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Boris, Bristol, and the Rule of Law

February 3, 2022

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By David McIlroy

The rule of law was much in the news in the UK in January 2022. The British prime minister was accused of attending, organising and approving parties in Number 10 Downing Street, his official residence, at a time when government restrictions prevented more than 2 people gathering. At the same time, a jury acquitted four people, who tore down the statue of the slave-trader Edward Colston in Bristol as part of a Black Lives Matter protest, of causing criminal damage. 

The rule of law means that the same rules apply to everyone. By encouraging and participating in social gatherings, the British prime minister at the very least gave the impression that he did not think the rules applied to him. His behaviour stands in stark contrast to that of the Queen, sat alone at the funeral of her husband of more than 70 years, Prince Philip.

The rule of law also means that the rules have a certain quality, that the rules are made for the good of the people. The common law polices this requirement through its insistence that serious crimes may or must be tried by a jury. For more than 350 years, juries in England have had the right to refuse to convict an accused if they consider it would be seriously unjust to do so. This right was first established in Bushel’s Case in 1670. Edward Bushel was one of a jury which had found William Penn (the future founder of Pennsylvania) and William Mead not guilty of a breach of the Conventicle Act (which prohibited religious assemblies of more than 5 people). The judge hearing the case had imprisoned the jury for failing to return the correct verdict, but Bushel successfully petitioned the Court of Common Pleas for their release.

So, whilst the acquittal of the “Colston Four” was criticised by some commentators as suggesting that demonstrators can take the law into their own hands, it is justifiable as signifying that Edward Colston no longer deserves to be publicly venerated. Its symbolic removal signifying a rejection of Britain’s slave trading past is an affirmation that the common law failed for so long as the rule of law did not apply to black people. 

I’ve explored these different ways of thinking about the rule of law in my book, The End of Law: How Law’s Claims relate to Law’s Aims (2019). In it, I argue that rulers don’t have to govern according to the rule of law, and when they do, they often do so only for the benefit of certain groups and not others. The rule of law doesn’t guarantee justice by itself but it does exclude certain forms of injustice. It is precious and the price of its continuance is constant vigilance.


David McIlroy, Barrister, Forum Chambers and Distinguished Fellow and Visiting Professor, University of Notre Dame (USA) in England.

David’s book, The End of Law: How Law’s Claims Relate to Law’s Aims is available on our website, read Chapter 1 free on Elgaronline

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“Win in State Court, Lose in Federal Court.” The Lament of the Aviation Plaintiff Litigator.

February 2, 2022

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By David Cluxton

“Win in state court, lose in federal court.” The lament of the aviation plaintiff litigator whilst crying—not always metaphorically speaking—into their beer at the end of another frustrating day battling before the federal bar. It is no secret that U.S. state courts are generally regarded as being pro-plaintiff, while the U.S. federal courts are seen as pro-defendant. This is a reality that makes itself felt in any number of ways and can, not only be of great significance to the litigation of a given case, but often also outcome determinative. This is especially true in the litigation of aviation passenger claims, that are, by the nature of air transport, more likely to involve a foreign element, and thereby expose the case to issues of competing jurisdiction and conflict of laws.

For instance, if we take a hypothetical crash occurring in Colombia of an Irish-registered aircraft, operated by a U.S. airline, and involving death or personal injury to a passenger of French nationality, these circumstances could offer the plaintiff a choice of several forums in which to pursue a claim. In such cases, it almost goes without saying that the plaintiff will elect to sue in a forum within the United States; it being the forum of choice for the litigation of aviation passenger claims. The United States has long been the center of gravity for such litigation. Many factors make trial in the United States desirable, such as the availability of contingency fees, wide-reaching rules of pre-trial discovery, highly experienced law firms specialized in aviation litigation. But, above all, it is usually the quantum of damages likely to be awarded by in a U.S. forum that is the decisive factor in choosing to sue in the United States.

