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On 15th December 2020 the Westminster Government published its long-awaited Green Paper on public procurement law, “Transforming Public Procurement”, setting out its vision for the UK’s post-Brexit regime. In a number of Working Papers and articles the author has set out her own vision for a post-Brexit regime, which proposed that new legislation should regulate not mainly to ensure open markets, as with the current EU-based rules, but also to secure other objectives, such as value for money and integrity; and set out seven (related) principles which it was suggested should underpin the reforms, namely: an open contracting approach; a single and uniform regime; significant legislative simplification involving a shift from hard to soft law; use of familiar concepts, rules and terminology where appropriate; a rebalancing of interests away from open market objectives towards value for money, sustainability and reduced procedural costs, and a related shift in regulatory strategy to increase flexibility; more effective and balanced enforcement; and a common framework across UK jurisdictions. The present Working Paper provides an assessment of the Green Paper from the perspective of the key themes and recommendations of these proposals. It is explained that the Green Paper proposals follows the above approach to a very large extent. It proposes bold reforms to make the system more flexible, more streamlined and more transparent, including proposals for refocusing objectives, open contracting, a single and uniform regime, significant simplification, enhanced flexibility, including free access to negotiation and substantial improvements to enforcement. However, this positive view does come with some reservations. In particular, there is inadequate treatment of the important issue of mechanisms for recurring purchase in the form of framework agreements, dynamic purchasing systems and qualification systems. Here the proposals have potential for significantly reducing, rather than increasing, flexibility, contrary to a key aim of the reform, but are not sufficiently clear or justified to provide a basis for meaningful consultation. A second reservation is in the area of remedies. While valuable reforms are proposed to speed up court cases and improve pre-contractual remedies, it seems unlikely that these proposals alone will ensure access to justice for smaller companies; and while the prospect of removing some cases from the courts is raised for the longer term, such a future reform is by no means guaranteed. Finally, it is disappointing that the vision of a single and uniform regime has not been extended beyond the four sets of procurement Regulations that derive from EU law, as there are no convincing reasons not to do this.

The New Zealand Law Commission is reviewing Class Actions and Litigation Funding in New Zealand. The NZLC produced Supplementary Issues Paper 48 for consultation with stakeholders. This submission contains Nikki's response to Issues Paper 48. Nikki is an invited member of the expert advisory panel advising the NZLC on the review of Class Actions and Litigation Funding.

U.S. Supreme Court justices typically donate their working papers to archives upon their retirement, often with lengthy embargoes. Researchers have debated whether the justices should be required to retain and disclose their papers as government records, but there has been little study of how the papers are used in scholarly and journalistic discussions of the Court. This empirical study examines how the papers of Justices William Brennan, Thurgood Marshall, and Harry Blackmun are used via citations in books and academic law journal articles. We find that the vast majority of citations to the papers support discussions of the justices’ deliberations and negotiations when deciding cases, precisely the kinds of uses that show the value of transparency. To address constitutional objections to mandated disclosures, we propose an incentive grant program that benefits the archives that receive justices’ collections. This program would encourage justices to donate their papers with relatively short embargoes, ideally 15 years after retirement from the Court.

This paper looks back at the development of the common law right to remain silent and its eventually being made a constitutional right as an amendment to the United States Constitution via the 5th Amendment. The paper also traces the historical development of the right not to incriminate oneself and the link between the right to remain silent found in the Fifth Amendment but also to the right to have counsel present during interrogation found in the Sixth Amendment.

The New Zealand Law Commission is reviewing Class Actions and Litigation Funding in New Zealand from 2020 - 2022. The NZLC produced Issues Paper 45 for consultation with stakeholders.

תקציר בעברית: המאמר עוסק בספרו החדש של בועז סנג'רו, "ביקורת דיני העונשין הישראליים" (2020). לאחר תיאור חשיבותו של הספר ותרומתו, המאמר מתמקד בעקרון החוקיות, אחד העקרונות המפורסמים ביותר בדיני העונשין. סנג'רו מתייחס לדרישותיו השונות של העיקרון: הדרישה שאיסורים יהיו רק בחוק או מכוחו, הדרישה לפומביות החוק, הדרישה שהחוק הפלילי יחול מכאן ואילך, הדרישה להגדרה ברורה ומפורטת של האיסור, והדרישה לפרשנות מצמצמת. המאמר דן בכל אחת מהדרישות באופן מפורט וביקורתי, תוך הרחבה על שתי הדרישות האחרונות, שלעתים קרובות אינן מתקיימות במשפט הישראלי. המאמר יסקור איסורים מרכזיים שרחוקים מלהיות בהירים, ופסיקה עליונה בולטת שרחוקה מפרשנות מצמצמת. המאמר מציע שהמשפט הפלילי הישראלי נאמן לעקרון החוקיות כמעט רק במקרים שבהם נאמנות כזו אינה כרוכה בפגיעה באינטרס הציבורי, וקורא לרפורמה מקפת בחלק הספציפי של חוק העונשין. English Abstract: This article revolves around Boaz Sangero's latest book, "Critique of the Israeli Criminal Law" (2020). After describing the book's importance and contribution, this article focuses on the famous principle of legality in the substantive criminal law. Sangero addresses the various requirements of the principle: the requirement that prohibitions will be set only by the legislator, the requirement that all laws are made public, the requirement that new laws apply prospectively, the requirement that prohibitions are elaborate and clear, and the requirement for narrow interpretation of criminal prohibitions. This article discusses each requirement critically, elaborating on the last two, which are often denied by the criminal law in Israel. It illustrates diverse central prohibitions, which are far from clear, alongside famous verdicts by the Israeli Supreme Court, which are far from narrow interpretation. This article suggests that the Israeli criminal law is faithful to the principle of legality only in cases in which such faithfulness does not come at the expense of the public interest in conviction.

Friction stir welding (FSW) is the fastest evolving joining technology and the principal prospective technique for implementing an integral fuselage structure in aircraft manufacturing. The viability of FS welds is dependent upon mechanical properties and production turnovers, which are dependent on welding rates and tool design. Hence this review paper border on the effect of welding parameters, tool designs on micro-structure, and mechanical behavior of friction stir welds. The micro-structure and micro-hardnesses which were influenced by the welding rates determined static properties, failure locations, and residual stress minima and maxima. The study reviews the nature and distribution of material flow, grain structure, and precipitates in the aluminum FS welds and their effect on mechanical properties. Advances in the industrial application of Friction Stir Welds and further prospects are critical to this review work.

This document seeks to respond to the questions raised by the Australian Human Rights Commission and World Economic Forum in their ‘Artificial Intelligence: governance and leadership’ White Paper consultation. It draws upon some of the research conducted at the Allens Hub to make suggestions about if and how systems involving some component of artificial intelligence or automation should be regulated. It also seeks to create further clarity regarding the potential structure and functions of the proposed Responsible Innovation Organisation. We note that our research does not relate to all the questions asked in the White Paper consultation, and so we only set out answers in relation to those matters where our research may be relevant. We are otherwise grateful for the opportunity to present our views and hope this submission will help the Australian Human Rights Commission and World Economic Forum in their consideration.

This paper provides guidance to authors of European Institute for Food Law working papers. It discusses topics such as the template, style, referencing, lay out, the use of illustrations, and posting a paper online.

CaV6O16·3H2O spong-like and tube-like three-dimensional (3D) structures were constructed by a simple hydrothermal method. The 3D structures composed of superlong CaV6O16·3H2O nanobelts have good tailorability. CaV6O16·3H2O papers with different thickness can be obtained by simply pressing (cutting) and drying the 3D structures. The electrochemical performances of the obtained CaV6O16·3H2O paper as the self-standing cathode for lithium-ion batteries (LIBs) were investigated for the first time. It delivers an initial discharge capacity of 463.9 mAh g−1 at 50 mA g−1 and maintains at 162.3 mAh g−1 after 50 cycles. This work provide the possibility for designing high-performance cathode for LIBs.

In this paper, we examine delays in the resolution of class actions in the Federal Court and the New South Wales, Victorian and Queensland Supreme Courts. 592 proceedings were reviewed and publicly-accessible data on the duration of those actions, from their commencement to finalisation and the approval of settlement or handing down of judgment, is analysed. The data shows that time taken to resolve class action litigation in Australia falls a long way short of meeting benchmarks for the resolution of civil litigation generally. However, because of their unique characteristics, and given their complexity and scale, class actions cannot be expected to be resolved within the same timeframes considered appropriate for individual civil proceedings. Notwithstanding allowance for their unique characteristics, instances of actions which have taken several years to resolve, as well as the very protracted time taken to date in numerous as yet unresolved cases, are matters of considerable concern.

In light of the upcoming opportunity for Cyprus and other Member States to appoint by rotation an Advocate General (‘AG’) to the Court of Justice (‘ECJ’) in 2020-21, the objective of the present report taking the form of a discussion paper is to clarify the law and practice related to such appointments and set out recommendations accordingly. It does so by looking in particular into the relevant provisions of the Treaty on the Functioning of the European Union (‘TFEU’), namely the Article 253 TFEU requirements themselves, the reports of the Article 255 TFEU Panel, and the selection processes carried out at the national levels. Article 253 TFEU requires only that such nominees are persons whose independence is beyond doubt and who either meet the requirements for highest national judicial office or who are jurisconsults of recognised competence. An Article 255 TFEU Panel was established with the Treaty of Lisbon and is responsible for advising the Council of the EU on the suitability of candidates appointed to the Court of Justice of the European Union. The Panel has elaborated upon the Article 253 TFEU requirements, taking six considerations into account in their assessment: i. legal capabilities; ii. professional experience; iii. ability to perform duties of a judge (or Advocate General); iv. language skills; v. ability to work in a team in an international environment in which several legal systems are represented; and vi. whether their independence, impartiality, probity and integrity are beyond doubt.1 In a 2018 report, the Panel stated that ‘[i]t considers all professional paths in the field of law to be equally legitimate to apply for the office of Judge or [AG]’, ‘in particular, those of judge, university professor, jurisconsult, lawyer or senior official specialised in the field of law.’2 The Panel is further elaborated upon in Part I, including through its latest report published in January 2020. To further assist in understanding the nature of Advocate General appointments in the EU, a study was undergone into the law and practice at the national level related to ECJ appointments (Part II and the Tables in the Annex), and also into the characteristics of the profiles of the AGs that have been successfully appointed to date (Part III).

This survey reviews several approaches of HPDM from many research groups world wide. Modern computer hardware supports the development of high-performance applications for data analysis on many different levels. The focus is on modern multi-core processors built into today's commodity computers, which are typically found at university institutes both as small server and workstation computers. So they are deliberately not high-performance computers. Modern multi-core processors consist of several (2 to over 100) computer cores, which work independently of each other according to the principle of "multiple instruction multiple data'' (MIMD). They have a common main memory (shared memory). Each of these computer cores has several (2-16) arithmetic-logic units, which can simultaneously carry out the same arithmetic operation on several data in a vector-like manner (single instruction multiple data, SIMD). HPDM algorithms must use both types of parallelism (SIMD and MIMD), with access to the main memory (centralized component) being the main barrier to increased efficiency.

Submission to Law Commission's Simplification of the Immigration Rules public consultation.

