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The Model Penal Code’s “De Minimis” provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some important general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defenses; whether criminal offences should always be so defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong — and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of labor, and of responsibilities, between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.

In this paper the author analyses de minimis state aid as an exception from the principle of prohibiting the state to help some undertakings in order not to privilege them among other undertakings and to violate their equality on the market. Author explains the notion of de minimis aid, justification of this exception from the prohibition of granting the state aid, privilege that its provider and beneficiary enjoy in comparison with other types of allowable ("compatible") state AIDS, as well as the methods of preventing the circumvention of rules about its granting. Th e author compares the rules of European Union and Serbia in this question, pointing to differences between them. Th e conclusion is that Serbia regulates de minimis aid superficially and vaguely, with important deviations from the EU law. Besides, author contemplates the adequacy of the EU allowable sum of de minimis aid within Serbian economic conditions.

This article argues that while South Africa’s International Trade Administration Amendment Bill and the attendant proposed regulations may generally be regarded as a positive legislative intervention, to a large extent, the new regulatory regime goes against the spirit, object and purport of the World Trade Organization (WTO) anti-dumping agreement and is even in conflict with South Africa’s International Trade Administration Act itself. In order to substantiate the above reservations, this article first outlines the basics of WTO dumping and anti-dumping law before proceeding to point out aspects of South Africa’s anti-dumping law and practicewhich incorporate WTO tenets. With the aid of selected WTO disputes and examples from comparative WTO member states, this article also comments on selected impugned changes likely to be introduced by the Bill and the new regulations and concludes that the proposed new law is unlikely to be WTO compliant. This conclusion is premised on the fact that South African dumping and anti-dumping law relating to confidentiality, the process of conducting investigations, termination of investigations based on de minimis margins and interested party hearings does not always mimic the legal position as espoused in the WTO anti-dumping agreementand interpreted in selected WTO disputes.

Public school board meeting prayer cases are intensely divisive and difficult. The federal circuit courts have struggled mightily with these Establishment Clause cases, and this struggle has resulted in a circuit split regarding these prayers’ constitutionality. At the core of this unresolved split is whether these cases are governed by the Supreme Court’s seventy-five-year school prayer jurisprudence or by its narrow Marsh-Town of Greece legislative prayer exception. This Article analyzes how these divergent decisions and the continued crafting of invocation policies by public school boards in the vacuum of direct Supreme Court guidance exemplify the complex constitutional issues that arise in all school law First Amendment cases. It then argues that public school board meeting prayers are a violation of the Establishment Clause because they are coercive, polarizing prayers that run contrary to the core of this religion clause of the First Amendment. They cannot be cured as constitutional violations by claiming that they are subject to the legislative prayer exception, by asserting that they are private student speech, by requiring students to absent themselves during their delivery, or by arguing that they are de minimis encroachments. Consequently, these prayers require invalidation as they infringe upon the conscientious liberties of the schoolchildren who are most impacted by this state-sponsored religious speech; they allow the state to transverse the boundaries of religious sanctity; and they give rise to majoritarian governmental orthodoxy. These are Establishment Clause violations, and principled judicial decision making from all federal courts, including the Supreme Court, is needed to end these significant constitutional abuses.

Citizens on many continents, increasingly worried with the failure of their States and others to urgently limit domestic GHG emissions to address the climate crisis, are turning to domestic courts for remedies and, more generally, climate justice. Yet for most domestic Judges, proceedings in their Courts questioning national or sub-national inaction to address global climate change are largely uncharted waters. Governments are telling Judges, e.g., that climate law and policy is “not justiciable,” that their country’s emissions are ‘de minimis’ compared to total global emissions, or that a Court order requiring one country to reduce its GHG emissions cannot redress a global problem demanding solutions coordinated at the international level. This article has two integrated components. Part I examines examples of citizen-initiated climate lawsuits Courts have either dismissed on standing grounds, or in which they have refused to grant effective relief based upon common governmental defenses such as those referred to above. Part II describes key innovative reforms to domestic court procedures and rules of evidence that would open clear pathways for citizens and organizations to seek, and for domestic Courts to provide, important remedies to overcome government inaction on climate. The reforms are based on the recently released International Bar Association “Model Statute for Proceedings Challenging Government Failure to Act on Climate Change,” that was guided in its original drafting by an expert international working group co-chaired by one the authors of this article.

