Record Number: 2009 1374 P Date of Delivery: 22/02/2016 Court: Supreme Court Composition of Court: Clarke J., MacMenamin J., Laffoy J., Dunne J., Charleton J. Judgment by: Charleton J. Status: Approved Result: Appeal allowed Details: Dissenting judgment by Judge Clarke. Judgments Link to Concurring Dissenting by Judgment MacMenamin Link Dunne J. J. Charleton J. Link MacMenamin J., Dunne J. Clarke J. Link Laffoy J. An Chúirt Uachtarach The Supreme Court Record number: 2009/1374P Appeal number: 307/2013 Clarke J MacMenamin J Dunne J Laffoy J Charleton J Between Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited Plaintiffs/Respondents and The Minister for Agriculture, Fisheries and Food, Ireland and The Attorney General Defendants/Appellants Judgment of Mr. Justice John MacMenamin dated the 22nd day of February, 2016 1. The judgment appealed against raises rather deep questions. The issues raised relate both to the theory and practice of the concept known as “operational negligence”. While I admire the elegance with which the High Court judgment seeks to address the evidence and the law, I would respectfully disagree with its conclusion. In fact, the circumstances in this case provide an apt case-history of the problems which can actually arise with the concept. I would uphold the appeal in regard to legitimate expectation, and concur with my colleagues, Clarke J., Dunne J. and Charleton J., in so concluding. Together with Dunne J. and Charleton J., I would also uphold the appeal on the operational negligence issue for reasons I now set out. 2. The unavoidable fact is that strong policy considerations arise in this appeal. One cannot deny that legitimate concerns are consistently expressed on how, in law, to identify means of redress for wrongful actions by the executive which detrimentally effect private individuals. Clarke J. eloquently makes the case for the concept of operational negligence in his judgment. No one would envisage a return to the era which preceded Byrne v. Ireland [1972] I.R. 241, where the State was, effectively, immune from suit. But what is necessary, is that changes in the law of negligence, and reformulations of the law on State liability, should be carefully and incrementally approached, with a clear view as to their long term consequence. There is always a concern that radical alterations in the law emerge within the narrow confines of one case which have unforeseen consequences. In some instances, such as the discovery of the snail in a bottle of ginger beer in the Wellmeadow Café in the Scottish town of Paisley, the consequences are, generally, for the public good (Donoghue v. Stevenson [1932] UKHL 100, [1932] AC 562 ). But, even in this instance, it is doubtful whether either the majority or minority of the House of Lords who deliberated on the appeal could have foreseen the exponential expansion in the law of negligence which followed. Introduction 3. In fact, an unguarded inception of State liability for operational negligence, both in its conception, and its means of application, might potentially raise even more profound issues than Donoghue v. Stevenson. It requires little imagination to imagine circumstances where the threat, either in prospect, or in retrospect, of an operational negligence claim, might be such as to stifle any administrative action in an area of potential controversy. There is undoubtedly, a strong public interest in ensuring that a proper balance is struck between private and public rights and duties. However, there is perhaps an even stronger public interest in ensuring government actually functions for the general public good, and that administrators do not consider themselves impeded from making any decision for fear of being immersed in a morass of litigation. It is not hard to conceive of operational negligence proceedings being brought in circumstances where millions (or perhaps billions) of Euro might be at stake as a consequence of an executive or administrative decision or action. There is no doubt that the courts and the law will be much occupied in the foreseeable future with the need for protecting the individual against wrongful executive decision and action. Such developments may come from either national or European courts or legislators. But, what is fundamentally necessary, insofar as possible, is that clear lines of demarcation and principle are identified in developing the law. Further, what is of prime importance is to ensure that a judiciary does not become a form of surrogate unelected government, vesting itself with the power to second-guess prima facie lawful government actions in areas of discretion which do not raise questions of vires. These are not small considerations. Conceptual Difficulties of Operational Negligence 4. Even on first impression, the appeal before us illustrates the inherent risks in engaging in an “operational negligence” analysis of the decisions of a public authority which, on the face of things, was acting intra vires. How should a court of law, with all the luxury of hindsight, engage in this form of critique of the actions or inactions of the appellant Minister and his department? Such a process, as here, necessarily involves a post hoc analysis of a series of omissions to act. As we will see, time-span of the tort is unclear; arguably the Minister’s failure to put himself in a position to comply with E.U. law, could stretch back over a decade prior to 2008, the year in which, I infer, the judgment holds the tort was actually committed. By 2008, a series of more proximate decisions, which are referred to later, were ones in which there were, simply a series of invidious choices between broad public and private interests. One might ask, how well equipped are the courts to engage in such a retrospective scrutiny, even before going on to consider how long such an “inquiry” (I use the word advisedly), might take in other