Adding a Little Gold to the Golden Years: Should the European Union Prohibit Compulsory Retirement as Aged-Based Discrimination in Employment?

On October 2, 1997, the Member States of the European Union signed the Treaty of Amsterdam which amended the European Community Treaty (ECT). Among the Amsterdam Treaty\u27s most important new provisions was ECT Article 13, which authorized the Council of Ministers, acting unanimously, to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief disability, age or sexual orientation. The Council acted with surprising rapidity to adopt Directive 2000/78, which prohibits discrimination in employment on all the listed bases (except for racial or ethnic origin, which is covered by Directive 2000/43). Since December 2, 2003, the end of the period for Member State implementation of Directive 2000/78, the Court of Justice has issued numerous judgments interpreting and applying the Directives provisions. By far the largest number have concerned the Directives prohibition of discrimination in employment based on age. To date there has been relatively little American (or indeed EU) academic commentary upon the Court\u27s judgments. This article is accordingly timely in its presentation of the terms of Directive 2000/78, and its critical examination of the Court judgments concerning the prohibition of discrimination in employment based on age. Moreover the article compares the impact of the Directive and the Court judgments with the prohibition of discrimination in employment based on age through the U.S. Age Discrimination in Employment Act (ADEA), initially adopted in 1969. As amended in 1984, the ADEA totally prohibits employers from setting a compulsory retirement date, except where advanced age tends to impair an employee s occupational qualifications essential for performance in a particular profession or job. In Part I, the article describes the operational provisions of Directive 2000/78 relevant to the prohibition of age-based discrimination. The principal focus of the article, in Part II, is a description and critical examination of the four Court judgments reviewing national rules that authorize employers to set an age (usually sixty-five) for the compulsory retirement of employees. Part III supplements this with a description and critical examination of national compulsory retirement rules for certain specific professions or occupations (e.g., airline pilots, policemen, firemen, judges, prosecutors). Because the Court of Justice\u27s judgments have held that national rules authorizing employers to set a compulsory retirement age do not violate Directive 2000/78, a natural question is whether this judicial conclusion can be considered to be appropriate, as compared to the total prohibition of compulsory retirement in the U.S. After considering the significant difference between the limited social impact of the prohibition of compulsory retirement in the U.S., as contrasted with the significant adverse social impact of prohibiting compulsory retirement in many EU Member States, the article concludes that substantially higher unemployment rates among young people under thirty in some EU States justify their governments\u27 rules that authorize employers to set a compulsory retirement age. Accordingly, the Court\u27s judgments that permit national rules to authorize compulsory retirement in order to open employment opportunities for younger workers can be evaluated as appropriate and justified

Interpretive Freedom: A Necessary Component of Article III Judging

As judges have debated the best method of constitutional and statutory interpretation, scholars have begun calling for increased constraints on the methodological freedoms of Article III judges. This Note rejects such proposals on constitutional grounds. Drawing upon the jurisprudence and scholarship on inherent powers, I argue that interpretive choice is an inherent judicial power. The drafting and ratification history of Article III demonstrates that the Framers expected federal judges to interpret the law. To accomplish this task, however, judges must have some methodological approach to help them prioritize interpretive evidence. Thus, imposition of a binding interpretive methodology upon federal judges would pose two constitutional problems. First, it would infringe the essential judicial function of interpretive deliberation. Second, it would prevent the judiciary as a whole from engaging in its most powerful constitutional check on the excesses of the political branches. Because interpretive freedom is necessary to the fulfillment of the Article III judicial function, that freedom must be considered an inherent power vested in all federal judges

Geography as Due Process in Immigration Court

Using the procedural due process framework set forth by the Supreme Court in Mathews v. Eldridge, I argue that the current geographic distribution of immigration courts violates respondents’ rights to procedural due process by inhibiting their ability to appear, present evidence, and secure counsel. In so doing, I highlight the detrimental effects that geography has on remote communities, such as their ability to build pipelines towards access to counsel. Finally, I weigh and propose alternative solutions that balance the government’s interests in efficiency with the respondents’ interests in having a meaningful opportunity to avoid the harsh consequences of deportation

The Rule of Law and Ethical Integrity: Does Haiti Need a Code of Legal Ethics?

Abstract The Rule of Law and Ethical Integrity: Does Haiti Need a Code of Legal Ethics? When concerns about impunity and devastating poverty are facts of life, as they are in Haiti, lawyers face enormous obstacles in their efforts to uphold the rule of law and protect human rights. At the heart of many of these obstacles lie ethical challenges. For example, bribery of judicial officials is a crime and undermines the rule of law. But, what if a lawyer understands that pre-trial detention in the local prison generally involves grievous violations of inmates’ basic human rights, and bribery represents the most effective means for sparing a client from this pre-trial detention? Should the lawyer bribe the judge? In a landscape of stark choices, choices hinging on the ethical integrity of attorneys, Haiti lacks an official code of legal ethics. If, as in the above example, bribery is already a crime, would implementing such a code serve a useful role? Are there other roles for an official deontological code for lawyers? For instance, although Haiti lacks an official code of legal ethics, a Haitian decree does impose an absolute and unqualified duty on attorneys to keep clients’ secrets. What options then are available if a client reveals a plan to commit murder? Could an official code provide further guidance about attorney-client confidentiality? Through a collaboration of Haitian and U.S. authors, this Article analyzes the normative question of whether such an official code should be implemented. The Article concludes that the benefits likely outweigh the drawbacks, particularly if implementation proceeds in an environment providing organizational and cultural support for ethical conduct. The anticipated launch of what may be Haiti’s first law school legal aid clinic could furnish such an environment and supply a venue for exploring the real-world implementation of an official national code of legal ethics