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Lane
Lane, MBA, CFP, CRPS
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I have another question.Q: to what extent it could be argued

Customer Question

I have another question.

Q: to what extent it could be argued that the courts rely on policy considerations when determining cases?

I am coming from Maritime law side but it could be any other case law. Any examples?

Thanks.
Submitted: 1 year ago.
Category: Homework
Expert:  Lane replied 1 year ago.

Take a look at this case.

Civil Service Reform Act of 1978, 5 U.S.C. 1201 et seq

And interesting jog (going out and coming back) can be seen in the review of Claims of Discrimination in Security Clearance Determinations in the U.S. (I think an analysis of a US phenomenon can be applied, given our common law roots).

In Department of the Navy v. Egan, 484 U.S. 518 (1988), the US supreme court held that a statute should not be interpreted to grant jurisdiction to review the merits of a security clearance determination ''unless Congress specifically has provided otherwise." (484 U.S. at 530)

So, they held that the Civil Service Reform Act of 1978, 5 U.S.C. 1201 et seq., did not give the MSPB authority to review the SUBSTANCE of a denial of a security clearance.

in other words this was a time where SCOTUS said specifically that policy basis was NOT allowed.

This, is an example of the HIGH DEFERENCE given to the executive branch BY THE US CONSTITUTION in matters of national security.

(Given both the national security perspective and this being an against the grain issue with respect to policy basis of decisions, I though it might provide you with some balance ... atypical situation, policy decision specifically disallowed)


Another case where policy was NOT allowed as a basis, was MASSACHUSETTS v. ENVIRONMENTAL PROTECTION AGENCY (2006) a 5/4 ruling regarding greenhouse gases.

The act's definition of air pollutant was written with "sweeping," "capacious" language so that it would not become obsolete.

However, the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations.



Again, thought these might some perspective to that I would thing is the more common finding, that policy guides most. in both of these, policy was specifically (in Egan that policy should not be a basis for a constitutional reason and in EPA that policy wasn't enough, or shouldn't be invoked just to make a law stand)



Hope this helps

Lane

Lane, MBA, CFP, CRPS
Category: Homework
Satisfied Customers: 3731
Experience: MBA, CFP & Chartered Retirement Plans Specialist
Lane and 4 other Homework Specialists are ready to help you
Customer: replied 1 year ago.

Thanks a lot. Any examples from English Court Cases?

Expert:  Lane replied 1 year ago.

Stilk v Myrick [1809] EWHC KB J58

Garrow's defense, was an argument that the agreement between the captain and the sailors was contrary to public policy, and, hence, completely void.

The precedent for this was Lord Kenyon in Harris v Watson, Peak. Cas. 72, where the Judge held, that "no action would lie at the suit of a sailor on a promise of a captain to pay him extra wages, in consideration of his doing more than the ordinary share of duty in navigating the ship."

His lordship said that "if such a promise could be enforced, sailors would in many cases suffer a ship to sink unless the captain would accede to any extravagant demand they might think proper to make."

This is an excellent example of a case decision on policy.




But in the Stilk v Myrick case, itself, we see a case where policy (on which Garrow's case was built)is said NOT to be the issue, but rather a lack of the consideration element in contract. What's interesting here is that policy still is seen as important, but not applicable, in THIS case.

Lord Ellenborough rendered his decision as follows:

"I think Harris v Watson was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all that they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty upon themselves, and their agreeing to do so might have been a sufficient consideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death; and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port. Therefore, without looking to the policy of this agreement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of £5 a month."

So, here we see one side's case being totally built on policy so much so that it would VOID the agreement completely, and the judge acknowledging it's importance but pointing out that policy wasn't the issue in the current case, but rather the more fundamental lacking of a contract element.

I'll see what else I can find ...


Expert:  Lane replied 1 year ago.


I've placed a public domain Ebook (pdf file) on my Google drive your you.

I found it while searching for English Court Cases decided on public policy.

Look at page 924: Lots of good stuff where public policy is mentioned, again, as completely voiding an action because that action is against public policy.

This should give you some good "ammunition."

Here's the link:

https://docs.google.com/open?id=0B_zySkB__jYMUk1iaGVHX2pXRDg




Hope this helps

Lane

Positive feedback (or an “accept”) is highly appreciated. That’s how we’re paid. HOWEVER, if you need CLARIFICATION, COME BACK here. Also, feel free to bookmark this page to come back for reference.

Expert:  Lane replied 1 year ago.

Thanks for the feedback!

Lane

Customer: replied 1 year ago.

Thanks a lot. This was very helpful. I tried to get the PDF file from the Google site but it requires a login and password. Can you help? Thanks.

Expert:  Lane replied 1 year ago.
Hi Imran,


I'm just following up with you to see how everything is going. Did my answer help?


Let me know,
Lane
Expert:  Lane replied 1 year ago.
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Expert:  Lane replied 1 year ago.
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Expert:  Lane replied 1 year ago.
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