instances. It is not hard to think of rather deeper and broader issues where the stakes are higher even than those considered here. 5. The High Court ultimately held that the tort here was committed in the year 2008. That is what the judgment says at a number of points. But taking that essential point as established, what was actually put into the equation was not one isolated act, wherein one might identify classical indicia of negligence, but, rather, something very much broader. The judgment necessarily contains a description of the complex background to what occurred pre 2008. Is the omission to act, over these previous 8 or 10 years, itself a tort of operational negligence? At points, the judgment seems to suggest that it is. It is said that the Minister, over a period of years, failed to carry out appropriate surveys on Castlemaine Harbour, so that baseline statistics would be available, so as to comply with E.U. environmental law. It is very hard to avoid the inference that this is all to be encompassed as part of the tort. Yet, elsewhere, the actual elements of the tort appear to be ministerial and executive actions, carried out within 2008, and all of which were, on their face, lawful, carried through on foot of statutory instruments, and intended to ensure that the State was, eventually, compliant with E.U. law. How then is a court to reconcile the paradox that, as a matter of public law, the impugned acts or omissions must be seen as lawful; but as a matter of private law they were not? How is one to assess the question of causation? 6. Some of these considerations underlie the objections which are to be found, both in academic and legal commentary, on the common law courts’ embarkation on a journey of uncertain destination, (and uncertain staging posts), beginning with Anns v. Merton L.B.C. [1978] AC 728. If a court is determining whether ‘operational negligence’ occurred, how does it balance the needs (and duties) of the State, responsible for the public interest, against the private interests of individuals? The common law recognises that clear distinctions (and consequences) derive from the difference between wrongful acts, (feasance), and omissions to act (non-feasance). This is a distinction which, although criticised, may, at least, be defensible at the level of principle on constitutional, political, moral, and economic grounds. Lest there be misunderstanding, I do not have the slightest concern that the law should continue to develop, as it must, but it is necessary that the judges themselves be cautious - as we urge others to be. 7. The concept carries with it, too, an inherent risk of elision between ‘omission’, often incapable of giving rise to legal liability, and an affirmative duty, which does. The case law, as it developed, has addressed a wide range of public and private concerns. It is difficult to see a consistent pattern. At times, the courts have, laudably and understandably, adopted a victim-oriented approach, whereby public funds may serve a welfare or protection purpose; elsewhere judges have adopted a more robust approach, taking account of the potential allocation of public funds, against a backdrop of concerns, expressed both in Ireland and elsewhere, as to trenching on the constitutional domain of the executive.
Load more

Recommended publications
  • Tort Reform and Jury Instructions Charles W
    University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 2015 Tort Reform and Jury Instructions Charles W. Adams University of Tulsa College of Law Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Civil Procedure Commons, and the Torts Commons This article originally appeared at volume 86, page 821 of the Oklahoma Bar Journal. Recommended Citation 86 Okla. B.J. 821 (2015). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. SCHOLARLY ARTICLE Tort Reform and Jury Instructions By Charles W. Adams his article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil TOUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruc- tion to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconom- ic losses for personal injuries. The Civil OUJI Committee determined that of damages awards or either alternative for the both statutes raised possible constitutional $350,000 cap on noneconomic losses that the issues, and so, decided to flag these issues in its Civil OUJI Committee had proposed.
    [Show full text]
  • Elements of Negligence Under the Tort of Negligence, There Are Four Elements a Plaintiff Must Establish to Succeed in Holding a Defendant Liable
    Elements of Negligence Under the tort of negligence, there are four elements a plaintiff must establish to succeed in holding a defendant liable. The Court of Appeals of Georgia outlined the elements for a prima facie case of negligence in Johnson v. American National Red Cross as follows: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” Johnson, 569 S.E.2d 242, 247 (Ga. App. 2002). Under the first element, a legal duty to a standard of due care, the plaintiff must prove the defendant had a duty to conform to a standard of conduct for protection of the plaintiff against an unreasonable risk of injury. The duty of care will be determined by the applicable standard of care and several factors can heighten the standard of care depending upon the relationship between the parties, whether the plaintiff was foreseeable, the profession of the defendant, etc. For example, the Red Cross has a duty, when supplying blood donations to hospitals, to make its best efforts to ensure blood supplied is not tainted with any transferable viruses or diseases, such as an undetectable rare strain of HIV. A breach of the duty of care occurs when the defendant’s actions do not meet the required level of applicable standard of care due to the plaintiff. Whether a breach of the duty of the applicable standard of care occurs is a question for the trier of fact.