This White Paper identifies shortcomings in the current federal child welfare financing system, and recommends changes for improvement. It calls for a funding system that allows effective implementation of child welfare laws by government at the state and federal levels. It also recommends required longitudinal independent studies of each major program receiving federal funds and a specified appropriation for that purpose. Such empirical testing would include sunset dates terminating each program where data fails to warrant continuation. Such sunset proceedings are commonly used in evaluating regulatory agencies in many states. Based on the studies they compel, programs that do not perform will be discontinued and those that do may be continued, expanded and replicated in analogous settings. The understandable reticence to expend monies on social welfare among many in Congress should be assuaged by that assured accountability. Nelson Mandela was famously quoted as observing, “There can be no keener revelation of a society’s soul than the way in which it treats its children.” But federal child welfare spending is a step above such general humanitarian sentiments. This is not funding for children in general. Rather, it is funding to protect and promote the well-being of those who are more than our children in a metaphorical sense. These children have been removed from their homes and their parents and are in state custody. We delegate their care to our publicly appointed and paid judges who serve as their legal parents. And their seizure by the state and their subsequent fate is largely determined by laws enacted by our elected officials and funded by us through mandatory taxation. For those who politically cite “family values” as a basic moral tenet, the status that these children hold as a direct legal part of our “family” makes their treatment a basic test of the bona fides of that stated value.

In August 2017, the Supreme Court of India’s landmark judgment in Puttaswamy v. Union of India affirmed that the right to privacy is a fundamental right under the Indian Constitution. In Puttaswamy v. Union of India, the various opinions have observed that informational privacy is an important aspect of such privacy in this day and age. As arguments were made in this case, the Ministry of Electronics and Information Technology (MEITY), Government of India also set up a Committee of Experts to identify key data protection issues in India and recommend methods of addressing them. MEITY and the Committee of Experts have now issued a white paper which recognises the need for comprehensive data protection regulations that incorporate established data protection principles. Public comments and consultations have been called for on the basis of this paper, as we gear up to build on the fundamental right to privacy and put in place strong data protection laws to protect personal data. In this paper we analyse the only existing ‘comprehensive’ data protection rules in India, i.e. the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“Rules”), issued under the Information Technology Act, 2000 (“IT Act”). The paper examines the provisions of the IT Act and the Rules that provide for the protection of personal data, the kind of personal data that they apply to, as well as some of the criticisms of these provisions and their enforcement.

The fate on the planet replies on implementing sustainable practices in all sectors of life mainly environmental. Lebanon face a shortage of more than 1,300 MW production, so renewable energy can help lessen the load. The country is in need of a new policy to solve the crisis, but it is crippled by political deadlock. As the public became more aware of the environment, they started to demand more eco-friendly energy sources. Renewable energy is a valid option, but storage is a problem for practical reasons. Capacitors or batteries might offer a plausible solution for the threat of inconsistent supply. Real time experiments have proven that renewable energy sources (wind, hydraulic and solar) can generate considerable amounts of clean energy that can supply the needs of Lebanon and compensate the shortage with minimal pollution. It is recommended that the government start to consider these options as viable solutions for the energy crisis.

Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War. Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment. But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending. In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery. This crucial authority was the federal government’s war power. Stories of vindication and of new beginnings are not wrong. But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace. The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.

The office of Director of Public Prosecutions and Public Protector (hereinafter referred to as the DPP and PP‘‘) are public office. They are one of the most profound pillars in the maintenance of Law and order in any society. The offices of the Director of Public Prosecutions and Public Prosecutor are created by the Constitution respectively as one of the Constitutional offices for the benefit of republic‘s interest in carrying out prosecutions of criminal offenders and Defending People‘s rights, rule of law, transparency and accountability in the courts of Law. Articles 180(1) and 243(1) of the Constitution of the republic of Zambia (hereinafter referred to as CAP 1‘) establishes the office of the DPP and The Article provides; There shall be a Director of Public Prosecutions who shall be appointed by the President, subject to ratification by the National Assembly1.In exercise of its duties, it is most certainly clear that the decision of whether or not to prosecute is not an easy one to make. It is very challenging as there is no concise authority for a prosecutor to be guided by in reaching a decision as whether to mount a prosecution or not. The Constitutional Position of the powers of the DPP is such that no authority other than itself can order the office and the office holder to prosecute a person.As per Constitutional provision, the DPP is the Chief Public Prosecutor of the Government of the Republic of Zambia and his role is limited to the Constitutional functions of advising and controlling Criminal prosecutions.This research paper will propound on reviewing the Constitutional powers of the DPP in relation to the entering of a Nolle Prosequi. The paper will achieve this by walking the reader through a series of fundamental topics within and around the office of the DPP in relation to its establishing and regulatory Statues. In the recent past, this public office‘s tenets have come to the media attention of citizenry quite often and this has risen what has somewhat been a dormant eye on what the office is and its significant and in particular, its powers and discretions in relation to a Nolle Prosequi. In effect, after such review, this research paper 1. Article 180(1) of the Constitution of the Republic of Zambia 2016, CAP1, p.75 8will provide recommendations how best the sacred office of the DPP can better perform its Constitutional powers in relation to the entering of a Nolle Prosequi

German Abstract: Das Bundesministerium der Justiz und fur Verbraucherschutz (BMJV) hat am 17. April 2018 seinen Referentenwurf zur Umsetzung der Richtlinie (EU) 2016/943 zum Schutz von Geschaftsgeheimnissen vor rechtswidrigem Erwerb sowie rechtswidriger Nutzung und Offenlegung veroffentlicht. Das vorliegende Discussion Paper nimmt eine rechtliche Analyse der Konformitat des Referentenentwurfs mit der Richtlinie vor und macht uber diese rechtstechnische Frage hinaus auch Verbesserungsvorschlage. English Abstract: The German Ministry of Justice releases on the 17th of April 2018 a bill proposal regarding the transposition of the directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The present Discussion Paper provides for a legal analysis of the conformity of the proposal with the directive and makes above this technical analysis some suggestion for improvement.

The State Con-Con Papers is a collection of J.H. Snider’s 47 short essays on the history, democratic function, and politics of the periodic state constitutional convention referendum, which is mandated by 14 U.S. state constitutions. The essays, organized chronologically, cover four of the most recent referendums: Hawaii (2018), New York (2017), Rhode Island (2014), and Maryland (2010). In each of these four states, the convention referendum is the only constitutional mechanism that allows the people — the sovereign — to bypass the state legislature’s gatekeeping power over constitutional amendment. The title, The State Con-Con Papers, draws an analogy with The Federalist Papers, a famous collection of newspaper commentaries that discuss the proposals generated by America’s 1787 constitutional convention.

Part of this paper will be a general analysis of the concept of euthanasia and how the current legal situation on euthanasia is presented in Albania. The selected methodology for this paper refers to theoretical analysis method, which attains the definition and the analysis of national and international legal framework regarding to this subject and the reflection of the scientific and academic opinion. I judge that the theme presents a special interest in the development of academic thought in this field.

This paper was prepared in support of the mandate of Working Group III to consider the possible reform of investor-state dispute settlement (ISDS) for reasons of independence and impartiality. It outlines the deep flaws in the current design of ISDS on this issue and offers ideas about reforms to incorporate essential safeguards.

Various reasons explain why Europe lags behind other jurisdictions in Empirical Legal Studies, especially regarding judicial decision-making. One of them is a scarcity of field data, even on the highest tiers of adjudication. Civil law jurisdictions differ markedly from their common law counterparts in the emphasis they place on individual judges. Hence very little empirical data is available on how courts are composed and how that composition changes over time. The present project attempts to change that by easing access to such data and thus lowering the threshold for empirical studies on the composition of the judiciary. It creates a resource for Empirical Legal Scholarship in order to start closing a research gap and to inspire more European scholars to engage with the empirical aspects of civil law adjudication. Several thousand pages of German court documentation were digitized, transcribed into machine-readable tables (ready to be imported into statistics software) and published online. To explore new avenues for sharing public domain data, they were also modeled as linked open data and imported into a prominent data repository.

The ethics of refugee protection is not an ethics of assistance to needy people, but an ethics of the prohibition of tort, namely, in particular, the violation of human rights. This is reflected in the positive refugee law only inadequately, because here is not the damage in the fore-ground, from which people flee, but the reasons why they are mistreated by persecutors. The damage-oriented approach clarifies the reasons why persons in need for protection who have already reached the territory of the country of refuge can rely on a subjective right not to be exposed to the dangers they have fled from, while refugees outside the territory can in principle only appeal to the compassion and humanity of possible helpers. However, the boundary between "inside" and "outside" shifts according to the expansion of the de facto sphere of power of the acting person or state. This may also create a legal position for persons who are rescued by a ship at sea or whose living and travel conditions are essentially determined by the power of a state outside its territory.

Alpha Phi Alpha Fraternity, Incorporated was founded on December 4, 1906 at Cornell University in Ithaca, New York. Since its inception, it has directly, through various initiatives, and indirectly, through the work of its members, been critically involved in African American's quest for civil rights and social justice. This paper lays bare that history, contemporary issues that the Fraternity should tackle, social justice partnerships the Fraternity established under General President Mark S. Tillman's administration, and articulated the internal dynamics the Fraternity must address in order to become an effective social justice change agent as well as concrete steps it can take, top to bottom, to be more deeply engaged in social justice.

The importance of documentary evidence in a legal proceeding cannot be over-emphasized. They serve as the best form of evidence in the proof of a party’s claim before the court. A document will be admissible in evidence only if it is admissible in law and is relevant to the facts in issue. The general position of the law is that a document that fails the test of admissibility becomes inadmissible in evidence and will not be reckoned with in determining any issue for consideration before the court. However, a critical evaluation of case-laws in Nigeria revealed that in some circumstances, exceptions abound to this general position under the law of evidence. Notably, the circumstances before the courts in Akinduro v Alaya and Braimoh Akinola vs. Vice Chancellor, University of Ilorin & ors presented workable exceptions to this general position. The paper found that the effects of these exceptions are that documents rendered inadmissible in a particular suit do not become utterly useless and same may still be admissible in prove of a separate purpose in the proceedings. Hence, this paper argued against the “absoluteness” of the general position under the law of evidence that a document rendered inadmissible is totally inadmissible in the same proceeding, the paper presented exceptions to the absoluteness of this general principle of law, and concluded that there is in existence circumstantial exceptions to this general principle.

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule - something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

English translation of the Policy Paper "Integration of Mediation into Ukrainian Court System" is available at: http://ssrn.com/abstract=3054519. Ukrainian Abstract: Звіт підготовлено Тетяною Кисельовою у рамках проекту Ради Європи «Підтримка впровадженню судової реформи в Україні» з метою розробити комплексні рекомендації, які слугуватимуть основою для подальших дій щодо інтеграції медіації в судову систему України відповідно до стандартів Ради Європи. Цей звіт базується на результатах наукового дослідження про перешкоди розвитку медіації в Україні, яке автор здійснював у межах пост-докторської програми ім. Марії Кюрі впродовж 2016-2017 років на базі Туринського університету, Італія. Звіт складається з аналізу поточної ситуації в сфері медіації в Україні, інформації щодо основних дієвців (стейкхолдерів) процесу впровадження медіації, аналізу досягнень пілотних проектів з медіації в судах України, аналізу можливих сценаріїв інтеграції медіації в судову систему та рекомендацій для подальших дій. English Abstract: This study is prepared by Dr. Tatiana Kyselova and aims at comprehensive policy guidelines for planning further actions with regards to integration of mediation into the Ukrainian court system in line with the Council of Europe mediation recommendations. This report is based on the findings of the empirical case-study of mediation in Ukraine which was conducted by the author as a Marie Curie postdoctoral fellow in 2016-2017. The report offers analysis of the current situation, main stakeholders of mediation, piloted court mediation schemes, possible scenarios of mediation integration into the court system, and recommendations for further actions. The main findings of the study are as follows. Given the specific socio-political context in Ukraine and relative cost- and time-efficiency of Ukrainian courts, integration of mediation into the court system will achieve better results if it is soft, gradual but quick - beginning from the voluntary schemes of court mediation and decentralized professional self-regulation with minimum state involvement. Soft integration of mediation within the courts should be reflected in the law on mediation and procedural codes expected to be adopted by the Ukrainian Parliament in 2017. All the models of court mediation piloted in 1997-2016 have potential for further development and mediation regulation should leave doors open to any of these models. The prospective law on mediation should encourage an experimental approach based on pilot court mediation schemes that are continuously monitored and may lead to the possible introduction of mandatory and more centralized elements in the future. It is suggested that the Ukrainian mediation community should primarily be responsible for coordinating and promoting the integration of mediation within the court system. It should be supported by the international community in such a development including projects to gain the support of the judiciary and the political elite; joint projects with the courts to test court mediation schemes; strategy development and coordination of efforts with lawyers and other stakeholders; drafting of mediation legislation; development of quality control, professional training and ethical standards for mediators.