In the agriculture negotiations, developing members remain concerned about the inherent inequities in the Agreement on Agriculture (AoA) which allows developed members to provide huge trade-distorting support without breaching their commitments. As a result of these flexibilities, developed members enjoy artificial competitiveness in international trade, which subsequently leads to an adverse impact on farm income and livelihood security for millions of farmers in third world countries. Further, developing members have been increasingly finding it difficult to implement domestic support measures due to the constraining provisions of the AoA. From the developing members' perspective, the elimination of trade-distorting entitlement for developed members along with special and differential treatment for themselves are the key demands in domestic support negotiations. However, some developed members have tried to build a narrative to depict developing members as major providers of trade-distorting support. This study has made a modest attempt to bring out the fallacy of this narrative by highlighting the asymmetries and inequities in trade-distorting entitlement of 8 developed and 12 developing members based on their socio-economic conditions. Results show that per farmer Amber box entitlement for developing members under the AoA is a mere fraction of the entitlement enjoyed by the developed members. This study provides a different dimension to the ongoing agriculture negotiations to make trade rules development-oriented and inclusive for all. More specifically, this study examine the following pertinent questions (1) whether the relevance of AMS entitlement for developed members has declined, and if so, why are developing members still asking for AMS elimination; (2) in case the socio-economic conditions of the developing members are considered, whether the narrative that developing members have the huge policy space under the de minimis limit will stand; (3) if policy space under the de minimis limit has increased, then why are the developing members complaining about the constraining provisions of the AoA; (4) In case the number of farmers is considered, what will be the entitlement of the members under the amber box for achieving a level playing field. The study seeks to explore answers to these intriguing questions by examining and evaluating the policy space under the Amber box for 20 selected members; 8 developed members namely Australia, Canada, European Union (EU), Japan, Russia, Norway, Switzerland and the United States, and 12 developing members namely Bangladesh, Brazil, India, China, Egypt, Indonesia, Kenya, Pakistan, Philippines, South Korea, Thailand, and Turkey in 2020 and 2030.

Over the past several years, the cybersecurity regulatory landscape has undergone unprecedented change. Bespoke cybersecurity laws and regulations have replaced pre-existing general risk management and business continuity rules in a number of jurisdictions, including the European Union, Hong Kong, Russia, the USA and Singapore. Cybersecurity has also become the focus of international rules and recommendations adopted by numerous international organisations. The financial sector lies at the centre of the new regulatory initiatives – which, in the absence of an agreed international approach, vary substantially across jurisdictions. This article analyses these emerging legal frameworks by (i) conducting a comparative study of the novel cybersecurity regulations in finance, (ii) identifying the common features of such frameworks and (iii) assessing the prospect of their harmonisation at an international level. It argues that international harmonisation in this area is necessary to overcome the underlying regulatory challenges and outlines the scope of rules amenable, first, to initial (de minimis) and, second, subsequent (more expansive) harmonisation. The article concludes with a list of main upcoming challenges in designing and harmonising cybersecurity regulations in finance and practical recommendations for overcoming them.

In recent years, those involved in regulating, forming or advising faith communities have had much to contend with: the expansion of the vicarious liability doctrine, the status of ministers of religion and the decision in Shergill v Khaira, not to mention the General Data Protection Regulation. These issues share a common denominator: they require faith communities to give close consideration to the values which they seek to articulate and foster in the expression of their own autonomy and right of self-determination. That is, they serve as a prompt to reconnect with the intellectus and vinculo iuris of their own ecclesial norms. This article is intended to encourage such an exercise and to contribute to a discussion of the potential points of collaboration between the civil law and faith communities in securing dispute resolution by which ecclesial values may be accommodated.

CJEU, Pelham and Others v Hütter and Others, Case C-476/17, EU:C:2019:624, 29 July 2019 The reproduction of small samples does not infringe the right of phonogram producers under Article 2(c) of Directive 2001/29 if the sample is modified and cannot be recognized. Longer and recognizable samples can only benefit from the quotation exception if they—inter alia—enter into a ‘dialogue’ with the original work.