    [Show full text]
  • Private Law and Public Law
    Private Law and Public Law F.J.M. Feldbrugge Emeritus Professor of East European Law University of Leiden, Faculty of Law We talk about private law and public law as if everybody knew what was meant when these words are being used about law. This probably holds true for lawyers and even law students, but not for the general population. Most people will have some sort of idea about labor law, or bankruptcy law, but the distinction between private law and public law, considered as most fundamental by most lawyers, means next to nothing to the man or woman in the street. Is the problem perhaps avoidable, do we actually need the public/ private law distinction? If we do not, the matter could be left to those inclined to such intellectual pastimes. Unfortunately, the distinction between public and private law entails practical consequences, at least in continental legal systems, so it can- not be referred to the convenient and already very large file of problems that do not need a solution. To start at the simplest and most practical level: our law happens to be divided into two boxes; some of it has been put into the box marked “public law”, and the rest into the box marked “private law”, and the contents of these two boxes are treated somewhat differently. For the law student and the humble practitioner this may be enough to know. But the more discerning lawyer would of course like to know why some law goes into one box and some into the other. Two thousand years of jurisprudence—because the distinction goes back at least as far as the Romans—have produced a vast body of literature containing answers to this question.
    [Show full text]
  • The Restitution Revival and the Ghosts of Equity
    The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law.
    [Show full text]
  • Compatibility of Sharia Law with the European Convention on Human Rights: Can States Parties to the Convention Be Signatories to the “Cairo Declaration”?
    http://assembly.coe.int Doc. 14787 03 January 2019 Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories to the “Cairo Declaration”? Report1 Committee on Legal Affairs and Human Rights Rapporteur: Mr Antonio GUTIÉRREZ, Spain, Socialists, Democrats and Greens Group Summary The Committee on Legal Affairs and Human Rights considers that the 1990 Cairo Declaration on Human Rights in Islam, whilst not legally binding, has symbolic value and political significance in terms of human rights policy under Islam. However, it fails to reconcile Islam with universal human rights, especially insofar as it considers Sharia law as its sole source of reference and does not recognise certain rights. The committee is therefore concerned that three Council of Europe member States – Albania, Azerbaijan and Turkey – are signatories to the 1990 Cairo Declaration, as are Jordan, Kyrgyzstan, Morocco and Palestine, whose parliaments enjoy partner for democracy status with the Parliamentary Assembly. The committee considers that where human rights are concerned there is no room for religious or cultural exceptions. Member States and partners for democracy should bolster religious pluralism, tolerance and equal rights of all. Bridges of understanding between Sharia law and the European Convention on Human Rights should be created, on the prior condition of acceptance that the Convention is an international instrument binding on all States Parties. This report also addresses the actual application of Sharia principles in certain member States and makes country-specific recommendations. 1. Reference to committee: Doc. 13965, Reference 4188 of 4 March 2016. F - 67075 Strasbourg Cedex | [email protected] | Tel: +33 3 88 41 2000 | assembly.coe.int Doc.
    [Show full text]
  • The Problem of Delay in the Contract Formation Process: a Comparative Study of Contract Law Mikio Yamaguchi T
    Cornell International Law Journal Volume 37 Article 3 Issue 2 2004 The rP oblem of Delay in the Contract Formation Process: A Comparative Study of Contract Law Mikio Yamaguchi Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Yamaguchi, Mikio (2004) "The rP oblem of Delay in the Contract Formation Process: A Comparative Study of Contract Law," Cornell International Law Journal: Vol. 37: Iss. 2, Article 3. Available at: http://scholarship.law.cornell.edu/cilj/vol37/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. The Problem of Delay in the Contract Formation Process: A Comparative Study of Contract Law Mikio Yamaguchi T Introduction ..................................................... 358 I. Law Applicable to the Problem of Delay in the United States .................................................... 3 6 1 A. Structure of Applicable Law ........................... 361 B. Priority of the Applicable Law ........................ 362 II. Comparative Study of the Contract Formation Process ..... 363 A. Legal Structure of the Contract Formation Process ..... 363 1. Structure of the Contract Formation Process Under the Comm on Law ................................. 363 2. Structure of the Contract Formation Process from a Comparative Perspective ........................... 364 B. A Major Function of the Common Law in the Contract Form ation Process .................................... 365 1. Common Law Rules and Principles That Reflect the Balancing Function ................................ 365 2. Balancing Function from a Comparative Perspective .......................................