One of the themes which resonate throughout the new treatise, Correctional Health Care: Practice, Administration, and Law. Cohen, Fred, Ed. 2017, is the rich legacy of the landmark 1976 Supreme Court Prisoner Rights case, Estelle v. Gamble. A contributing authority in this compilation on prisoners’ health care, David L. Thomas, MD, JD, EdD, describes the case’s legal and ethical game changing significance. Estelle led to a “paradigm shift” in prisoners’ constitutional rights which guaranteed under the 8th amendment that prison officials provide inmates access to medical care in accordance with professional medical opinions. Before Estelle, Dr. Thomas, who writes on chronic care, describes the delivery of prisoner’s health care as a function of and the primary prerogative of security services which offered mostly “acute episodic care.” This was a unique constitutional protection, not even available to the general public, and it required prison and medical authorities to examine the quality and delivery of inmate healthcare in this growing field. In light of this paradigm shift, Correctional Health Care: Practice, Administration, and Law systematically discusses the many ethical, administrative, legal and clinical issues which health providers require to meet the standard of care. One of the book’s important contributions is its emphasis on the deep interrelationship or “semipermeable membrane” which connects community health and prisoner health. While prisoners have a guaranteed constitutional right unmatched in the general population, the coordination of health services in correctional facilities and the community, and the importance of the ACA in the community are stressed. Despite the fact that states may not use federal funds for incarcerated persons, apart from long hospitalizations, the book emphasizes the significance of the health care coordination in the community. According to Professor Cohen, this has strong implications for attempts to reduce recidivism.

Like the literary device of Shakespeare’s play within a play, the book by James R. Acker, Lawlemmas; In Search of Principled Choices in Law, Justice, 2016, uses the very same literary device to show a class lecture and debate within a class lecture and debate. The medium allows readers and students to see how other students debate and think about practical legal and ethical controversies like race, insanity, juries, free speech, college privacy rights, euthanasia, confessions, and the death penalty. In the play within a play device, the audience watches an audience watch a play and sees how they respond. This forces them to think about themselves as participants as well as observers. It increases the power of the narrative because the reader observes others engaged in the same multi-faceted debates, that they themselves are pondering. The students have a vicarious choice between varying viewpoints not quite fixed in law and subject to intense debate, before analyzing their own position. While the approach of the book is pedagogical, to stimulate debate while reading others’ opinions, any reader of this volume and its accompanying references will benefit from the legal and ethical debates on ethical legal dilemmas. The book will refresh the scholars’ and practitioners’ grasp of how new and how unresolved these issues continue to be.

Legal outsourcing, which is a practice increasingly used by law firms in the United Kingdom and the United States to transfer work to foreign companies or firms in countries such as India or the Philippines, is still not very common among Italian companies and law firms. This is primarily due to the restrictions and limitations set forth by the law for the practice of the legal profession, which is strictly regulated. Another contributing factor is that Italian is the official language spoken and used in Italy, and it is therefore unlikely that any legal services could be effectively performed by workers whose native language is not Italian. The outsourcing of legal services is not specifically regulated by Italian law; instead, reference must be made to the general principles set forth in the Civil Code for the execution of service contracts, autonomous work, and intellectual professionals. It also is necessary to take into account the rules set forth by the National Bar Association in the Deontological Code, which applies to lawyers and law firms.

An examination of the scope of the relevant provisions of the Maldives Defamation Act, Law on the Protection of Reputation and Freedom of Expression 2016 (Maldives), in providing protection (or otherwise) to journalists when exercising their right to freedom of expression.

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?"The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime would have at its core a new competition-based standard that, except in limited circumstances, would require that the FCC's regulatory activities be tied to findings of consumer harm resulting from lack of sufficient competition. The FCC's authority to adopt broad anticipatory rules on an ex ante basis would be substantially circumscribed, and the agency would be required to rely more heavily than is presently the case on ex post adjudication of individual complaints alleging specific abuses of market power and consumer harm. Some aspects of the FCC's current jurisdiction, such as privacy and data security regulation, might be transferred to the FTC in light of the FTC's institutional competence in these areas.

Family courts are not likely to disappear, as they currently constitute the largest proportion of trial court filings in most states. It appears as though family courts have become an emergency room for family problems. Thus, we need to enhance our efforts to improve the family justice system. In order to revamp family courts most effectively, there must be a focus on the creation of unified family courts that are grounded in therapeutic jurisprudence and the ecology of human development. This framework allows for a more responsive and holistic approach to families' legal and underlying nonlegal needs. The goal of a unified family court is to aim to improve the lives of families and children through judicial action, informal court proceedings, alternative dispute resolution, and the provision of appropriate social services.Key Points for the family court Community:-The need for family court reform;-An underlying theoretical foundation to guide the Family Court reform process;-Employing therapeutic jurisprudence to ensure an outcome that can positively affect the lives of the families and children involved in each legal proceeding;-Utilizing the ecology of human development to assist with obtaining a holistic view of families' legal and underlying nonlegal issues;-A blueprint to create a unified family court to provide an effective, efficient, comprehensive resolution to each family's dispute.

The Panama Papers refers to a massive leak of information encompassing more than 11 million documents involving more than 200,000 offshore entities. The leak originated in Panama. Some of the documents involve transactions as far back as the 1970s. Numerous wealthy individuals, including top government officials from many countries, have been implicated. The release of information and documents has led to several resignations and numerous lawsuits. The end of litigation is not in sight, as lawyers and government agencies in several countries continue to read and digest the information. Although there is nothing illegal per se about having offshore entities, some such entities have been used to hide assets, evade income taxes, launder money and evade sanctions. The whistleblower who leaked the information to Süddeutsche Zeitung, a German newspaper, called himself John Doe to maintain anonymity. He leaked the information because of his strong distaste for income inequality and because of his view that there were many injustices being perpetrated by some of the entities and individuals who were availing themselves of the entities. This paper discusses some of the underlying ethical issues that lurk beneath the surface of most discussions about hiding assets and income offshore. The discussion will focus on the ethics of parking profits (or hiding assets) offshore, tax evasion, bribery, and whistle blowers. This paper also includes links to more than 80 studies on tax evasion and 11 studies on bribery.

The previous two papers in this volume identified and commented upon a turn in case law towards narrowing down social rights for EU citizens while giving more attention to (nationalist) protective reflexes of Member States. Both papers criticize the type of solidarity that results from this case law; it marginalizes the weakest members of society, and excludes them from free movement rights. The case law raises doubts on the relevance of the citizenship provisions in the EU Treaties and the fundamental nature of the status of EU citizenship, and accordingly on the role of the Court of Justice of the European Union in the debate on welfare tourism. This paper concentrates on the latter. It will rely on and refer to the previous two papers where relevant. The questions underlying this paper are: Is the Court sensitive to the political context of fear for benefit tourism?1 Is the Court giving up its role as an engine for further integration by following the lead of the EU legislator?2 The paper will take a closer look at the arguments of the Court in the cases Brey, Dano and Alimanovic3 with the purpose of finding out whether it is possible to detect arguments underscoring the Court’s sensitivity to the political climate.

Mergers and acquisitions (M&A) are critical mechanisms for corporate growth and potentially for increased shareholder returns. The reality, however, often does not live up to the promise, as is borne out by empirical data on the high incidence rates of M&A under-performance. At present in Australia, directors and executive management, particularly of the acquiring company, have considerable latitude to put at-risk shareholder value via M&A without any meaningful pre-event restraints or post-event sanctions (and with the benefit of the Business Judgment Rule defence). The old adage caveat emptor (‘let the buyer beware’) still holds true for buyers, but when it comes to ensuring that their own shareholders’ interests and capital are properly protected, there are few formally imposed ‘checks and balances’. Additionally, in terms of voluntary controls, there is little clarity on what are the acceptable, key activities and behaviours of the directors of the acquiring company, that represent responsible standards of conduct. The initial question to be considered is whether there is a discernible set of ‘right practices’ that provide a reference set of benchmarks for non-executive directors to know whether they are exercising the necessary care, diligence and skill in selecting and overseeing transactions. Looking from the ‘outside in’, the corollary is ‘How do shareholders in the acquiring company have some visibility and assurance that their executive management team and board are exercising (or have exercised) sufficient due diligence (in the broadest sense of the word)?’ The challenge thus arises as to how to describe the ‘right practice’ stewardship that should be exercised by ‘reasonable directors’ of the acquiring entity to manage the risks and performance of transactions – before, during and after acquisition. This article is the first of a series of four that focus on identifying and describing ‘right governance’ i.e. the required level and mix of actions and responsibilities of directors of the acquiring company, necessary for protecting the interests of their shareholders. To carry out this research, and to shed light on these gaps in knowledge and required practices, the extant commercial, governance and legal literature relating to M&A practice has been studied to understand what level of clarity it provides to non-executive directors. (This has been described in shorthand form as the t-ought for ‘theoretical ought’). Subsequently, opinions and experiences have been elicited from a cross-section of non-executive directors and Chairmen, via targeted interviews (‘grounded research’) to capture their views on good board oversight of M&A practice. (This has been described in shorthand form as the d-ought for ‘directors’ ought’). What has emerged as the board-level themes from seasoned directors have been compared to the extant literature to examine how these align and whether there are any key gaps or contradictions. In most cases, there is alignment, although the interviewed directors’ views have crystallised what in the literature could best be described as ‘un-consolidated ideas’ based on ‘an extrapolation of managerial practices’, as the body of documented knowledge is generally not targeted at board members. From these comparison has arisen an emergent theory regarding ‘right practice’. The emergent theory points to six key themes that those directors interviewed believe make a difference to deal performance: (1) the Board’s degree of strategic thinking (‘Clear strategy upfront’); (2) planning and preparation (‘Early preparation and planning’); (3) the extent of board members’ cultural due-diligence (‘Proper understanding of culture’); (4) robust business-case scrutiny and investment assessment (‘Rigorous testing of the investment business case and funding strategy’); (5) their focus on tracking the delivery of the targeted benefits (‘Effective monitoring post transaction’); and (6) the quality of their mutual challenge and critical debate (‘Well-chaired board with constructive challenge’). This process of comparison of ‘t-ought’ versus ‘d-ought’ has indicated that these initial findings have merit and should be regarded as an emergent theory. The paper that follows is the first of a four-part series: • Paper 1 covers the commercial or practitioner M&A literature to seek what guidance this provides directors involved in transactions and to uncover any material gaps • Paper 2 in similar fashion covers governance literature, again to seek guidance and to uncover any material gaps • Paper 3 covers the findings of director interviews flowing from PhD research, regarding right M&A governance • Paper 4 covers conclusions. Paper 2 available at https://ssrn.com/abstract=2880427