Portuguese Abstract: Este artigo analisa os principais tracos do regulamento “geral” dos auxilios de minimis (Regulamento n.o 1407/2013) e dos regulamentos “especiais” relativos aos auxilios de minimis (agricultura: Regulamento 1408/2013; peixes e aquicultura: Regulamento 717/2014; servicos de interesse economico geral: regulamento 360/2012). No itinerario seguido, descreve-se o enquadramento dos auxilios de minimis, abordando aos seus principais topicos, como seja, definicao, âmbito, elementos essenciais, periodo de referencia, forma, condicoes de transparencia, acumulacao e acompanhamento. Destacam-se ainda, por um lado, as novidades dos regimes de 2014 e, por outro, os topicos que, apesar das reformas de 2014, ainda se mantem problematicos. English Abstract: The European Commission issued revised rules on de minimis State aid for the period 2014-2020. This article analyses the “general” de minimis aid Regulation (Regulation 1407/2013) and the “specials” de minimis aid Regulations (agriculture: Regulation 1408/2013; fishes and aquiculture: Regulation 717/2014; services of general economic interest: Regulation 360/2012). It describes the framework of the de minimis aid, in particular, definition, scope, essential elements, reference period, form, conditions of transparency, cumulation and monitoring. Moreover, it presents the main features of this Regulation, as well as the problems to be tackled.

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.” This Article challenges that account. The SG’s dominance of amicus oral argument is a relatively recent phenomenon. In the early 1900s, the SG requested amicus oral argument almost exclusively to defend federal statutes or federal agency action. During this time, the Court granted all his amicus oral argument requests. But, over time, SGs increasingly entered political cases with only tenuous connections to the federal government. During the late 1980s, the Court became skeptical of the SG’s political independence; in response, it denied seventeen percent of his amicus oral argument motions, and individual Justices criticized him in internal memoranda. Thirty years later, the Court permits the SG to argue as an amicus in almost any case he wants, even though he increasingly weighs in on politically charged cases with de minimis implications for the federal government. This new equilibrium has profound consequences. By permitting the SG to be heard any time he asks, the Court systematically biases the perspectives that it hears. This bias undermines due process principles and the adversarial system, and it ignores the Court’s own history and rules. We offer a proposal for reform.

The status quo of the pre-2014 period with respect to musical sampling was that any taking of the whole or a portion of a sound recording (embodying musical compositions and musical performances) might run against the economic – and, in the Continental European droit d’auteur/Urheberrecht systems, the moral – rights of the respective rightholders (authors, performers and/or sound recording producers). The sampler might excuse himself from liability if the unauthorised use can fit into the frames of any limitation or exception, including the fair use doctrine under the laws of United States. Limitations and exceptions cannot provide any shelter for samplers with respect to moral rights. Both U.S. and German practice have continuously applied such potential excuses tightly. In one of the most important sampling decisions ever, the Sixth Circuit has noted in its bright line rule that the prior authorization is a prerequisite to any lawful sampling (“get a license or do not sample”). Similarly, the Sixth Circuit also refused to apply the exception of de minimis for sampling cases in this ruling. In the most important German ‘sampling’ ruling, the German Federal Supreme Court (hereinafter: BGH) similarly excluded the applicability of the concept of de minimis, when it found that the sound recording producers’ rights are infringed by the taking of even the smallest of sound samples. Further, it has been declared as a bright-line rule that the sampler cannot apply the concept of “free use” (“freie Benutzung”) of the German Copyright Act, in a case where he could have been able to record the taken segment individually. Such a limited approach may be dangerous. Sampling has become a fundamental element of modern music industry, especially for hip-hop and electronic musicians. If all samples would require prior authorization, it could chill musical self-expression – an important part of the modern “pop-culture”. Not to mention that a bright-line rule, like the one in Bridgeport, would lead to a de facto monopoly of copyrights, and/or of the rights of sound recording producers, which should not be the ultimate goal of any copyright regime. Naturally, the exact opposite of this argument, namely, that all samplings are to be treated lawfully, is similarly false, and neither will this paper take such a position. This article aims to introduce the post-2014 U.S. and German sampling rulings. According to the chronologic order, the paper starts with the American cases (Part I), followed by the German rulings (Part II). Part III provides for a critical analysis of the latest developments, and discusses the possible outcomes of the pending Pelham ruling of the Court of Justice of the European Union.

De minimis defenses are an understudied aspect of law, appearing in legal practice more often than in legal theory but rarely garnering any type of extensive analysis in either. This has led to an unfortunate state of affairs in which one term is applied to a set of practices that are, at best, only loosely connected. Using Paul Robinson’s system of defense types, this paper will illustrate the various roles and functions the de minimis defense plays in our legal system. In doing so, it will highlight the dangers of viewing the defense as monolithic and suggest that our terminology surrounding de minimis ought to be revised due to the differing justifications that support the application of each de minimis type.

