09 July 2020

  • POMFR Book review: Anu Bradford, The Brussels Effect: how the European Union rules the world (OUP 2020)
    09 July 2020

    In the ‘Brussels Effect: how the European Union rules the world’ Bradford described how EU regulations impact standards around the world through the process of unilateral regulatory globalization. The book develops on from Bradford’s highly influential earlier article.

    Territorial extension’ is described by Scott as the practice of enabling the EU ‘to govern activities that are not centered upon the territory of the EU and to shape the focus and content of third country and international law.’ I have described ‘rule-transfer’ as ‘a means or process by which EU legal rules are adopted in third country legal orders’ and showed how EU rules move and are adopted abroad.

    There is a significant challenge in formulating EU global action in law and its effects. Many authors diverge on its precise delineation as a subject field and also as a methodological question. The EU is not a unified or homogenous global actor. This is particularly the case with respect to some of the most complex topics of global governance such as migration, data, the environment and financial services, where the EU seeks to have global effects and lead global change despite, among other things, asymmetric competence or weak institutional formulations. The precise movement of EU rules beyond borders is also highly contested as an idea across disciplines.

    Bradford’s account of the Brussels Effect is structured into three sections: I, theory, II, casestudies and III assessment as to whether it is beneficial (ch. 8) and its future (ch. 9). The casestudies traverse market competition, digital economy, consumer health and safety and the environment.

    One of the most important chapters is Ch. 1, where Bradford outlines the Evolution of the EU as a global regulatory power using the Brussels effect. The Brussels Effect is underpinned by five elements- market size, regulatory capacity, stringent standards, inelastic targets and non-divisibility. I would contend that none of this is entirely robust or irrefutably scientific- but this does not somehow detract from its force as a compelling narrative of law, politics and power. International organisations that the EU is party to or seeks to join etc and next generation trade agreements of the EU (eg with regulatory cooperation) are not carefully inbuilt into the argument. However, ultimately, Bradford’s account is deservedly famous because of the tone thereof, not accepting its crisis dimensions of EU actions or inactions or omissions or incompleteness to be dominant as its narrative.

    Arguably, the Brussels Effect has two major features, firstly, a narrative of law, politics and power which is compelling and highly accessible and secondly, as Bradford herself suggested was required, a positive narrative on the EU globally, which despite its many challenges, complex formulations, unusual institutions and shifting is arguably highly successful global power.

    In Ch. 5 as to the digital economy (ch. 5) Bradford shows how social media tech giants in the US of EU law principles, from hate speech to the GDPR. She engages in an interesting reflection albeit inconclusive reflection on why the Brussels Effect and China are a difficult fit, i.e. where China takes ostensibly much EU law e.g. GDPR or has started to acknowledge the right to be forgotten. China arguably constitutes a complex casestudy because of the place of institutions, enforcement and the complexity of its market economy as to the State.

    Ch. 8 has a thoughtful account of whether the Brussels Effect is ‘beneficial’ and engages in some important reflections on whether EU rules are protectionist. She has an interesting reply to this relying upon extensive empirical work as to EU competition enforcement, particularly where she shows how many US companies are the winners of cases where complaints are filed with the Commission (p. 243). There are rich discussions by Bradford on whether the Brussels Effect amounts to regulatory imperialism (countering the work on Zielonka), arguing how the EU’s role in climate change serves as a good benevolent example thereof. She also has an interesting taxonomy of foreign governments responses to the Brussels Effect and what can be done, focussing upon the US, using the example of age-long disputes between the EU and US before the WTO (p. 258), although it (the US) is hardly the conventional example and it remains to be seen if this is a realistic view thereof beyond the US as the EU develops more trade defence instruments and a more evolved view of a less than liberal global trading order.

    There are significant challenges ahead for the Brussels Effect written pre-COVID-19, where China (in particular in Ch. 9) and Brexit were some of the key issues raised. Will a Beijing Effect replace the Brussels effect she asks? Not yet, is her response, where China seems unlikely to become a source of global regulatory standards anytime soon, where its regulatory capacity and willingness to elevate the protection of consumers and the environment in pursuit of economic growth is not increasing at the same rate of its GDP. One of the most blind spots for EU law and the Brussels effect is arguably Brexit- and vice versa- if EU law has such reach and effects, why not just retain it? Perhaps for many this will remain a mystery of Brexit rather than the Brussels Effect- for now.