Mergers and acquisitions (M&A) are critical mechanisms for corporate growth and potentially for increased shareholder returns. The reality, however, often does not live up to the promise, as is borne out by empirical data on the high incidence rates of M&A under-performance. At present in Australia, directors and executive management, particularly of the acquiring company, have considerable latitude to put at-risk shareholder value via M&A without any meaningful pre-event restraints or post-event sanctions (and with the benefit of the Business Judgment Rule defence). The old adage caveat emptor (‘let the buyer beware’) still holds true for buyers, but when it comes to ensuring that their shareholders’ interests and capital are properly protected, there are few formally imposed ‘checks and balances’. Additionally, in terms of voluntary controls, there is little clarity on what are the acceptable, key activities and behaviours of the directors of the acquiring company, that represent responsible standards of conduct. The initial question to be considered is whether there is a discernible set of ‘right practices’ that provide a reference set of benchmarks for non-executive directors to know whether they are exercising the necessary care, diligence and skill in selecting and overseeing transactions. Looking from the ‘outside in’, the corollary is ‘How do shareholders in the acquiring company have some visibility and assurance that their executive management team and board are exercising (or have exercised) sufficient due diligence (in the broadest sense of the word) over transactions?’ The challenge thus arises as to how to describe the ‘right practice’ stewardship that should be exercised by ‘reasonable directors’ of the acquiring entity to manage the risks and performance of transactions – before, during and after acquisition. This paper is the third in a series of four that focus on identifying and describing ‘right governance’ i.e. the required level and mix of actions and responsibilities of directors of the acquiring company, necessary for protecting the interests of their shareholders. To carry out this research, and to shed light on these gaps in knowledge and required practices, three extant sources of knowledge – commercial, governance and legal literature – relating to M&A practice have been studied to understand what level of clarity it provides to non-executive directors. (This has been described in shorthand form as the t-ought for ‘theoretical ought’). It was hoped that this triangulation exercise would provide clear answers and an evidence based view as to what is right governance over M&A. it turned out that this triangulation exercise indicated a sizeable kludge gap at the intersection points. Subsequently the opinions and experiences have been elicited from a cross-section of non-executive directors and Chairmen, via targeted interviews (‘grounded research’) to capture their views on good board oversight of M&A practice. (This has been described in shorthand form as the d-ought for ‘directors’ ought’). What has emerged as the board-level themes from seasoned directors have been compared to the extant literature to examine how these align and whether there are any key gaps or contradictions. In most cases, there is alignment, although the interviewed directors’ views have crystallised what in the literature could best be described as ‘un-consolidated ideas’ based on ‘an extrapolation of managerial practices’, as the body of documented knowledge is generally not targeted at board members. From these comparisons, has arisen an emergent theory regarding ‘right practice’. The emergent theory points to six key themes that those directors interviewed believe make a difference to deal performance: (1) the Board’s degree of strategic thinking (‘Clear strategy upfront’); (2) planning and preparation (‘Early preparation and planning’); (3) the extent of board members’ cultural due-diligence (‘Proper understanding of culture’); (4) robust business-case scrutiny and investment assessment (‘Rigorous testing of the investment business case and funding strategy’); (5) their focus on tracking the delivery of the targeted benefits (‘Effective monitoring post transaction’); and (6) the quality of their mutual challenge and critical debate (‘Well-chaired board with constructive challenge’). This process of comparison of ‘t-ought’ versus ‘d-ought’ has indicated that these initial findings have merit and should be regarded as an emergent theory. The paper that follows is the third of a four-part series: • Paper 1 covered the commercial or practitioner M&A literature to see what guidance it provides directors involved in transactions • Paper 2 in similar fashion covered governance literature, again to seek guidance • Paper 3 covers the research findings flowing from director interviews into what is right governance (this paper is delivered in two parts, 3A and 3B, which are explained further below) • Paper 4 covers conclusions. Part A of the third paper follows below and covers directors' views of the need for board involvement in a range of M&A activities.

Law and popular culture is an exciting topic at the intersection of law and humanities. This booklet, the result of a Maastricht Research Based Learning project, contains five papers that reflect upon alternative perceptions of justice in popular culture. The papers deal with the law of surrogacy in soap operas, law and musicals, rights for robots in science fiction, the portrayal of law in Erin Brockovich and an inquiry into the principles of contract law in children’s cinema.

Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Lack of agent accountability encourages the patterns of fraud that caused the financial crisis in which forty-five percent of the world’s wealth disappeared, and which continue to be repeated. The article reveals how making the corporate form more opaque has led to the destruction of corporate conspiracy charges for individuals and now the implosion of securities law as a method of disciplining agents. The article concludes with a call for both watching the paper dragon and the need to track the dancers who move its feet.

This comment is submitted in response to the India Department of Industrial Policy and Promotion’s Discussion Paper on Standard Essential Patents and Their Availability on FRAND Terms.

The Public Procurement Act (PPA) 2011 and the Public Procurement Regulations (PPR) 2013 make up the current main legal framework and the latest outputs of the procurement reforms that Tanzania has undertaken since 1990s. More or less like its predecessors, the PPA 2011 has not enabled the government (the procuring entities) to achieve value for money in terms of economy, efficiency and effectiveness. Based on an intensive scholarly research work (draft paper), the author submits that there is a major systemic weakness of the law which require policy and legislative actions to unlock the potential of public procurement to delivery of the best value for the limited public monetary resources. The author recommends major reforms to the law centered on redefining the policy goal of public procurement along with setting up a coherent legal system consistent with the policy goal.

Do Member States who oppose directives in the Council comply worse than those who don’t? Council level opposition is perceived to be a clear proxy for a national conflict with European legislation and subsequent poor compliance is dubbed “opposition through the back door”. However, previous research on this issue is predominantly quantitative and only deals with transposition timeliness or ensuing infringements from the Commission. This research undertakes a distinctly qualitative approach to compare compliance with the Patients’ rights Directive, in Austria (which blocked the Directive), Denmark and the Netherlands. Additionally, we also examine the impact of the misfit argument, since the Danish healthcare system’s misfit with the Directive is greater than that in Austria or the Netherlands. This study is based on expert interviews with representatives from the major institutions in Austria, and literature sources on compliance in Denmark and the Netherlands. Our findings indicate that Council level opposition does not predicate worse compliance. Furthermore, although Denmark’s system has greater difficulty implementing the Directive, compliance issues were limited to specific provisions. The study is informative of compliance with European Union action in healthcare policy and the impediments the Union faces, as it attempts to expand its role into this core national competence.

The purpose of this Article is to examine the legislative response of the United States to human trafficking. Section I discusses the factors most frequently cited as contributing to the problem. Section II examines the international authority for interdicting trafficking. Section III examines the Unites States' response to the problem. It discusses the context in which the public awareness of the issue of trafficking has evolved and the culmination of this awareness in the enactment of federal legislation to address the problem. It also briefly examines the strategies mandated by the legislation on a national and international level and the ongoing role to be played by nongovernmental organizations in implementing this legislation by assisting with the identification of victims of severe forms of trafficking and provision of services to them. Section IV of this Article looks at some of the accomplishments of the legislation to date and lessons to be learned from its successes and its limitations.

As 3D printers become increasingly functional and accessible, various areas of the law will be ill equipped to handle the ramifications of such futuristic technology. This technology will sneak up on current federal firearm laws and threaten to render any attempts at gun control obsolete. The lack of regulations to adequately police the 3D printing of weapons will have extreme effects on civil and criminal rights and liabilities. This note gives some background on the 3D printing process, provides an explanation of digitally manufactured firearms and discusses the current federal regulations at issue. In addition, it examines various approaches to and inherent flaws in regulating 3D printed weapons. The note also focuses on the policy implications and the heightened concern created with its application to criminal activity. Finally, it recommends an approach to 3D weapons manufacturing that balances the most critical individual and public policy concerns regarding this advanced technology.

Whistleblowers play an important role in fighting corruption, in protecting the public and the environment from harm, and in providing accountability for the violation of legal norms. When an individual blows the whistle on alleged wrongdoing, she may suffer severe financial consequences. The law recognizes the social good that can come from whistleblowing by providing some protection for them and encouraging such conduct in a variety of ways. This paper provides a definition of whistleblowing, describes five distinct ways that the law encourages it, and identifies some of the key legal concepts found in the law of whistleblowing, including the tension between whistleblowing and other legal norms.

The purpose of this paper is to establish that the Union is under an obligation to respect the rule of law when it acts externally, and second, to map out the outline of a research agenda on what exactly the rule of law might mean when operationalised in one field of EU external relations characterised by a wide variety of administrative activities i.e. the EU wider neighbourhood (Stabilisation and Association Process and European Neighbourhood Policy). Furthermore, the paper – throughout its development – will try to highlight that the power exercised by the administration in these two policies is significant and often carried out in an unregulated manner; thus the need to research the operationalisation of the rule of law in guiding the Union’s administrative power in these two policies. The paper will proceed as follows. First, it will analyse the obligation to respect the rule of law when the Union acts externally. Secondly, it will provide the reader with a very brief definition of what it means to respect the rule of law in the EU internal legal order. Thirdly, it will explain the choice of the case study. Finally, by using as a starting point the meaning of the rule of law internally the paper will attempt to provide a preliminary operationalisation of what it means to respect the rule of law when the Union develops and implements its action in the wider neighbourhood.

When emergency provisions in the constitution are abused, they pose a threat to the legal order. Citizen mobilization has been proposed as a mechanism to constrain the executive from such abuses of power. Specifically, if the executive oversteps its authority, the opposition can overthrow the government by mobilizing citizens against the power maximizing behavior. Despite the abundance of contributions on citizen's activism, constitutionally protected resistance has been neglected. This paper covers the gap by proposing a definition of constitutional resistance, which distinguishes it from other forms of disobedience and protest. Moreover, the importance of properly delineating the right is discussed and it is argued that such a right is not simply a parchment barrier. Specifically, the paper theorizes that the inclusion of the right tips the scale in favor of resisting even minor transgressions, leading to a more constrained executive power. However, if the right is not properly delineated it creates adverse incentives, jeopardizing political stability.

This paper shows that the European Union (EU) courts' case-law and general principles of EU law place the European Commission (“Commission”) under a duty to apply the Guidance Communication on Enforcement Priorities (“Guidance Paper”) in abuse of dominance cases started after its adoption. This duty includes the obligation to test Article 102 TFEU cases under the As Efficient Competitor (“AEC”) framework, as set out in the 2009 Guidance Paper. The judgments handed down by the Union courts in Intel v Commission and Post Danmark II do not alter in any way the Commission’s “self binding” duty to apply the Guidance Paper. If the Commission wishes to depart from the AEC framework, it must officially withdraw its Guidance Paper.

This contribution represents the comments of the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich (Germany), on the DG Competition White Paper of April 2008 on damages actions for breach of the EC antitrust rules. The White Paper forms part of the European Commission’s strategy of enhancing private enforcement of European competition law through damage claims. The White Paper was preceded by several comparative reports and a by Green Paper. It is likely that it will form the basis for future policy instruments in the field of private enforcement. The present contribution discusses some recurring issues of private antitrust enforcement in Europe. It proceeds to analyse eight specific legal issues that the White Paper had put forward for public comment: standing of indirect purchasers and collective redress; access to evidence; binding effect, across Member States’ borders, of decisions adopted by national competition authorities; the fault requirement as a prerequisite to civil liability; definition and quantification of damages; the passing-on defence; limitation periods; costs of damages actions; and, finally, the interaction between leniency programs and actions for damages. The paper advocates excluding the passing-on defence, and instead implementing a separate mechanism for dividing the overcharge between purchasers on different levels of the distribution chain. Overall, we welcome the proposal to give private damage claims a more prominent role as an instrument for enforcing the competition rules in Europe. Nevertheless, the enforcement of the widely harmonised European competition rules by means of national rules on civil procedure might create tensions with traditional legal principles in some Member States.