Governments have always intervened in the economy. This intervention varies in terms of scope. Presently, one of the most important instruments of government intervention in the economy is the provision of state aid. State aid puts its beneficiaries in a privileged position, which increases the importance of monitoring the aid granted and introducing limitations in terms of its scope and amounts. A particular type of state aid is de minimis aid, which is granted very frequently on account of its low unit value. As a result, the total value of such aid - and therefore also its impact - is very high. An important question is whether and how this type of support influences the implementation of the concept of sustainable development.

The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of s 11 of the New Zealand Bill of Rights Act 1990, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This article analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of the reasoning exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.

Music sampling is the act of taking a piece of an existing sound recording (the sample) and then using it in a new track. Sampling an original work without permission can infringe its copyright and therefore lead to lawsuits. There has still not been settled a single lawsuit regarding music sampling in the UK courts. It is therefore unclear to what extent music sampling can be used without infringing copyright. The overall aim of this paper is to establish the limits of music sampling and thereby determine whether music sampling could be used without infringing copyright laws.\ud \ud The literature review establishes the history and development of music sampling and determines the applicable laws. It also determines that there are two main exceptions to copyright; fair dealings and “de minimis,” which will be considered in the analysis.\ud \ud The methods used to analyse these two exceptions to copyright are the critical legal doctrine and the black letter analysis, which means that the analysis is based upon the statutes and case law. Due to the lack of UK case law, it is necessary to focus primarily upon case law from the US. Additionally, a survey was conducted to gather quantitative data regarding the use and perception of music sampling and its legality.\ud \ud In the analysis the two exceptions to copyright are considered. It is found that the fair dealings exception cannot be applied upon music sampling, while the “de minimis” exception can be applied, if the sample is not substantially similar to the original work. This meant that a sample could only be considered as “de minimis” in some very limited circumstances. Finally, it is showed how musicians believe that this current legal situation regarding music sampling can have a limiting effect upon their creativity.\ud \ud Overall, it is determined throughout this paper that the current copyright laws do not reflect the technological changes that has enabled musicians to unfold their creativity through “new” methods such as music sampling. It is therefore necessary that both the current law and their interpretation in courts are more relaxed in order not to damage the creative expression.

For many years, U.S. and European case law has offered a negative and restrictive interpretation on the sampling of sound recordings. Courts have traditionally deemed sampling as an infringement on the copyrighted material (and in Europe the related rights), even if the sample lasted for less than 2 seconds. Several notable precedents have been published in the wake of the first ruling on sampling, published in 1989 in the U.S., all of which have confirmed this interpretation. However, more recently, four decisions have been published, two in the United States and two in Germany, which deviate from this line of jurisprudence. It is these decisions which will form the crux of the analysis within the present article. To outline them briefly, the TufAmerica and the VMG Salsoul rulings highlighted that the de minimis test applies to the sampling of trivial portions and thus liability is excluded in such situations. The German Goldrapper ruling of the Federal Supreme Court (BGH) and the Metall auf Metall III decision of the German Federal Constitutional Court (BVerfG) have also opened the doors for sampling in Continental European legal systems. The Goldrapper ruling focused on the length of the sample, whilst the BVerfG in Metall auf Metall III introduced a novel discourse based on fundamental rights, concluding that sampling functions as a practical example of artistic freedom. Nevertheless, it remains unclear whether the ECJ will accept such an interpretation. However, this may become clearer in the not too distant future with a preliminary ruling being initiated by the BGH in June 2017. This article will analyze these four cases, as well as offering a view on the possible outcome of the preliminary ruling.

This chapter analyses EU competition law’s grasp of anti-competitive object in the light of the ECJ’s judgments in Allianz and Cartes bancaires and the Commission’s new De Minimis Notice. The chapter takes a comparative perspective, and provides a detailed outlook to this concept’s counter-part in US antitrust law (per se illegality). The chapter ends with the author’s critical evaluation of the new, elusive notion.

So-called remote harms offences, which prohibit acts that do not cause harm, have become more and more important in present-day criminal law. On what grounds these acts may be criminalized is analysed in this article. Focussing on abstract endangerment offences, it is clear that the classical standard harms analysis does not provide for sufficient arguments on which to base the prohibition of these offences. The de minimis principle and the principle of fair imputation provide arguments that help to limit prohibiting abstract endangerment offences. This is also the case when a subjective element is introduced in an offence, especially intent. However, both principles and the subjective element in an offence can also be used to provide arguments for the prohibition of more abstract endangerment offences or a more extensive interpretation of these offences. The introduction of a voluntary abandonment defence may help to prevent the sanctioning of relatively innocent acts, but in the end it is the legislator that has to restrain itself from prohibiting remote harms too easily.