Where some element of an aviation passenger case touches the United States, the plaintiff lawyer will seek to bring that case in a U.S. court. But where that case involves an international component that also provides for the possibility of suing in an alternative foreign forum, then the plaintiff lawyer seeking to sue in the United States must wrestle with the problem of a common law doctrine called forum non conveniens. Simply put, the doctrine of forum non conveniens (FNC for short), permits the chosen forum (i.e., the court to which the plaintiff has brought their claim) to decline jurisdiction over the case, at the behest of the defendant, where an alternative forum is deemed to be more appropriate or convenient in the circumstances. For example, in our hypothetical example above, the defendant may argue that Colombia is the more appropriate forum for resolving the claim, because, as the location of the accident, a Colombian forum would have better access to evidence, and/or that there is a greater public interest in the litigation in Colombia than in the United States, and/or that there is existing litigation of other actions occurring there pertaining to the same accident; the possible reasons are legion.

The specter of FNC dismissal of an international aviation passenger claim is one such area where the difference in treatment between U.S. state courts and U.S. federal courts is most conspicuous and influential. This is because there is a much greater likelihood of FNC dismissal from a U.S. federal court than from a U.S. state court. The more conservative leaning and pro-defendant tendencies of U.S. federal courts mean that they are more likely to side with the defendant who is seeking dismissal on grounds of FNC. For this reason, the plaintiff aviation litigator will attempt to avoid federal court entirely by pleading their case exclusively on state law. However, there are a number of pitfalls to be avoided if one wants to keep a case in state court, e.g., federal question matter.

When it comes to claims to which the Warsaw Convention 1929 or the Montreal Convention 1999 apply, keeping a case in state court has proven a Sisyphean task. These conventions (these are multilateral treaties) govern the liability of the carrier for international carriage by air of passengers, baggage, and cargo. They contain uniform rules pertaining to matters of such as liability, jurisdiction, defenses, time limitations, and so on. Thus, where a passenger is killed or injured in an aviation accident to which one of these conventions applies, an action for damages (e.g., a wrongful death action) must be brought against the carrier subject to its provisions.

Where the Warsaw Convention 1929 or Montreal Convention 1999 apply, if a plaintiff sues in state court, pleading a state-law cause of action for wrongful death, the immediate response of the defendant carrier will be to seek to have the action removed to federal court. When the plaintiff then seeks remand back to state court, the defendant carrier will argue that the applicable convention provides the cause of action, and, since it arises under the law of the United States, the federal courts have jurisdiction. What is more, the defendant will argue that the cause of action under the applicable convention is exclusive and completely preempts of any causes of action under state law. Thus, even where the plaintiff’s well-pleaded complaint reveals only a state-law cause of action, that cause of action is effectively converted into a federal cause of action. Unfortunately, many federal courts have proved indulgent of these arguments by defendant carriers and have endorsed the doctrine of the exclusivity of the cause of action of the Warsaw and Montreal Conventions.

Is this conversion of a state-law action into a federal one the result of juristic hocus pocus, or some arcane legal alchemy? Whatever its true nature, the practical result is that aviation passenger cases that are brought first in state courts are routinely removed to a federal forum. Once there, the likelihood is that the defendant will seek dismissal on grounds of FNC, arguing that a foreign forum is the more appropriate or convenient forum for resolution of the claim. Of course, the reality is that the defendant’s motivation is seldom, if ever, appropriateness or convenience; instead, it is the desire to avoid a U.S. forum in preference for a foreign forum where the ultimate quantum of damages likely to be awarded will be much less. In most cases, once the litigation of the claim in a U.S. forum has been averted, the parties will elect to settle out of court.