On April 2, 2008 the European Commission published the White Paper on 'Damages actions for breach of the EC antitrust rules proposing to the member-states the adoption of concrete measures as regards a number of issues pertaining to the satisfaction of relevant claims, such as standing, access to evidence, proof of infringement, fault, definition of damages etc. Most notably, however, the Commission included in its list of proposals the rule that an infringement finding by an NCA decision constitutes irrebuttable proof of that infringement. Consequently, it fulfills the requirement of illegality, pre-requisite for liability. Even more interestingly, this rule, about the binding effect of the NCA infringement finding, extends to all member-state national courts deciding subsequent ('follow-on') claims for civil damages of the victims of such infringement. This article aims to define the scope of application of the proposed EU-wide binding effect rule as this is presented in the White Paper and to discuss some of the issues expected to arise following its adoption by national legislators (either on a voluntary basis or, most probably) following an eventual relevant provision in the forthcoming EC Draft Directive for Antitrust Damages.

On June 13-15, 2014, the Second National Symposium on Experiential Education in Law took place in Greensboro, North Carolina. The Alliance for Experiential Learning in Law and Elon University School of Law hosted the symposium, with the support of Northeastern University School of Law. Presenters included professors and practitioners across multiple disciplines, including business, medicine, and architecture, and they shared their insights about the value of experiential education in their fields. Working groups from the Alliance for Experiential Learning in Law also presented their findings and distributed a set of working papers, which eventually culminated into this report. The report covers research in six areas of experiential learning, including defining a vision and mission for the experiential education movement, tracking the developing rhetoric of experiential education, studying cost and sustainability measures for experiential legal education, integrating experiential learning into the law school curriculum, establishing creative initiatives at law schools, and integrating with the profession. The whole article is posted and reflects the work of a number of authors. Professors Barry and Paulsen wrote Part VI, The Role of Practitioners in Experiential Education. That section discusses their assessment of the contributions practitioners can make in achieving law school goals for student learning.

Considerable speculation has surrounded the impact of the Good Friday Agreement’s provisions on human rights upon the Conservative Government’s proposals for repeal of the Human Rights Act 1998. This Policy Paper seeks to demystify this aspect of the debate over the future of the Human Rights Act, examining the terms of the Good Friday Agreement as an international treaty and peace agreement and explaining its interrelationship with both the Human Rights Act and the Devolution Acts. Once some of the hyperbole that surrounds the Agreement and its attendant domestic legislation is removed, it can be seen that the impact of the Agreement is in some regards more extensive than has to date been recognised, whilst in other respects the Agreement has less impact than some of the supporters of the Human Rights Act claim. Reform of arrangements so fundamental to governance in the UK should not be taken lightly, but at present the offhand treatment of the place of the incorporation of the European Convention on Human Rights in the Northern Ireland settlement generates just such a danger.

ABS proposals (alternative business structures proposals) to improve the method of delivering legal services, cannot solve the unaffordable legal services problem and could prevent the Law Society from doing so. This paper expresses the author’s opinion by developing the critically important relationships among: (1) the ABS question (whether relevant legislation and Law Society bylaws should be changed to allow law firms to adopt alternative business structures, such as being owned by non-lawyer investors to obtain needed financing); (2) the unaffordability of legal services problem that afflicts the majority of Canada’s population, and whether it should be solved first; and, (3) the conception of what a law society should be in order to fulfill its duties under s. 4.2 of the province of Ontario’s Law Society Act, which include: (a) “to maintain and advance the cause of justice and the rule of law”; (b) “to act so as to facilitate access to justice”; and, (c) “to protect the public interest.” The title of the law society in the province of Ontario is, The Law Society of Upper Canada (LSUC), named while part of the British colony of “Upper Canada” because it is further up the St. Lawrence River than is “Lower Canada,” now the province of Quebec. They ceased to be British colonies when Canada became a country on July 1, 1867, which was 70 years after LSUC became a law society in 1797.A critically important issue of the ABS question is, what is the needed concept of a law society — is it a support-service for the practice of law, and not just a regulator, i.e., to use a sports analogy, a provider of stadiums and arenas for new areas of practice, and a CPD/CLE coach and trainer, and not just a referee, and more often than not, merely a spectator watching part-time from the sidelines? Are its functions as a regulator of the legal profession and as a representative of lawyer-interests, in conflict, like trying to be the referee and the coach at the same time?And do the ABS investors and their advocates want to be the owners of the team (in fact, all of the teams), and in the game only for the profits, and to gain control of the legal services market by way of enfranchising strings of owned law firms that substitute an entrepreneurial duty to their owners, in place of the fiduciary duty to clients?

Introducing a more economic approach to European competition law has been a prime concern of DG Competition for the past 10 years. The Communication on the Commission’s enforcement priorities in applying art. 102 TFEU (ex 82 EC), issued in February 2009, constitutes the latest step in this comprehensive policy review. This contribution argues that, despite wording the Communication in a very cautious manner, the Commission has brought its approach to abusive exclusionary behaviour de facto into line with its more economic approach to art. 101 TFEU (ex 81 EC) and the Merger Regulation, as it shall no longer pursue conduct that is unlikely to result in direct consumer harm. This development is problematic because it does not appear compatible with the case law: effectively, the Communication overrides the Court’s position that direct consumer harm is not a requirement of art. 102 TFEU. In combination with the non-legal nature of the Communication and its theoretical vagueness, this discrepancy is further likely to engender significant legal uncertainty and endanger the uniform application of art. 102 TFEU at the national level.

Abstentionism, blank vote and invalid ballots are electoral phenomena that are statistically growing in many Countries but don´t receive much attention and when they do, they are usually treated with a strong negative bias. This article explore this issue and it is divided in three part: In the first part we analyze how the literature currently defines and treats abstentionism, blank vote and invalid ballot. We find out they are usually treated as a single and unique “non-vote area” and we propose a different approach based in a more detailed view, combining methodological individualism and imperfect rationality. In the second part we show the empirical relevance of this three types of electoral outcomes in EU parliamentary elections and in Brazilian presidential ones. In the last part, we notice a negative bias toward these electoral behaviors to which we oppose a different point of view. In this line, at the end, we propose some possible changes in electoral systems in order to better intercept voters will.

This White Paper reports on two years' work by a group convened by the Center for Advanced Study at the University of Illinois, following an invitational, national, interdisciplinary conference Human Subject Policy Conference: An Examination of the Interaction Between Human Subject Protection Regulations and Research Outside the Biomedical Sphere. We describe the pernicious effects of mission creep on the work of Institutional Review Boards, which is diverting the attention of some IRBs from critical ethical oversight in favor of often-meaningless paperwork. We make recommendations to help the IRB system focus its efforts on those research projects most in need of careful ethical review to protect human subjects of and participants in research. The recommendations include the idea that some methodologies do not need advance review and approval by IRBs and that there are procedural changes that can strengthen the core missions of IRBs. We hope that this paper will further the discussion about what reasonable procedures can be instituted to provide improved ethical protection for people who participate in research projects.

The British Columbia Law Institute began work on the Strata Property Law Project — Phase Two in summer 2013. The phase-two project builds on the consultation and research carried out in phase one of the project. It addresses legislative reform of the Strata Property Act. With the goal of promoting the development of the next generation of the act, the project’s purpose is to make recommendations in the following seven areas: (1) fundamental changes to a strata; (2) complex stratas; (3) leasehold stratas; (4) common property; (5) selected governance issues; (6) selected insurance issues; (7) selected land-title issues.The Consultation Paper on Terminating a Strata is about one aspect of the first area. It concerns what the Strata Property Act calls cancellation of a strata plan and winding up of a strata corporation, which this consultation paper labels, for simplicity’s sake, termination of a strata. Termination can be considered the end of life for a strata — the ultimate fundamental change. The timing is right to consider termination, as the earliest stratas created in British Columbia, which date to the 1960s, may soon be encountering difficult choices over repairs, renewal, or termination.The consultation paper makes 21 tentative recommendations for reform of the law. It begins by tackling the key issue of the voting threshold to authorize termination, proposing a move from the current rule of unanimous consent to a rule setting the threshold at 80 percent of all voters. From there, the consultation paper moves on to consider the notice and procedural reforms needed to integrate this new form of resolution into the Strata Property Act’s existing collective decision-making system, the measures that should be put in place to protect the interests of dissenting owners and registered chargeholders, and the appropriate transitional rule for the project committee’s reforms.

Congress’s power to secure copyright and patent is expressly granted in the U.S. Constitution’s Article I, Section 8 Intellectual Property Clause. It confers on Congress a power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." In order to better grasp the meaning of this power and the rights it is designed to secure, attention undoubtedly should be paid to that repository of American constitutionalism widely regarded to be second only to the Constitution: namely, The Federalist Papers.Such attention to The Federalist Papers is not merely a matter of historical interest, although the history is certainly interesting. Rather, it is a matter of enhancing our present day understanding of why our Founders thought copyrights and patents important and deserving of protection in our Constitution. James Madison, writing in the guise of "Publius" in Federalist No. 43 provided that work’s lone direct reference to Congress’s power to protect intellectual property rights.This paper explores what Federalist No. 43 has to say about IP rights, and the relationship of this particular number to the theory of American constitutional government contained in other Federalist Paper numbers. The paper is the fifth in a series exploring foundational principles of intellectual property rights.

There are less than three dozen American Indians who are enrolled tribal members who are tenure system law professors in American law schools. We study this group, as well as a few known tribal members who have either retired or left the academy for loftier pursuits, for purposes of identifying the profiles of tribally enrolled American Indians on the tenure track in American law schools. The object of this short paper is to advise American Indian law students and others on how to become an American Indian law professor. This paper is an update from a 2012 paper: https://ssrn.com/abstract=2058557.

When Fauziya Kassindja landed at New York’s JFK airport in 1994, she was seventeen, seeking asylum, and fleeing the brutal practice of female genital mutilation. She was also menstruating. Hours after her arrival, Fauziya was strip searched, forced to stand before a female officer “completely naked, soiled pad exposed, shamed beyond words.” She was then transferred to an off-site detention facility where she was strip- searched again. When Fauziya asked where she should place her soiled pad, the female guard responded: “I don’t know. Why don’t you eat it?” When Fauziya asked for a new pad, she was told she could ask for one the next morning. She was given absolutely nothing to stay her flow—not even toilet paper or paper towels. This was the beginning of Fauziya’s experience with immigration detention. She would remain there for sixteen months.