Although foundational to the tort law of both common law and civil law countries, the concept of damage has been the object of surprisingly little analysis by academics in the common law world. The aim of this article is to redress the balance somewhat by looking more closely at the meaning of damage in the English law of negligence. The first part of the article consists of general observations on the damage concept. It is argued that it is impossible to devise a meaningful general definition of damage, that damage is not the same thing as loss, and that the damage concept is compatible with rights-based analysis of negligence law. The remainder of the article is devoted to consideration of the two most common forms of damage, personal injury and physical damage to property. It is argued that a central idea underpinning both these routine forms of damage is that of ‘impairment’ and that both forms of damage are subject to de minimis principles. As regards personal injury, particular attention is paid to the forms of psychiatric injury which ground a negligence claim. Finally, it is argued that for property to be damaged there must be a physical change in the property which impairs its utility or value, and that merely to incapacitate property is not to damage it. Although the primary focus is on English law (and the common law more generally), some comparative observations are made.

This unappealed Panel Report deals with now standard controversies involving US zeroing practices, but also involves a number of novel problems in administrative reviews of US anti-dumping orders that transcend zeroing issues. Most importantly, this dispute highlights the economic, legal, and statistical importance of sample-selection bias when calculating ‘all others’ rates for exporters that were not queried during dumping investigations. Sampling is particularly problematic in this dispute since US investigators found only zero and de minimis margins in the administrative reviews, a situation in which the relevant provision of the Anti-Dumping Agreement appears to provide no guidance (an apparent ‘lacuna’). The Panel did not directly deal with the key sample-selection issues in the case, and so we provide an alternative legal and statistical analysis. These issues are likely to become more important as the practice of zeroing is phased out in the United States. Indeed, sampling may well be the new zeroing.

A democratic federation's character may be importantly determined by the particular character of its electoral federalism. For the United States, "political safeguards" theorists provided foundational insights into the implications of interdependencies between state and federal officials, but were too casual in their remarks about election law as a de minimis contribution to federalism. In fact, the constitutional default of state legislative control over congressional redistricting and most other procedural election law has created powerful incentives for federal deference to state officials. This dependency may have created a tendency to respect the institutional prerogatives of state governments, though the relationship is dynamic and contingent, interacting with other factors such as the prevalence of divided party government at the national and state levels. Copyright 2013, Oxford University Press.

This article analyses the practice of horizontal agreement assessment in accordance with its impact on competition. The following research is based on analysis of scientific literature, current provisions of European Union and national legal acts, as well as official positions of the European Commission (hereinafter - EC) and national authorities. The current inconsistent practice of horizontal agreement assessment within the EU creates space for multiple interpretations. It is important to emphasize that the assessment rules provided in legal acts are, by their nature, only guidelines. More flexibility, but also more obscurity, in the assessment process bring with it the possibility for institutions to independently set priorities (for instance ‘priority rule’ in Lithuanian legislation, i.e. in the Articles 18.2.3. and 24.2.8 of the Law on Competition of the Republic of Lithuania, Official Gazette, 2012, no. 42-2041). The article analyses current regulation of horizontal agreement assessments in accordance with minor impact on competition.

In Post Danmark II, the Court held that, in the context of Article 102 TFEU, it is not necessary to show that an anticompetitive effect is of a ‘serious’ or ‘appreciable’ nature to apply that provision. In this context, the notion of ‘appreciability’ must be distinguished from that of ‘likelihood’, which refers to the probability of the anticompetitive effects of the practice. The notion must also be distinguished from that of effects as, contrary to what has sometimes been suggested, ruling out the need to show the appreciability of an anticompetitive effect does not say anything about what an effect is.

Admissibility of Cassation Complaint Subject to the Matter of AppealSummaryThe cassation complaint is an appeal from sentences or decisions of courts of the second instance. After more than 40 years the cassation was reintroduced to the Polish civil proceedings by the amendment to the Civil Proceedings Code (CPC) of 1 March 1996. The court which handles cassation complaints is the Supreme C ourt located in Warsaw. The Supreme Court does not consider cases but examines whether the judicial decisions comply with applicable laws.The cassation complaint cannot be filed in all cases. The jurisdiction of the Supreme Court is limited by the type of the case and by the amount of the claim. This article addresses the question of when the cassation complaint is admissible (in civil proceedings, non - litigious proceedings, execution and bankruptcy proceedings and procedure for recognition and enforcement of foreign judgments) because of the criteria ratione materiae, i.e. subject, type of the case. The above-mentioned instrument is excluded, for example, in the cases examined in the simplified procedure, in alimony cases, some inheritance cases and from divorce sentences.This paper also discusses the ratione valoris criteria. According to the Rom an law rule de minimis non curat praetor, in cases concerning property rights cassation complaint is inadmissible when the am ount of the claim does not exceed the sum specified in the CPC.