    Ultimately, it is the clarity, simplicity and novelty of expressing a contrarian view- that the crisis ridden Euro-saddled EU could be a superpower if viewed through its laws. It is noticeably cited with much praise by the former Ambassador to the EU Anthony Gardner in his new book Stars with Stripes (Palgrave, 2020).  This says a lot about the force of EU rules across the transatlantic and the nature of the power of EU laws- timidly framed- that are accepted by so many- from Bradford’s manifold examples to Facebook and foreign diplomats.

  • D.C. Circuit Strikes Down FDA’s Cigar Warnings
    09 July 2020

    By Karin F.R. Moore

    On July 7, 2020, a unanimous panel of the D.C. Circuit held that FDA violated the Tobacco Control Act (TCA) and the Administrative Procedure Act by failing to study whether the extensive health warnings required on cigars would actually lower the number of smokers in promulgating the regulation “Deeming Tobacco Products to Be Subject to the FDCA,” 81 Fed. Reg. 28,973 (May 10, 2016) (the Deeming Rule). In Cigar Association of America, et al. v. FDA, No. 18-5195 (D.C. Cir. July 7, 2020), the panel said that while the FDA did conclude that the warnings would help convey the health risks of smoking, they were required to consider how the warnings would likely affect the number of smokers, but did not do so. The panel determined that because the FDA failed to consider that question, they acted arbitrarily and capriciously.  The court did not address the First Amendment challenge to the required warnings, indicating that their “analysis begins, and ends, with the plaintiffs’ statutory claims.”

    This decision is an appeal of a 2018 ruling by the federal district court in D.C., which found that the regulation was lawful and the required health warnings on cigars did not violate the First Amendment since they are aimed at informing the public of health risks. 315 F. Supp. 3d 143 (D.D.C. 2018). On the First Amendment question, the district court applied the standard set forth in the U.S. Supreme Court’s 1985 ruling in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, and held that the warnings are factual, uncontroversial disclosures meant to disseminate information about the risks of smoking cigars, and to correct public misperceptions about the use of cigars and pipe tobacco.

    Under the TCA, which amended the Federal Food Drug and Cosmetic Act (FDCA), Congress directed the agency to establish a comprehensive regulatory scheme for tobacco, and requires the FDA to consider the impact of any tobacco regulation on smoking cessation and adoption rates. The 2016 Deeming Rule which extended the FDA’s authority over tobacco products and requires warnings statements on tobacco products, did not consider the impact of warnings on smoking cessation, according to the appeals panel. “In fact, the rule scrupulously avoids that issue, and the FDA barely even contends otherwise,” the panel said.  Indeed, the FDA acknowledged in the Deeming Rule’s Final Regulatory Impact Analysis that “[r]eliable evidence on the impacts of warning labels . . . on users of cigars, pipe tobacco, waterpipe tobacco, and [electronic nicotine delivery systems] does not, to our knowledge, exist.”

    The appeals court ultimately determined that “[b]y its terms, section 906(d)(1) [of the FDCA] required the FDA to “tak[e] into account” whether the warning requirements would affect the number of smokers.  Because the FDA declined even to consider that question, it violated section 906(d)(1) and acted arbitrarily and capriciously.”

    We will keep you informed of this case as it is remanded back to district court.

  • Effective Communication skills for Lawyers
    09 July 2020

    Communication can be defined as the process by which people share ideas, experiences, knowledge, and feelings through the transmission of symbolic messages.

    The ability to communicate well is arguably the skillset lawyers neglect the most.

    In fact, many don’t think of it as a skill at all, but something you’re either born with or not. 

    Others know they have room for improvement but the demands of practicing law make the time and effort to learn new skills seem like a luxury they can’t afford it.

    But strong communication skills are essential for lawyers. 

    In a typical day, a lawyer may deal with a surly judge, an unhappy client, and perhaps a difficult adversary. 

    No lawyer should take all of that on without the skills they need to handle difficult people and situations with poise and confidence.

    Lawyers who’ve learned how to say the right words, strike the right tone, and listen more effectively have a significant advantage over those who lack those skills, not just professionally, but in every facet of life. 

    They will likely be more influential than their peers, have happier clients and enjoy the career opportunities most lawyers will never have.

    And the good news is those good communicators are made, not born.

    Anyone can learn these skills and see dramatic improvement without having to invent the thirty-six hour day.

    Here is a few simple ways to communicate more effectively.

    1. Remember that less is more. Judges are busier than ever, and they’ve heard it all before anyway, so tell them what they really need to know, as concisely as possible, and they’ll ask questions if they want to know more.

    2. Be precise. Think before you speak. Don’t be like the attorney who had this exchange with an expert witness in court:

    Attorney:  Doctor, as a result of your examination of the plaintiff, is the young lady pregnant?
     Witness:  The young lady is pregnant–but not as a result of my examination.