This submission by the Australian Privacy Foundation (APF) to the Australian Law Reform Commission (ALRC) strongly endorses establishment in national legislation in Australia of a cause of action for serious invasion of an individual’s privacy. It is appropriate to describe the action as an action in tort, or a ‘privacy tort’. The Australian Privacy Foundation (APF) is Australia's leading privacy advocacy organisation. This submission is in response to the proposals in ALRC Discussion Paper 80: Serious Invasions of Privacy. Key submissions made by the APF are as follows: (i) The most effective structure of a cause of action is that which is consistent with an intentional tort; consisting of elements that a plaintiff must satisfy with countervailing defences available to any putative defendant. There should be no requirement for the court to undertake a balancing exercise as an essential element in determining whether the plaintiff can, on his or her own case, succeed or not. (ii) The cause of action for a ‘serious invasion of privacy’ should additionally be described as an ‘interference with privacy’ for the purposes of the Privacy Act 1988 (Cth). (iii) The focus of the tort should be upon the intrusion into a plaintiff’s seclusion or private affairs (including by unlawful surveillance) and/or the misuse or disclosure of private information about the plaintiff. (iv) There is no sound legal or policy basis for limiting the scope of the action to either intentional or reckless acts rather than incorporating negligent acts. (v) There is potential for an undesirable downward ratchet effect in the concept of “reasonable expectations”: the lack of a practical remedy enables continuation of an intrusive practice without restraint, which practice reduces the level of protection that would be “reasonably expected”, which in turn reduces the scope of the tort over time. (vi) The fourth proposed element of the tort, that it is only available where the invasion of privacy is 'serious', is both unnecessary and arbitrary. (vii) There is little utility in incorporating a balancing exercise of the plaintiff’s privacy interest against freedom of expression or other broader public interest, the fifth element of the proposed cause of action. (viii) Federal, State and Territory courts should have jurisdiction to hear a serious invasion of privacy action. However, there are very strong reasons for providing the option to complainants/plaintiffs to take a ‘serious invasion of privacy’ complaint to the Privacy Commissioner. A new sub-section 13(6) should be added to the Privacy Act 1988 (Cth): ‘(6) A serious invasion of privacy under the [title of new Commonwealth Act] is an interference with the privacy of an individual,’ together with such limited consequential changes (if any) as are necessary to make the Privacy Act consistent with the new statutory action and the [title of new Commonwealth Act]. (ix) There may be a case for clarifying the law of breach of confidence even if a statutory tort were to be introduced, but some of the ALRC’s proposals are not justifiable. (x) While it is important to remove inconsistencies and promote uniformity in the the current State and Territory surveillance device and workplace surveillance laws, this must not be at the expense of reducing the level of protection of Australians against unjustified surveillance. Proposed uniform laws should apply to all existing and emerging technologies that are capable of monitoring and recording the activities of people and their data. Surveillance device laws should incorporate a mechanism for awarding compensation, or other forms of relief, to victims of unauthorised surveillance. (xi) The public interest activities of responsible journalists in investigating and reporting on matters of public interest, such as uncovering corruption, do not require a broad or vague exception for journalists. (xii) The ALRC proposal is desirable that a new APP (Australian Privacy Principle) be inserted into the Privacy Act to require an APP entity to provide a simple mechanism for an individual to request the destruction or de-identification of personal information that was provided to an APP entity by the individual. A regulator should be so empowered, preferably the Privacy Commissioner with a right of appeal to the AAT (Administrative Appeals Tribunal). (xiii) The definition of “personal information” in the Privacy Act 1988 (Cth) should be amended so as to confirm that the information will remain personal information, despite any steps to anonymise it, if there is any significant possibility that it may be re-identified in future.

Individuals and businesses make billions of payments every day in various forms. Payers have choices about what forms of payment they will make, and payees also have some flexibility on what they will accept. Different forms of payment involve different costs and benefits for both the payer and the payee. Can it be unethical to use a particular form of payment? Can a payment system like bitcoin be “evil,” as charged by Krugman (2013)? Or does it provide a means for a more trustworthy means of payment? What are the ethical implications of paying workers with one form of payment, such as a fee-laden payroll card, over another? What are the ethical implications of choosing a payment tool, such as a rewards credit card, that imposes higher costs on the merchant? The differential nature of bargaining power between the users and operators of the dominant payment networks also raise ethical questions regarding the fairness of charges in such asymmetric power situations. A payment system, like any tool, is not “evil” by itself; it is the use that matters.

This paper addresses a potential constitutional right to consume marijuana, at least in a medical context, following recent legal and cultural developments. In addition to addressing the argument based on a fundamental right to bodily autonomy and principles of federalism, it also examines policy considerations surrounding the War on Drugs. It attempts to inject humor into the analysis wherever possible.

Judge-made tests of mental capacity that determine whether a person meets the cognitive threshold to make a legally valid decision, enter into a transaction, or form a relationship hold sway over some important areas of the law. This consultation paper examines nine common-law tests of capacity, spanning tests that operate in wills-and-estates law, contract law, and family law. The consultation paper contains 31 tentative recommendations for reform. These tentative recommendations include proposals for maintaining the current common-law tests of capacity to make a will and to marry, clarifying the test of capacity to make an inter vivos gift, fine-tuning certain contractual rules that relate to mental capacity, and creating a new procedure allowing an application to court to make, alter, or revoke a will for a person who does not have testamentary capacity.

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues. The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be made about whether a particular use is fair; certainly experienced practitioners make such judgments daily. But fair use decisions are often complicated, and advice frequently depends as much on the amount of risk the user is willing to undertake as it does on the evaluation of the substantive law. Our point is not that fair use caselaw absolutely resists synthesis, but rather that the synthesis most successfully occurs at a high level of abstraction; individual actors, by contrast, need to know whether their particular plans will run afoul of the law. Legal literature has seen many attempts over the years to simplify or clarify fair use, both descriptive and prescriptive. But it would be premature to conclude that the law of fair use is or soon will be coherent and predictable. Guidelines could theoretically help in interpreting fair use, but the weight and value of guidelines depends on how they were developed.The ALRC Discussion Paper’s proposals could result in a broader fair use doctrine in Australia than in the US. Notably, fair use in Australia, as in the US, would exempt certain uses without countervailing compensation. But the proposed Australian version may embrace a greater range of commercial actors, thus altering the balance. The proposals include additional illustrative purposes; they would also permit commercial users to stand in the shoes of clients entitled to exceptions. The ALRC also proposes that contracts or contract provisions that attempt to bargain around library exceptions and certain fair use exceptions would be unenforceable. In the US, contracts concerning copyrighted materials are usually upheld. As a general rule, contract preemption does not serve to invalidate contract provisions that limit the exercise of copyright exceptions, and the doctrine of copyright misuse does so only in the most egregious of cases.Finally, in the US there is no exemption from anti-circumvention of technological access controls for such broad purposes as "exercising fair use" or "making noninfringing use." Certain narrow fair uses have been deemed exceptions pursuant to a triennial rulemaking conducted by the Copyright Office, but those exceptions must be revisited every three years.

This consultation paper examines whether British Columbia should follow the example of five other provinces and enact legislation to regulate franchising. It begins by describing the legal nature of a franchise and the different categories of franchising arrangements in use. It explores the dynamics and legal aspects of the franchisor-­franchisee relationship, and reviews the franchise legislation in force in Canada as well as the Uniform Franchises Act. American, Australian and UNIDROIT models for franchise regulation are briefly reviewed as well.The final chapter contains tentative recommendations on which readers are invited to comment. The recommendations are described as “tentative” because they are subject to reconsideration and revision following the consultation period. Following consideration of the responses to the consultation paper, BCLI will finalize and publish its recommendations in a report.

This short paper describes the legacy of the Courage/Crehan case of the Court of Justice in light of the Kone and Otis judgments and more recent developments exemplified in the German Federal Court of Justice judgment Schienenkartell V.

Qualified immunity for police officers in the United States is a broken legal doctrine that needs Congressional legislative remedy; however, police qualified immunity does not need to be eliminated. It must be reformed. Over the past 4 months of diligent and focused research, analysis, and scrutiny from diversely experienced policing officials, criminal and civil law attorneys, academicians, and community leaders, the Institute for American Police Reform has identified a fair and pragmatic standard for reforming qualified immunity. Although this White Paper discusses reform at the federal level, reform of qualified immunity for police officers should also occur at the state level and indeed, already has in several states. State level reform can include additional levers such as damage caps, indemnification policies, insurance requirements, or fee-shifting.

This comment was submitted by Nancy Chi Cantalupo to the U.S. Department of Education (ED) in connection with the public hearings announced in ED's letter regarding its comprehensive review implementing President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. (The Executive Order can be found at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/ and ED's letter at https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.) This comment includes a cover memorandum and six attached documents collectively demonstrating: (1) how the substance regarding sexual harassment in the Title IX regulations that resulted from a rulemaking conducted by the previous administration from November 2018 through May 2020 violate Title IX itself; and (2) how the process the previous administration used to engage in that rulemaking violated the Administrative Procedures Act. Because of these violations, Professor Cantalupo argues that ED should conduct a new rulemaking, propose rules that fulfill Title IX’s purposes, and give the feedback of the American public, including by those members with appropriate expertise and significant stakes in the final regulations, the serious consideration that it is due under the Administrative Procedures Act. The six attached documents include: Attachment 1: Cantalupo November 2019 Annotated Keynote Address, available at http://ssrn.com/abstract=3870795 Attachment 2: a copy of TITLE IX & THE PREPONDERANCE OF THE EVIDENCE: A WHITE PAPER, signed by 116 law professors Attachment 3: a copy of Cantalupo Declaration (typos corrected) Attachment 4: a copy of Comment in 2018-2020 rulemaking, filed by 93 law professors Attachment 5: Law Professor Amicus Brief in VRLC et al. legal challenge, available at https://www.hwglaw.com/hwg-assists-27-lawprofessors- with-amicus-brief-challenging-title-ixregulations/ Attachment 6: a copy of Law Professor Amicus Brief in Multistate AG legal challenge

Path dependence and critical junctures refer to decisive choices and events that prompt future trajectories, which are difficult to reverse because the progression of the political or institutional consequence involves entrenched behavior, anteceding determinations, and an elevated cost of altering course. This article contends that human rights abuses that followed from the Bush Administration’s interrogation policies were the product of a path dependent process. Namely, evidence from investigations indicates that the Bush Administration chose policies, based on a primal risk-averse assumption of dire harm from terror threats, and issued an effective “call for papers” to legal advisors to have them produce opinions to make no law applicable that would restrict detention and interrogation policies. The same inner-circle of four legal advisors issued critical memoranda and the White House classified the documents under national security so that other lawyers could not critique them prior to government actions being taken. Ultimately, if one discards the premises, signified by the reality that the first terrorist attack since 9/11 occurred at the 2013 Boston Marathon, that there has been virtually no other substantial evidence of plots near perpetration or of “sleeper cells,” and that wars in Afghanistan and Iraq were unrelated to imminent and direct threats inside American borders, the initial overzealous perception of jeopardy ostensibly produced government orders that deprived human rights, undermined U.S. integrity, abused numerous innocent people in foreign countries, and violated international and domestic law. Moreover, the legal memoranda should not be perceived as an intervening variable to dilute responsibility or the chain of causation between the premise of threats and government directives that arguably cashiered international law violations, crimes, or torts.

Non-consensual pornography, defined as the distribution of sexually graphic images of individuals without their consent, transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or malicious hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days, that image can become the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide. Non-consensual pornography can destroy victims’ intimate relationships as well as their educational and employment opportunities. While non-consensual pornography can affect both male and female individuals, empirical evidence indicates that the majority of victims are women and girls, and that women and girls face more serious consequences as a result of their victimization. By violating legal and social commitments to gender equality, non-consensual pornography is similar to sexual harassment, rape, and domestic violence.This working paper details the lack of appropriate legal response to this issue. While victims can in theory make use of tort or copyright law, such civil actions are burdensome, costly, and often bring increased attention to the harmful material. Moreover, non-consensual pornography is a form of sexual abuse and should be treated as such by the law. Currently, only two states have criminal laws that offer protection against such conduct, and there is no federal criminal law that directly addresses it. Both state and federal criminal laws are necessary to address non-consensual pornography. State criminal laws are necessary to address conduct that does not cross state lines. Federal law is necessary because state laws are limited both by jurisdiction and by the Communications Decency Act §230, which creates high hurdles for either civil or criminal charges against website operators who distribute non-consensual pornography. Given that the Internet has greatly amplified the scope and harm of non-consensual pornography, an effective law must also reach Internet traffickers. According to existing federal provisions, using the Internet to transmit information qualifies as “interstate commerce,” which Congress has the power to regulate. Combined with the fact that CDA §230 does not shield websites from federal criminal liability, this means that a federal criminal prohibition is both appropriate and necessary to fully address the problem of non-consensual pornography.

