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Tim Kaye, The Confusion of Perspectives, Policies and Practices in Wal-Mart v. Dukes, 26 Westlaw Journal of Employment 14 (2011)Clicking on the button will copy the full recommended citation.
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Tim Kaye, Rights Gone Wrong: The Failure of Fundamentalist Tort Theory, 78 Miss. L.J. 931 (2010)Clicking on the button will copy the full recommended citation.
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Tim Kaye, Divided by a Common Language: Why the British Adoption of the American Anti- Discrimination Model Did Not Lead to an Identical Approach to Age Discrimination Law, 3 J. Int'l Aging L. & Pol'y 17 (2009)Clicking on the button will copy the full recommended citation.
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Tim Kaye, Law and Risk: An Introduction, in Risk and the Law (Gordon Woodman and Diethelm Klippel eds., Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
Although lawyers sometimes use terms such as 'risk distribution' and 'assumption of risk,' it is striking that there has been a dearth of scholarship on the relationship between law and risk. This paper seeks to start to address that deficiency and urges scholars to devote more time to this important area. It suggests that risk analysis in the past has been hampered by both confusion over terminology and fundamental misunderstanding of the differences between - and relevance of - subjective and objective risk. It argues that, once these details are properly understood, looking at law from the perspective of the risks involved dovetails with other, more familiar, ideas such as Henry Maine's movement from Status to Contract and John Stuart Mill's 'harm principle'. In this vein, it considers developments of the law within Europe and attempts to relate them to the growth of what has become known as the 'Risk Society'. Focusing particularly on English and German law, it also draws a number of comparisons with the position in the United States. Legal scholars who continue to omit a systematic discussion of risk from their analysis may be overlooking a valuable perspective.
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Tim Kaye, Risk and Predictability in English Common Law, in Risk and the Law (Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
It is often said that the biggest challenge facing private law is that posed by the continual need to choose between certainty and justice. Certainty is a worthy goal, it is said, because everyone knows exactly where they stand and judicial decision-making can proceed from clearly-articulated statements of legal principle. On the other hand, the pursuit of certainty may not allow for sufficient differentiation between different circumstances. Justice may modify this problem, but only by introducing uncertainty.
Such an account may be thought so familiar as hardly to be worth recounting. Yet this paper seeks to challenge this dichotomy by suggesting that it is the product of a very peculiar combination of perspectives. Philosophically, the dichotomy is problematic only to legal positivism and allied schools of thought. Even then, it presents difficulties only if viewed from a particular temporal perspective as well: that is, after the events in question have already taken place and have become known.
It is argued that this combination of perspectives is singularly unhelpful. It fails to provide any sort of systematic explanation for a very large number of cases, preferring instead to dismiss them as 'policy decisions'. Such dismissal is not so much an explanation as an abdication of explanation. This paper suggests that, if we move from an ex post facto positivistic perspective to one that takes an ex ante approach which focuses on the predictability of risk, then not only does the certainty-justice dilemma cease to be problematic; it also provides a much more plausible and persuasive account of the case law.
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Tim Kaye, Aim Higher: Challenging Farrington and Palfreyman’s The Law of Higher Education, 33 J.C. & U.L. 559 (2007)Clicking on the button will copy the full recommended citation.
In The Law of Higher Education, Dennis Farrington and David Palfreyman present a wealth of material about higher education in the United Kingdom. It is argued, however, that their work is significantly flawed because it is colored by a 'consumerist' perspective which views education as a 'product' of 'corporate enterprise'. This review article attempts to redress the balance and provide a more objective analysis.
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Tim Kaye, Childhood Obesity, School Food and Education: The Role of the Law, in The Law as an Agent of Change in Education (Roderick Flynn ed., CAPSLE, 2006)Clicking on the button will copy the full recommended citation.
Child obesity is a growing cause for concern in both North America and the United Kingdom. Despite a number of initiatives to tackle the problem, rates of childhood obesity continue to rise on both sides of the Atlantic. Nowhere is the problem more acute than the UK, which is believed to have the fastest-growing rate of obesity in the developed world. In 2001, 23 per cent of British women and 21 per cent of British men were obese, compared to 8 per cent of women and 6 per cent of men in 1980. Childhood obesity has almost doubled since the mid 1980s. Indeed, between 1996 and 2001, the proportion of overweight children aged 6 to 15 years old increased by 7 per cent, whilst the International Obesity Task Force (IOTF), has warned that over 40 per cent of the UK population could be obese "within a generation". This paper examines the changes in English education law which have facilitated this increase in obesity rates, and considers too the changes which have recently been made or are currently under consideration in order to try to reverse the trend.
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Tim Kaye et al., Criticizing the Image of the Student as Consumer: Examining Legal Trends and Administrative Responses in the US and UK, 18 Educ. & L. 85 (2006)Clicking on the button will copy the full recommended citation.
There is widespread concern that higher education is being compromised by being turned into a 'commodity' to be 'consumed'. This article represents an initial attempt to explore the trends in both the UK and US, and considers how the law has responded to them. It argues, however, that there is an important distinction to be drawn between 'commodification' and 'consumerism'. Education has always been a commodity to be bought and sold; the true danger lies in the move to a 'rights-based' culture where students (and politicians) see education merely as something to be 'consumed' rather than as an activity in which to participate. Whilst the law seems thus far to have been something of a bulwark against this movement, it remains an open question as to whether this will continue to be the case if higher education institutions do not themselves act more proactively in challenging this damaging view of higher education.
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Tim Kaye, Religion and Education in England and Wales, in Cultural and Educational Rights in the Enlarged Europe (Jan de Groof and Gracienne Lauwers eds., Enfield Publishing & Distribution Company, 2005)Clicking on the button will copy the full recommended citation.
Any modern democracy with an established religion faces a dilemma. On the one hand, the fact of establishment itself implies one true faith. On the other hand, discrimination (except for good reason in carefully defined circumstances) is unacceptable. An irony compounds this 'democratic dilemma': whatever may be the established religion, it does not necessarily follow that it is practised by the majority of the population. Indeed, it seems quite possible that more Brits currently find spiritual solace in various cults rather than traditional religions.
This paper explores the role of religion in both public and private education in England and Wales, from K-12 through to post-secondary education. It finds that the means by which the law continues to wrestle with the above conundrum is not necessarily well chosen. The pattern of legislation has been to lay down with one hand a blanket prohibition on religiously-based discrimination; but then, with the other, to provide for exceptions to this ostensible norm which actually mean that those of a particular religious persuasion often do receive preferential treatment.
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Tim Kaye, Review of Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, 26 J. Mind & Behavior 307 (2005)Clicking on the button will copy the full recommended citation.
This book review praises Lloyd Weinreb for re-asserting that the use of analogy is at the core of legal - and particularly judicial - reasoning. It finds, however, that he is not quite prepared to accept the implications of his own argument: namely that judges in a common law system can, do and must make law. It is submitted that this obsession to pretend that judges do not make law is peculiarly American. Judges throughout the rest of the common law world are commonly seen as doing just that, and regularly acknowledge that fact.