    [Show full text]
  • Robert P Merges What Kind of Rights Are Intellectual Property Rights?
    Robert P Merges What Kind of Rights Are Intellectual Property Rights? Forthcoming in Rochelle C Dreyfuss & Justine Pila (eds), The Oxford Handbook of Intellectual Property Law © RP Merges 2017 Table of Contents 1. Intellectual Property as a Right 1.1 Intellectual Property Rights Are Property Rights 1.2 The Basic Features of Intellectual Property as Property 1.2.1 The Right to Control Uses 1.2.2 The Right to Transfer 1.2.3 The Special Case of Waiver 1.3 Limitations on Intellectual Property Rights 2. What Kind of Rights? Hohfeld and Intellectual Property 2.1 Claim Right/Duty 2.2 Privilege/No Claim 2.3 Power/Liability 2.4 Immunity/Disability 2.5 Hohfeld: Conclusion 3. Obstacles to Conceiving Intellectual Property as Property 3.1 Intellectual Property Acquisition and Misunderstandings About What it Means to be a Right 3.2 What, No Automatic Injunction? That’s Not Property! 3.3 Why Intellectual Property Rights Are Not ‘Regulation’ 3.3.2 The Second Sense of ‘Regulation’ 3.3.3 Freedom and Permission 3.3.4 Freedoms in Historical Perspective 3.4 Intellectual Property Rights as Property Rights: Summing Up 4. Problems With Conceiving Intellectual Property as Property 4.1 Group Ownership 4.2 Intellectual Property As Constitutional Property: The Takings Problem 5. Conclusion 1. Intellectual Property Rights as Rights Electronic copy available at: https://ssrn.com/abstract=2959073 The phrase is common enough that it rolls off the tongue: intellectual property rights. It even has a well-known acronym, ‘IPRs.’1 But are they really rights? And if so, what kind of rights? Most importantly, what difference does it make that they are rights – what practical import does this carry? These are the questions I take up here.
    [Show full text]
  • Omissions and Criminal Liability
    OMISSIONS AND CRIMINAL LIABILITY J. PAUL McCUTCHEON INTRODUCTION The question of liability for omissions raises issues of profound significance for the criminal law. While discussion thereof might be predominently theoretical - in practice prosecutors are likely to encounter few omissions cases - it is nevertheless impOltant as it embraces consideration of the proper scope of the criminal law, its function in the prevention of harm and the en­ couragement of socially beneficial conduct and the practical effectiveness and limits of the criminal sanction. Although it has not been seriously considered by Irish courts the issue has attracted the attention of courts and jurists in other jurisdictions. I The Anglo-American tradition is one ofreluctance to penalise omissions; to draw on the time honoured example no offence is committed by the able-bodied adult who watches an infant drown in a shallow pool. That gruesome hypothetical is happily improbable, but the general proposition is substantiated by the much-cited decision in People v. BeardsleyZ where it was held that the accused was not criminally answerable for the death from drug use of his 'weekend mistress' in circumstances where he failed to take the necessary, and not unduly onerous, steps to save her life. Likewise, the law does not impose a general duty to rescue those who are in peril nor is there a duty to warn a person of impending danger.3 A passive bystander or witness is not answerable for his failure to act, even where the harm caused is the result of criminal conduct.4 This general reluctance is evident in the manner in which criminal offences are defined.
    [Show full text]
  • Introduction to Law and Legal Reasoning Law Is
    CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150.