    We’ve all been there and feel the lawyer’s pain. But with the right set of skills, these mistakes are easily avoided and, let’s face it – this kind of thing isn’t exactly a boon to your career.

    3. Be an active listener.Show you’re listening through posture and facial expression and playback what you’ve heard.

    4. A little empathy goes a long way. People will be less defensive and more receptive.

    5. Know your audience.
    Who are they?
    What do they know?
    What do they need to know?
    Are they friendly or hostile?
    What motivates them?

    6. Remember that most communication is non-verbal. What you have to say is of course paramount, but it’s not enough. To help your audience grasp and retain your message you must be skillful and strategic with your non-verbal communication as well.

    The short version of that is: stand up straight, speak up, and look people in the eye. Let your body language project poise and confidence, not fear and uncertainty.

    An attorney’s communication style-not just what he or she says, but how he or she says it-can affect the outcome of a transaction.

    7.  Look professional. You don’t have to dress like a millionaire but at least retire that suit you bought during the Kennedy administration. People judge you by your appearance more than you may think.

    8. Learn some new communication skills and then work on them as if your professional success depends on it.  Go to a communication skills workshop, be brave and watch yourself on video and, above all, practice, practice, and then practice some more.

    Clients have too much at stake for lawyers to just keep doing what they’ve always done, hoping for a different result.

    If all you intend to do is simply deliver your content to your audience, you might as well send your newest associate and take the day off.

    To be persuasive, compelling, and memorable to your audience you must add strong non-verbal skills – good eye contact, appropriate gestures, confident posture, and professional appearance – to the words you say.

    With even a modest investment of time and effort you can be a more powerful advocate for your clients and maybe even rediscover the passion that drew you to the legal profession in the first place.

  • LL.M Admissions at Pondicherry University [Free Education for PwD]: Apply by July 31
    09 July 2020
  • ILS Law College’s Webinar on The Crime of Murder: De-mystified [July 10-11]: Register Now!
    09 July 2020
  • Nestlé India Virtual Internship in Legal & Corporate Governance & Compliances: Apply by July 11 [Redirects to NoticeBard]
    09 July 2020
  • The CROWN Act: Banning Hair Discrimination at Work
    09 July 2020

    As of July 1, 2020, Virginia is the latest U.S. state where hair discrimination is illegal. Passed earlier this year, Virginia’s CROWN Act prevents discrimination on the basis of hair, especially “racial identifiers” such as hair type and texture. CROWN stands for Create a Respectful and Open World for Natural Hair, and it specifically protects individuals against discrimination for wearing their natural hair, including protective styles such as braids and locs. Similar legislation has been passed in several states, including California and New York, with others likely to do the same. In light of this new legislation, we’ve answered a few questions that you may need to know as an employer or employee.

    Free Employee Handbook

    Outline your policies as an employer.

    How is the CROWN Act different from existing law?

    The laws with regard to discrimination against natural hair have been at odds over the last several years. In 2016, a Federal Court held that employers could legally terminate or deny job opportunities to individuals for choosing to wear their hair in dreadlocks. The branches of the U.S. Military, however, lifted a ban on protective and natural hairstyles in 2017, and since then several other states have issued their own legislation. With the CROWN Act recently passed in Virginia and more states moving towards similar legislation, it seems we can expect the ban on hair discrimination to be more widespread in the future.

    Which states have laws banning hair discrimination?

    So far, the CROWN Act has passed into law in New York, New Jersey, Maryland, Virginia, Colorado, Washington, and California. It is filed or pre-filed in Massachusetts, Pennsylvania, Ohio, Michigan, Tennessee, Georgia, and Nebraska. The CROWN Act also has been introduced on a federal level, but for now you should talk to an attorney if you have questions about state and local laws where you are.

    What does a hair discrimination ban mean?

    Legislation like the CROWN Act prevents people from facing punitive actions or other discrimination for choosing to wear their natural hair, or for having their hair in a protective style. This means that, for example, a child cannot be sent home from school or found to be violating dress code for wearing their hair in braids. It also prevents an individual being denied a job opportunity or fired for the same.

    What should I do as an employer?

    If you are an employer in a state that bans discrimination against natural hair, you can update your Employee Handbook or your Anti-Discrimination Policy to reflect that change, and follow appropriate protocol for employees if they feel they have been discriminated against. Your Employment Application can also be modified if needed. If you have questions about how to ensure your business is compliant with anti-discrimination legislation—or if you feel that you have been discriminated against for wearing your natural hair, talk to a lawyer.

    The post The CROWN Act: Banning Hair Discrimination at Work appeared first on Rocket Lawyer.