A response to the Ministry of Justice Consultation paper on 'Judicial Review: Proposals for Reform' drafted by members of the Faculty of Law's Centre for Public Law.

When one or more of a group of concurrent wrongdoers settles with an injured person, these settling wrongdoers may still be required to make a contribution to or indemnify the non-settling wrongdoers in a court action between the injured person and the non-settling wrongdoers. This consultation paper explores the origins of this rule and examines options for reform. It tentatively recommends amending the Negligence Act, adding a provision to address such partial settlements. The provision would promote settlement of multiparty litigation before trial and would better balance the interests of all the parties with the broader public interest.

Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.

This paper adumbrates a theory of what might be going wrong in the monetary SVAR literature and provides supporting empirical evidence. The theory is that macroeconomists may be attempting to identify structural forms that do not exist, given the true distribution of the innovations in the reduced-form VAR. The paper shows that this problem occurs whenever (1) some innovation in the VAR has an infinite-variance distribution and (2) the matrix of coefficients on the contemporaneous terms in the VAR’s structural form is nonsingular. Since (2) is almost always required for SVAR analysis, it is germane to test hypothesis (1). Hence, in this paper, we fit a -stable distributions to VAR residuals and, using a parametric-bootstrap method, test the hypotheses that each of the error terms has finite variance.

While peace processes must find solutions specific to the nature of the conflict they address, they can also benefit from comparison with how other countries have attempted to resolve their conflicts in peace agreements. This paper below draws on my work on comparative peace processes and agreements to examine central issues in peace negotiations, and the ways in which a lex pacificatoria or ‘law of the peacemakers’ has emerged. I examine, in particular political and constitutional reform (part II) and social and economic reform (part III), pointing to the types of solution the ‘law of the peace makers’ suggests in these areas. In conclusion I examine how to build support for peace processes (part III). The paper was commissioned by International Alert, to inform the Philippines peace process, It does not aim to suggest particular solutions to conflicts in the Philippines, but rather aims to re-frame how peacemakers and advocates understand and approach legal issues relating to constitutional reform and socio-economic issues.

Whether having a conversation with a client, speaking to a judge, or interacting with another attorney, lawyers need to be able to communicate orally. In the first year of law school, however, there are not many opportunities for students to “practice” having conversations about the law in a thoughtful and professional manner. While the Socratic dialogue common in most first year courses challenges students to think on their feet, this method does not teach students how to orally describe their research path, how to orally explain their analysis of a client’s legal issue, or how to orally make a recommendation on a course of action. For this reason, I have incorporated an exercise into my Legal Research and Writing course requiring students to orally present their research results and assessment of a client’s legal issue. In this article, I explain why I include an oral research report exercise in my Legal Research and Writing class, what this exercise entails, and how legal writing professors are uniquely situated for teaching the oral research reporting skill.

The Unfair Contracts Relief Project is a two-year law-reform project. The project’s focus is on general concepts in the law of contracts that address the problem of contractual unfairness. Its goal is to produce a final report that considers draft legislation containing reforms to these general concepts. The consultation paper sets out tentative recommendations for reform. These tentative recommendations contain policy positions that may form the foundation for a proposed Contract Fairness Act for the project’s final report.The consultation paper focuses on five general concepts in contract law and one type of contract term that has caused ongoing problems for contractual fairness. These topics are: (1) unconscionability; (2) duress; (3) undue influence; (4) good faith; (5) misrepresentation; and (6) exclusion clauses. These concepts were selected from among the many that could have been addressed in the consultation paper for three reasons. First, they were seen as best representing how legal doctrine grapples with the idea of fairness in contracting. Second, they were amenable to analysis as a group, in relation to one another. Third, they were seen to be ripe for consolidation and modernization.The consultation paper contains 46 tentative recommendations for reform. Its major tentative recommendations include clarifying the tests for unconscionability, duress, and undue influence and integrating how those concepts operate at the level of procedure and remedy, establishing an implied duty of good faith in the performance of contracts, and modernizing the scope of and remedies available for misrepresentation.

This consultation paper is issued in connection with the Probate Rules Reform Project of the British Columbia Law Institute (BCLI).BCLI has undertaken this project with the support of the Ministry of Attorney General because of two recent and significant legal developments. One was the enactment of the Wills, Estates and Succession Act in 2009. The other was the general reform of the rules of the Supreme Court of British Columbia that culminated in the unveiling of the new Supreme Court Civil Rules (Civil Rules) slated to come into effect in July 2010.The current rules of court concerning probate business, namely Rules 61 and 62, were not a priority in the general reform of the rules of court and they appear largely unchanged as Rules 21-5 and 21-4, respectively, in the Civil Rules. Changes to the probate rules are needed nevertheless in order for the Wills, Estates and Succession Act to be brought into force. Those changes must be in keeping with the tenor of the rest of the Civil Rules. Additional reasons for reforming the probate rules appear in Part One of this consultation paper.The Project Committee’s approach to reform of the probate rules was fourfold. First, there would be an attempt to design an optimal procedure instead of simply improving on the existing one. Second, aspects of probate procedure would not be retained for purely historical reasons. Third, in recognition of the fact that unrepresented persons initiate much probate business, procedures would be simplified where possible. The revised probate rules would provide more explicit guidance than Rules 61 and 62 now do. Fourth, differences between procedures in probate matters and general civil procedure would be harmonized to the extent possible and old anomalies removed.Part One of the consultation paper explains the background to the procedural re-forms that the proposed rules would introduce. Part Two contains the proposed rules and commentary. Following the general format of the Civil Rules, the proposed rules take the form of subrules grouped under one principal rule that would be numbered 21-4. As the proposed rules abandon the present contentious / non-contentious classification of probate business, division of the subrules between two principal rules of court was not seen as necessary.The proposed rules in Part Two are intended to accommodate a system in which a single court file for the estate would be opened when the first filing (typically an application for a common form grant) is made. Contested matters that currently must be pursued in separate actions with different court files and file numbers, such as probate in solemn form and revocation, would be initiated instead by interlocutory application within the single estate file. The procedure in each case would be only as elaborate as necessary to resolve the particular matter, ranging from an ordinary chambers argument to summary trial on affidavits to a regular civil trial with oral evidence.

In December 2008, the European Commission (hereafter, the “Commission”) published a guidance paper on its enforcement priorities in applying Article 82 of the EC Treaty (now Article 102 TFEU) to abusive exclusionary conduct by dominant undertakings (hereafter, the “Guidance Paper”). This document is of a sui generis nature as it “sets out the enforcement priorities that will guide the Commission’s action in applying Article [102] to exclusionary conduct by dominant undertakings.” The Commission does not therefore state or restate the way in which Article 102 should be interpreted, a task which falls within the exclusive remit of the European Court of Justice (hereafter, the ECJ”), but explains the circumstances in which a given dominant firm’s conduct is likely to be subject to enforcement action by the Commission. Against this background, this paper seeks to answer the following question: Is the Guidance Paper useful? Considering that the Guidance Paper has generally been well received by commentators, one could be tempted to respond to this question positively, but a careful review of the document suggests that the answer may be less straightforward than would appear at first blush. To respond to the question posed above, this paper is divided into five parts. Part I explains the context leading to the adoption of the Guidance Paper. Part II briefly describes the content of the Guidance Paper, focusing on the general principles that will guide the Commission’s assessment of foreclosure rather than on its review of the various types of conduct that are likely to fall within the purview of Article 102. Part III addresses the question of whether the Guidance Paper provides sufficient guidance to dominant firms and their advisors as to whether certain conduct they may wish to pursue is compatible with Article 102. Part IV discusses whether the Commission is likely to comply with the effects-based approach promoted in its Guidance Paper or is likely to revert to a form-based approach when this better suits its enforcement objectives. Finally, Part V concludes that while the Guidance Paper gives encouraging signs that the Commission will adopt a modern, effects-based approach when defining its enforcement priorities questions remain as to the practical impact of this document for dominant firms. First, the principles contained in the Guidance Paper are subject to significant exceptions and caveats and provide no safe harbors, hence reducing the overall level of guidance provided for in this document. Second, the approach taken by the Commission in the Intel case suggests that the Commission may still be tempted to rely on the formalistic case-law of the ECJ in order to ensure that its decision does not become subject to a successful appeal.

In recent years there have been a number of claims of “biopiracy” where a company seeks patent coverage over inventions, which others feel would be an unjust “appropriation” of traditional or sacred knowledge. The SbMATE patent which was filed in 2007 (and granted in the US in 2009), relates to the identification of a gene that confers tolerance upon plants to Aluminium in the soil and to a genetically modified Sorghum containing that gene and thus displaying enhanced resistance to aluminium. The Sorghum from which the SbMATE gene was identified and cloned from is thought to have originally come from present day Tanzania. The Tanzanian government is reported to be very unhappy, as are a number of NGOs and activist groups. They have indicated that they will seek to have the patent revoked. This briefing document examines whether this might be possible. I use this examination to elucidate certain key aspects of patent law, which may be of interest to NGOs and policy makers who are interested in genetic modification (GM), patent and “biopiracy” issues. Much (?) of what is in this briefing paper will either be obvious or well known to members of the legal, especially Intellectual property community - this paper is not aimed at lawyers; I hope the readership will be wider, whilst at the same time being a rigorous examination of some key issues in the area. In this paper I argue that whilst other contested DNA patents have been successfully attacked in whole or in part, that this patent was not granted in error, according to the laws in force at the time of writing. In addition, some more general thoughts on biopiracy and IPR system are discussed; I hope this may also shed some light on why this particular patent has been subject to criticism.

This the second of two working papers produced for the "New Challenges to Data Protection" study, commissioned by the European Commission. This paper discusses the difficulties that arise if one tries to apply the main EC Directive on data protection (Directive 95/46/EC) and the data protection laws in the EU Member States that implement it, as currently drafted, to the new global social and technical context described in Working Paper No. 1, by Dr. Ian Brown. It does this by means of a comparative-legal analysis, taking into account the six European and five non-European countries studied: Czech Republic, Denmark, France, Germany, Greece, United Kingdom, USA (Federal, California and New Jersey), Australia, Hong Kong, India and Japan. NB: Working Paper No. 1, on "The Challenges to European Data Protection Laws and Principles," can be found on Ian Brown's ssrn webpage: http://ssrn.com/author=892424. The findings of the paper presented here are summarised in another document: "Comparative Chart: Divergencies Between Data Protection Laws in the EU," which can be separately downloaded from the present ssrn page, as can the country reports on France, Germany and the UK, also written by Douwe Korff.