    [Show full text]
  • Private Law 225 Private Law 226 an ACT Private Law
    A86 PRIVATE LAW 225—AUG. 28, 1951 [65 STAT. Private Law 225 CHAPTER 354 August 28, 1951 AN ACT [S. 630] To suspend until August 15, 1951, the application of certain Federal laws with respect to an attorney employed by the Senate Committee on Labor and Public Welfare. Be it enacted hy the Senate and House of Representatives of the Eay R. Murdock. United States of America in Congress assembled^ That service or employment of Ray R. Murdock as an attorney on a temporary basis prior to August 15,1951, to assist the Senate Committee on Labor and Public Welfare or any of its duly authorized subcommittees shall not be considered as service or employment bringing such person within the provisions of sections 281, 283, or 284, of title 18 of the United States 62 Stat. 697. Code, or of any other Federal law imposing restrictions, requirements, or penalties in relation to the employment of persons, the performance of service, or the payment or receipt of compensation in connection with any claim, proceeding, or matter now pending in court and involving the United States. Approved August 28, 1951. Private Law 226 CHAPTER 358 AN ACT August 29, 1951 [S. 100] To record the lawful admission for permanent residence of certain aliens. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That, for the pur­ poses of the immigration and naturalization laws, Maria Luisa Ajuria Lazpita, Maria Isabel Albizuri Aguirre, Maria Ignacia Arregui Urbieta, Aurora Eduarda Jauregui Gorozarri, Maria Begona Landa- buru Azcue, Josef a Martinez Viqueira, Elvira Echevarria Goicoechea, Pastora Inchausti Susarragui, Jesusa Unzala Eguidazu, Gaudencia Fernandez Carton, Casilda Gomez Martinez, Victoriana Egues Saizar, Maria Blanca Ganchegui Alcorta, Benita Justa Izaguirre Zabalegui, and Teodora Jimenez Buey shall be held and considered to have been lawfully admitted to the United States for permanent residence as of the date of the enactment of this Act, upon payment of the required Quota deductions.
    [Show full text]
  • The Neutral Reportage Privilege in Theory and Practice
    UCLA UCLA Entertainment Law Review Title When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Permalink https://escholarship.org/uc/item/0d65t53k Journal UCLA Entertainment Law Review, 17(1) ISSN 1073-2896 Author Laidman, Dan Publication Date 2010 DOI 10.5070/LR8171027133 Peer reviewed eScholarship.org Powered by the California Digital Library University of California When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Dan Laidman* I. INTRODUCTION It is an angry time in American politics. Members of Congress have disputed the President's citizenship and accused him of promoting "Nazi" policies,' an ex-President has called a Congressman racist,2 and a member of the House of Representatives publicly questioned the sanity of a constituent who compared the President to Adolph Hitler.3 Traditional media outlets have chronicled the comments and then countless websites have republished them, leading some to find a causal connection between the explosions in new media and political rhetoric.' On the local level, municipal politics continue to generate fierce disputes which often lead to allegations of slander involving public officials.5 Only now, with the collapse of the * J.D., UCLA School of Law, 2010. Many thanks to Professor Gia Lee at UCLA Law School and to Joseph Doherty, director of the school's Empirical Research Group. 1 See Andie Coller, G.O.P. 'Cranks' Dominating Debate, POLITICO, Sept. 10, 2009, http://www.politico.com/news/stories/0909/27015.html. 2 See Jeff Zeleny & Jim Rutenberg, White House is Sitting Out Race Debate, N.Y.
    [Show full text]
  • “Clean Hands” Doctrine
    Announcing the “Clean Hands” Doctrine T. Leigh Anenson, J.D., LL.M, Ph.D.* This Article offers an analysis of the “clean hands” doctrine (unclean hands), a defense that traditionally bars the equitable relief otherwise available in litigation. The doctrine spans every conceivable controversy and effectively eliminates rights. A number of state and federal courts no longer restrict unclean hands to equitable remedies or preserve the substantive version of the defense. It has also been assimilated into statutory law. The defense is additionally reproducing and multiplying into more distinctive doctrines, thus magnifying its impact. Despite its approval in the courts, the equitable defense of unclean hands has been largely disregarded or simply disparaged since the last century. Prior research on unclean hands divided the defense into topical areas of the law. Consistent with this approach, the conclusion reached was that it lacked cohesion and shared properties. This study sees things differently. It offers a common language to help avoid compartmentalization along with a unified framework to provide a more precise way of understanding the defense. Advancing an overarching theory and structure of the defense should better clarify not only when the doctrine should be allowed, but also why it may be applied differently in different circumstances. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1829 I. PHILOSOPHY OF EQUITY AND UNCLEAN HANDS ...................... 1837 * Copyright © 2018 T. Leigh Anenson. Professor of Business Law, University of Maryland; Associate Director, Center for the Study of Business Ethics, Regulation, and Crime; Of Counsel, Reminger Co., L.P.A; [email protected]. Thanks to the participants in the Discussion Group on the Law of Equity at the 2017 Southeastern Association of Law Schools Annual Conference, the 2017 International Academy of Legal Studies in Business Annual Conference, and the 2018 Pacific Southwest Academy of Legal Studies in Business Annual Conference.
    [Show full text]