  • Mohammed Umar Resumes As Acting EFCC Boss
    09 July 2020

    Mohammed Umar, Head of Operations at the Economic and Financial Crimes Commission, EFCC, has resumed as the acting chairman of the agency.

    Until his assumption, Umar, a Deputy Commissioner of Police, was the second most senior official at the agency.

    The post Mohammed Umar Resumes As Acting EFCC Boss appeared first on Lawyard.

  • The Penultimate Day of Overtime July: Religious Liberty Wednesday
    09 July 2020

    On Wednesday, the Supreme Court decided two religious liberty cases. First, Our Lady of Guadalupe School v. Morrissey-Berru expanded the so-called ministerial exception beyond the scope ofHosannah Tabor v. EEOC. Justice Alito did little to stifle retirement rumors with his citation in Footnote 16 to The Benedict Option. Second, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania narrowly upheld the Trump administration's efforts to rescind the Obama-era contraception mandate. The Justices did not consider the underlying RFRA issue that has been simmering for the last 7 years. But that case is far from over. (I have edited these cases for the Barnett/Blackman supplement; please let me know if you'd like a copy: josh-at-joshblackman-dot-com).

    On the penultimate day of Overtime July, the Court gave us Religious Liberty Wednesday. I always wonder how the Court decides to pair cases. The fact that both cases today went to the right tells me that the remaining cases go against Trump tomorrow.

    Tax Return Thursday is on deck!


  • Florida voters with felony convictions ask justices to intervene in voting-rights dispute
    09 July 2020

    With the deadline to register to vote in Florida’s August primary election 12 days away, a group of Florida voters and civil rights groups today asked the Supreme Court to reinstate a ruling by a federal trial court that struck down a state law that requires Florida residents who have been convicted of a felony to pay all court fees and costs before voting. An order by the U.S. Court of Appeals for the 11th Circuit that put the trial court’s ruling on hold, the voters argue, “creates chaos and confusion about who can and cannot vote, where a wrong guess creates the risk of criminal prosecution.” The potential impact of the Supreme Court’s ruling is immense, the voters add, for three-quarters of a million Floridians who may now be uncertain about their eligibility to vote as a result of the 11th Circuit’s order.

    In November 2018, voters in Florida adopted an amendment to the state’s constitution that allows people with prior felony convictions to vote once they complete “all terms of their sentence including parole or probation.” Seven months later, the state’s legislature passed a law that conditioned the right to vote for former felons on the payment of all court costs, fees and fines. Voters challenged the law, arguing (among other things) that it is unconstitutional because it discriminates on the basis of wealth. A federal district court agreed and temporarily blocked the state from enforcing the law. The 11th Circuit upheld that ruling in February.

    After a trial, the district court issued a new ruling in May that concluded that the law also violates the U.S. Constitution’s 24th Amendment, which bans poll taxes. Moreover, the district court added, it could take years for the state to determine how much would-be voters must pay before they can vote – which in turn deters voters from registering at all, out of fear they will be charged with voter fraud if they make a mistake. Florida appealed again to the 11th Circuit, which on July 1 granted the state’s request to have the full court hear the case and to put the district court’s ruling on hold while the appeals proceed.

    In their filing today, the voters urged the Supreme Court to lift the 11th Circuit’s stay and reinstate the district court’s ruling. Citing the court’s 2006 decision in Purcell v. Gonzalez, which stands for the principle that courts should be wary about making changes in the run-up to an election, the voters complained that the 11th Circuit’s order “has created triple the ‘confusion and consequent incentive to remain away from the polls’” as the Supreme Court found in Purcell. And it did so, the voters continued, “just three weeks before the registration deadline for the August primary” and “after vote-by-mail applications were already received and just as ballots were mailed to overseas voters.” The Florida primary is on Aug. 18, and the registration deadline is July 20.

    In a statement, Paul Smith of the Campaign Legal Center, which represents the voters, urged the justices to “allow the District Court’s order to remain in effect as the State’s appeal is reviewed. Florida’s voters have spoken,” Smith continued, “loud and clear—nearly two-thirds of them supported rights restoration at the ballot box in 2018. This case is about the bedrock principle that voting rights cannot be reserved for those who can afford to pay for them.”

    The voters’ request inRaysor v. DeSantis will go to Justice Clarence Thomas, who fields emergency applications from the 11th Circuit. Thomas can act on the request on his own or, as is more likely, refer it to the whole court.

    This post was originally published at Howe on the Court.

    The post Florida voters with felony convictions ask justices to intervene in voting-rights dispute appeared first on SCOTUSblog.

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