When one or more co-owners of land want to sell or divide the land and the other co-owners oppose it, the stalemate may be broken by recourse to the remedies of partition of the land proportionally in accordance with the size of the co-owners’ interests, or sale of the land in lieu of partition. In British Columbia, the remedy of sale is governed by the Partition of Property Act. The remedy of partition is governed by the Act only in part.Co-owners now have a presumptive right to partition and sale. The remedies can only be refused if justice requires it. If the eligible class of applicants is expanded to include mortgagees and judgment creditors, the question arises whether they too should be presumptively entitled to partition or sale on application, or whether the remedies should be discretionary in their case. The consultation paper does not take a stance on this question, and instead asks the question for purposes of consultation. Readers are invited to make their views known on that point as well as on the tentative recommendations themselves.

A covenant running with land is an obligation owed by one landowner to another that is enforceable between successors in title or interest of the original parties. While originating as a contractual obligation, a covenant running with land derives many of its characteristics from property law. A familiar and frequently encountered type of covenant running with land is the restrictive covenant. While restrictive covenants have only been recognized since the mid-nineteenth century, the rules surrounding them are firmly established.The Project Committee believes the reforms covered by the tentative recommendations in this consultation paper are timely and will simplify and rationalize the law of covenants affecting land. Comment on these tentative recommendations is invited from all interested sectors.

This short primer sets out a range of policy choices and legal options available to the EPA as it decides how it might use the Clean Air Act to address climate change. This paper was written as a background paper for a conference co-sponsored by Duke Law, Harvard Law School, and Duke's Nicholas Institute held on March 26, 2009.

Students around the world submit their essays to an online anti-plagiarism service known as Turnitin.com. Four students sued the service for copyright infringement because Turnitin added their papers to its database for use in future anti-plagiarism detection. The students lost their case, in both the district court and more recently in the court of appeals, based on a fair use analysis. This paper examines not only the copyright and fair use analysis that the court employs, but also the contracts and privacy issues that are applicable to this case.

This is the first consultation paper issued by the British Columbia Law Institute (BCLI) in connection with Phase 2 of the Real Property Reform Project, a law reform initiative funded by The Law Foundation of British Columbia, the Notary Foundation, and the Real Estate Foundation of British Columbia. In Phase 1, a preliminary scoping study conducted with the aid of an advisory committee, BCLI identified a number of aspects of real property law in British Columbia in need of reform. One of these was the uncertainty arising from conflicting interpretations of section 29 (2) of the Land Title Act. Uncertainty surrounding the effect of section 29 (2) complicates dealings with land in British Columbia and raises the level of risk and expense associated with them.The consultation paper is divided into five chapters. Chapter I is a general introduction. Chapter II explains the fundamentals of British Columbia’s Torrens system. Chapter III analyzes section 29 (2) of the Land Title Act and the competing lines of case authority concerning that provision. Chapter IV describes the various alternatives that were considered, sets out the tentative recommendations of the Project Committee summarized above, and explains the reasons for them. Chapter V contains a list of the tentative recommendations.

In early 2009 the Palestinian Authority submitted a declaration under Article 12(3) of the Rome Statute recognizing the jurisdiction of the International Criminal Court ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ In the first instance this paper argues that whereas the existence or otherwise of a state of Palestine remains moot at best for the purpose of international law and international relations broadly speaking, a compelling argument can be made that for the purposes of the Statute only, a determination by the Court that Palestine is a state that can engage with the Court would be valid and in line with the Court and the Statute’s statutory requirements. The paper, drawing on the criteria being relied upon by the Office of the Prosecutor in order to decide whether the PA, as an institution established by the PLO, has the necessary ‘capacity’ to transfer its jurisdiction to the Court, then addresses the extent of the PA’s jurisdiction over international crimes. It demonstrates that the PA can legitimately prosecute individuals responsible for crimes within the jurisdiction of the ICC regardless of the nationality of the individuals concerned and that the PA has the ability to enter into international agreements. It concludes by asserting that the ICC may validly consider Palestine to be a state for the purposes of Article 12(3) of the Rome Statute and may accept the transfer of jurisdiction from the PA to the Court in line with the Statute and the principles of international law

State immigration laws aim at the removal of a class of persons, undocumented aliens, through “attrition by enforcement.” Sponsors of the attrition laws claim federal authorization for their efforts, which otherwise may violate the Fourteenth Amendment and federal civil rights laws. The ultimate basis of the claim does not rest on the Constitution, but on a doctrine constructed in the nineteenth century, in the Chinese Exclusion Cases, contemporary with Plessy v. Ferguson. The Supreme Court then accepted a claim that Congress and the President had extra-constitutional power to expel a class of unwanted “aliens,” defined by their race. Congress in 1996 renewed the claim of power to deport even documented immigrants and naturalized citizens, and attempted to authorize state governments to share in the deportation power. State immigrant “attrition by enforcement” laws are the result. In Arizona v. United States, the S.B. 1070 case, the Supreme Court held that portions of the statute, a model for other state immigrant attrition laws, were not authorized but instead were preempted. The remaining state “attrition” schemes are still to be tested against the civil rights laws, however. The Court in modern times has greatly circumscribed the supposed, unlimited power to deport aliens claimed in the Chinese Exclusion Cases, and one hopes Congress and the courts will abandon the dubious doctrines announced in those opinions and do away with “Juan Crow.”

Filmmaking and the narration of history have been engaged in a complex relationship ever since the early days of filmmaking. Many films tell stories unfolding in previous times or about actual historical events, and their narration of history is often criticized as inaccurate, fictitious, or even intentionally misleading. When a highly publicized film suggests a controversial narrative of a certain chapter in history, a debate usually follows in the public arena followed by a court room drama. Defamation is the key word which perhaps is the link between movies made on historic events and controversies surrounding the same. Defamation law offers a unique view of society and the changes it undergoes. When a claim of reputational injury is made, the case exposes the prejudices alive in the particular society at hand. When the law deems a claim actionable, it recognizes and, at some level, lends credence to the prejudices held. The claim by Princess Youssoupoff in 1934 that an imputation of rape or seduction is libelous reveals underlying currents in English society at the time as to class, nation and gender. The judicial recognition of the claim, and the legal and extra-legal reactions to the claim at the time and since then, further raise for examination the relationship between law and morality. To be recognized as defamatory, must an allegation impute immorality to the plaintiff? Should the law of defamation recognize societal prejudices that are real, even if deemed by lawmakers and the judiciary to be invalid? Is it the function of the law to mirror the society in which it is produced or to carry it forward? Is the defamation law all about morality? Such questions form the backdrop of the inter connection of law morality and defamation.

This paper continues the analysis of political theory in the Hebrew Bible. This book of Judges evaluates the pros and cons of a confederacy of semi-sovereign tribes, constituted by legal obligations and embodied in three institutions: judges, military leaders, and a tribal assembly. Although the author portrays the leaders of the confederacy as heroes who rescue Israel from distress, his evaluation of the confederacy is negative. He argues that its institutions are not strong enough to reliably deliver the benefits of nationhood – justice, security, prosperity, domestic tranquility, and fidelity to God.

This Note argues that the Textron court allowed policy considerations to affect the outcome without directly analyzing the competing objectives of enforcement and privilege. The work product doctrine, like all privileges, attempts to strike a balance between enforcement and privacy, and the Textron decision was guided by the court’s desire to balance effective tax law enforcement by the IRS against the need for privacy to conduct detailed legal analysis of tax filings by corporate entities. Regardless of which objective one finds more important, the majority properly brought the policy discussion into the opinion. The majority, failed, however, to explicitly balance these two objectives and set out a framework for lower courts to follow.Part I takes a detailed look at tax accrual work papers and explains the difficulty in applying the work product doctrine to these documents. Part II discusses the history, background, and theoretical underpinning of the work product doctrine, highlighting the circuit split related to the phrase “in anticipation of litigation.” Part III discusses the Textron holding in depth and, using the language and theories from the preceding sections, explains the Textron court’s error. Finally, Part IV argues that, while the doctrine was applied incorrectly, the eventual outcome in Textron may have been correct in light of the policy considerations and practical concerns underlying the doctrine. The Note concludes by arguing that, despite the alarm it has raised, Textron did not drastically change the work product doctrine. Courts and litigants will be able to limit Textron’s impact by recognizing that the work product doctrine requires an explicit balancing between enforcement and privacy.

This is a response to the Northern Ireland Office consultation paper on a Bill of Rights for Northern Ireland. The response focuses on the right to equality and democratic rights.

Several states have laws that prohibit large increases in prices on consumer good, or “price gouging,” during emergency situations like pandemics. We investigate the impact of such laws on online consumer behavior using data from Google Shopping Trends during the onset of the COVID-19 pandemic. We focus on hand sanitizer and toilet paper, two staples predominantly bought in-stores in regular times, which experienced substantial in-store shortages since the onset of the pandemic. We find robust evidence indicating anti-price gouging laws are associated with significant increases in online searches for hand sanitizer, and some evidence that these laws increase searches for toilet paper as well. These results imply the possibility that anti-price gouging laws lead to shortages for consumer staples during pandemics. Our results inform the ongoing and rigorous debate surrounding anti-price gouging laws and their potential effects during public health emergencies like COVID-19.

In October 2007 the Law Commission published Consultation Paper No 183 on Conspiracy and Attempt. This working paper addresses some of the questions and concerns raised by the conspiracy section of that consultation paper. In particular it argues that, contrary to the Law Commission's proposals, a mens rea of recklessness should not be adopted with regard to conspiracies to commit crimes involving an actus reus element of circumstances, for the simple reason that this has the potential to turn agreements not to commit offences into conspiracies to commit them. The concept of conditional intent should be adopted instead on the basis that it can achieve all of the same objectives as recklessness with none of the same drawbacks. In addition, the paper argues for restraint in the creation of double inchoate liability and for a more uniform approach to exempt conspirators.

SMEs and sound financing of SMEs are latest trends in Pakistani educational and banking scenario. Although, the concept got importance during Bhutto regime of 70s, but never gained much strength especially to financial sector, until SMEDA and SME bank had not emerged during last decade. Pakistan, as we know it today, is a developing country with a GDP per capita ranking, recently shifted from Low income countries to Middle income countries, contains a lot to SMEs. Furthermore, SMEs existing in Pakistan are contributing a 30% of national GDP, 25% in export earnings, & employing about 78% of non-agricultural labor force. So, it is right time to develop and implement a sound, comprehensive, and coherent policy for all SMEs working in the country. While also right time for government, to develop a practical solution to problems and difficulties of this important, but neglected sector of the past. I want to tell you when I started analyzing this policy; I worked on following main lines, to have a critical analysis for this policy paper of SMEDA, given below: 1. I made a basic research, & studied some basic theories about global emergence/background of SMEs. 2. Then, I moved to discuss the basic introduction of SMEDA policy, my analysis of Pakistani SME sector and need for this policy, in form of quick review. 3. Then I made a critical analysis of policy objectives/scope/ principles, recommendations, implementation, & monitoring mechanisms. 4. Finally, I made a final conclusion of all above mentioned working of mine with some additional informative links, as well for my report's reader. Conclusion: After analyzing this policy paper, I think that this policy paper is not sufficient towards very complex needs and changing requirements of Pakistani SMEs, especially in its implementation part. Recently, in Pakistan we heard that hundreds of businesses have been closed due to shortage of Electricity, water, Sui gas (natural gas), or due to law and order situation (like assassination of Ex-Prime Minister of Pakistan in Rawalpindi). It is also heard that every day million of assets are being transferred to near Persian Gulf countries by existing business community, in such a scenario no SME can prevail and grow with reasonable level of certainty. Moreover, economically, this policy is viable but not focused for some excellence sectors in future, like a widely acclaimed adopted one village, one product model for microfinance and SMEs, this policy shall be focused on some specific businesses and product lines, instead of forming a mass of unplanned and less cost-effective SMEs, in today world of globalization and specialization.