Is it fair to plaintiffs to deprive them of their choice of forum in this way? The answer to this question is largely dependent upon establishing whether or not the cause of action of the Warsaw and Montreal Conventions is indeed exclusive. Was it the intention of the drafters of those treaties that they should be a one-stop-shop for the passenger claims, excluding reference to national law causes of action; or, were the drafters satisfied with merely laying down the conditions upon which national law causes of action could be exercised? The titles of those Conventions both refer to the “unification of certain rules”, i.e., not all rules. This would suggest that the drafters intended the latter, not the former. In which case, the drafters would not have objected to a plaintiff basing their claim on state law and pursuing it to a conclusion in a state court. If, as I argue, the doctrine of exclusivity of cause of action is doctrinally unsound and is in fact the result of decades of mistaken interpretations, overlooked distinctions, and exaggerated conceptions, we must seek out the true motivation for its creation.

In the specific context of aviation passenger litigation, why should the U.S. courts seek to deprive the plaintiff of their choice of forum? As is demonstrated in my book, the reason lies in the United States’ refusal to ratify an amending protocol to the Warsaw Convention 1929, i.e., the Hague Protocol 1955, and the resulting difficulties that this produced and that, in turn, gave rise to the latent, compelling policy justifications for indulging the concept of exclusivity of cause of action. These policy justifications are, however, no longer salient. This is especially so in the context of the Montreal Convention 1999, that is, after all, a modernization and consolidation of the Warsaw Convention System, and, furthermore, encapsulates a new balance of interests favoring the plaintiff passenger (qua consumer) vis-à-vis the defendant carrier. In spite of this, the unsound doctrine of exclusivity of cause of action persists, continuing to prejudice the interests of plaintiff passengers in favor of the interests of air carriers, their insurers, and the wider air transport industry. Ensuring the equitable and speedy resolution of international aviation passenger claims is one of the purported purposes of the Montreal Convention 1999, and the desire to strike a new, fairer deal for the plaintiff passenger was voiced by the drafters as a key goal during its gestation. However, the U.S. federal courts continued endorsement of the doctrine of exclusivity of cause of action is undermining those goals. It is my hope that my book might provide ammunition to those who seek to overturn the current consensus and banish the doctrine, or at least prompt legislators to remedy the situation.


Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions by David Cluxton is out next month. The book is available for pre-order on our website.

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Transforming Healthcare Through Innovation and Entrepreneurship

January 18, 2022

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Dr Claudine Kearney explores the leadership of innovation and entrepreneurship in healthcare.

Creativity, innovation and entrepreneurship are important concepts and critical for the global advancement of healthcare. Within healthcare it is important to recognize that creativity is the first step for innovation, which can emerge anywhere and at any level within the organization. Innovation is a necessity for healthcare now and in the future particularly with the growing demand on the healthcare system driven by an aging population, an increasing prevalence of chronic disease and illnesses, and changes in patient needs with requirements for more personalized patient care. Scientific and technological advances are at the centre of healthcare innovation. Therefore leaders of healthcare organizations need to develop a climate that supports and empowers individuals and teams to be creative and innovative and in doing so nurture the entrepreneurial spirit and apply core business principles to bring new ideas into commercially viable medical innovations that will change the world of healthcare.

Over the last number of decades the field of healthcare has experienced significant innovations developed to enhance life expectancy and quality of life. The development of innovation in healthcare is a response to the critical needs of patients that can emerge over time or as a result of certain unprecedented circumstances that quickly emerge and need to be addressed urgently. This can be a result of the aging population and growing needs to address certain chronic diseases or the unprecedented global pandemic of Covid-19. Understanding innovation and the different types of innovation and the opportunities for innovation is significant for the field of healthcare. Healthcare organizations that support and nurture the innovative capability of their individuals and engage in open innovation can lead to the effective process of innovation that will result in new product, services, processes, technologies and delivery methods that generate patient value and enhance the healthcare system. It is the effective link between scientific and technological advances and meeting the diverse needs of stakeholders that leads to successful innovations that generate value in healthcare.

Leadership is the role of all healthcare professionals

Leadership is no longer focused on formal senior positions, but the role of all healthcare professionals throughout the healthcare organization. Traditional hierarchical practices have more recently given way to recognize leaders as part of a group and leadership as a more interactive process. Leadership style and practices have a significant impact on healthcare organisations and their engagement in innovation and entrepreneurship. Therefore, it is paramount to ensure the right leadership practices that will improve patient experience and care; reduce medical errors, infection and mortality; increase staff retention and morale; decrease staff turnover, absenteeism, stress and burnout. On this premise the integration of entrepreneurship and leadership to achieve entrepreneurial leadership can make a major contribution to the field of healthcare.

The challenge facing many healthcare organizations in today’s complex and unprecedented environment is how to effectively develop creativity and innovation among individuals and teams. Healthcare organizations need to meet the demands of a diverse group of stakeholders but most importantly address patient needs. The ability of the organization to address the daily healthcare needs, while at the same time having a futuristic approach to innovation, is challenging yet imperative. Innovation and entrepreneurship requires people. Therefore healthcare organizations need to utilize the competencies and creativity of their people to work together to identify opportunities for the betterment of healthcare. This requires leadership that drives innovation and entrepreneurship, and facilitates continuous engagement, collaboration, teamwork and effective communication.

To transform healthcare, innovation and entrepreneurship needs
to start with patient needs at the forefront

In the 21st Century, women represent 70 percent of the healthcare workforce, yet globally leadership roles particularly at the more senior level continues to be highly skewed towards men. This continuous underrepresentation of women in leadership roles in the healthcare sector is a global norm that needs to change. Women in innovation and entrepreneurship in healthcare are also experiencing gender bias. Healthcare organizations are not adequately addressing the disparity of gender equality in leadership, innovation and entrepreneurship. To transform healthcare, innovation and entrepreneurship needs to start with patient needs at the forefront. This can be best achieved when there is supportive leadership and equal opportunities for all qualified healthcare professionals to hold leadership roles and engage in the innovation process utilizing competencies and experiences and addressing fundamental gaps and defficiencies in healthcare delivery.

Innovations in healthcare products, assessment procedures, diagnoses, treatments,  and delivery of care have been significantly developed in recent decades. Such innovations increase patient quality of life and life expectancy and enhance the delivery of high quality and safe care for all patients. The development of innovations in healthcare also increases efficiency, effectiveness, accessibility and reduces medical errors and costs. The growing emphasis on the importance of innovation and entrepreneurship to healthcare should encourage leaders in healthcare organizations to support and facilitate more innovative ways to generate greater patient value into the future. Innovation and entrepreneurship in healthcare needs to have a future oriented mindset that understands ‘one size does not fit all’. A more personalized approach is needed, through effective interaction between healthcare professionals, stakeholders and other key experts internally and externally to develop future innovations that will further enhance healthcare and lead the world to better health.

Healthcare needs creativity, innovation, entrepreneurship, courage, resilience, passion, compassion and strong leadership. Be the healthcare leader that drives innovation and entrepreneurship, has a vision that accomplishes the imaginable, and who makes it happen – and keep it happening!


Claudine Kearney is Assistant Professor of Entrepreneurship and Strategy, Graduate School of Healthcare Management, RCSI University of Medicine and Health Sciences, Ireland

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Levelling up, Fairness, and Efficiency

October 27, 2021

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By Roger A. McCain

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The Dawn of the Information Age

October 25, 2021

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‘It’s the beginning of the new age, it’s the beginning of the new age, it’s … , etc’. So goes the refrain of the Velvet Underground anthem that used to so intoxicate me as a teenager. Now, I would substitute ‘It’s the beginning of the information age, it’s …, etc’. This, the information age, or, in Manuel Castells’s language, the global network society, is the context for the contributions I have collated in the Research Handbook on Information Policy. (The photo on the dust jacket is meant to represent the dawn of a new age: hopefully it succeeds, or that it is at any rate a pretty cover for the library shelf or coffee table.)

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