European legal scholars who expected that CJEU in its awaited Pinckney C-170/12 ruling rejects the case as irrelevant, or at least follows academic projects like CLIP, remained disappointed, or even more, perplexed. Does the court's answering of questions mean also approving that they are relevant for the referring French court? Or does it only mean that CJEU did not want to waste this unique opportunity? Even more, does approving of questions implie some “procedural attribution principle” on the jurisdiction level of Art. 5(3)? Is mere accessibility criterion in the context of the mosaic theory of Shevill capable to prevent forum shopping and abusive copyright litigations with de minimis infringements? The ruling is not consistent on many of these issues. Interestingly enough, the Court even managed to confuse its own members, as the Advocate General in the pending Coty Prestige C-360/12 case not only formulated an unusual criticism of the Pinckney ruling, but also offered two conflicting solutions to the judges, rather than a single one.

This article considers the questions of when and how the ancient common law maxim de minimis non curat lex – the law does not concern itself with trifling matters – ought to be applied in Canadian environmental law. These questions are important because their answers determine whether certain conduct that results in some level of environmental harm will – or will not – be subject to a given regulatory regime, which in turn creates the potential for environmental degradation through cumulative effects. The first part observes that that there is presently considerable confusion about whether the maxim is even available in the Canadian environmental law context. Concluding that it is under certain legislative circumstances, the second part argues that the prevailing conception of de minimis as a single-step test concerned only with the magnitude of environmental harm in isolation is incorrect; rather, the foundational jurisprudence points to a two-step test that actually considers the potential for cumulative effects. This part also examines recent developments in cumulative effects assessment and the emerging paradigm of risk-based regulation in order to shed some modern light on this ancient maxim’s application. The paper concludes by considering the implications of applying de minimis in this way for regulators, industry and the public.

Municipal sign ordinances commonly embody exemptions for various categories defined by the content of the signs - or are they? Some courts find impermissible content discrimination in this situation, while others - heavily influenced by the Supreme Court's 2000 decision in Hill v. Colorado- do not. This article explores the case law in this area (including the effect of other Supreme Court decisions, most notably City of Ladue v. Gilleo), and suggest a more flexible and realistic approach to the de minimis content discrimination at issue in these cases.

For two or more generations, more than 50% of those who attempted to enter the United States illegally did so through the Southern District of California. Each year, up to 600,000 arrests were made here at a porous and largely unguarded border. Most of those arrested were economic migrants. Several thousand, however, were criminal aliens. Seemingly without exception, those who were apprehended provided false names and identification documents to Border Patrol and INS Agents, who often had no way to determine quickly the true identity and criminal background of the arrestee. Adding to these challenges was the fact that the Southern District of California was home to only one federal jail?the Metropolitan Correctional Center (MCC) in downtown San Diego. Built to house 456 inmates in 1974 (a capacity later expanded to 607), by 1994, the MCC routinely housed 1200 or more. 72% of the inmates were not U.S. citizens. For years, misdemeanor prosecutions, princi pally for violation of the U.S. Immigration Code, outpaced felony prosecutions in this District by a ratio of 5 to 1. Given limited detention space, misdemeanor prosecutions were preferred?they moved through the system quickly, making limited bed space available for the next misdemeanant. The fact remained, however, that even 5,000 such misdemeanor prosecutions were a de minimis drop in the bucket?595,000 illegal entrants still faced no sanction. It was clear that misdemeanor prosecu tions, even by the thousands, did nothing to stem the tide of illegal immigration. Since each illegal entrant violates federal criminal law merely by entering the United States, it was readily apparent that we could not, even were it deemed desirable, arrest, prosecute, and convict a half million or more people annually. In order to regain control of and reinstitute the rule of law at the border, it was clear that the Govern ment needed to: (1) provide the Border Patrol and INS with the personnel, equipment, and technology required to reduce illegal immigration in the first instance; (2) focus our prosecutorial attention on alien smugglers and on those undocumented aliens who are linked directly to violence and crime in the community; (3) impose an administrative, rather than a criminal, sanction against first-time violators of our immigration laws by expanding the use of the U.S. Immigration Courts; and (4) develop a credible and effective policy of worksite enforcement to discourage U.S. employers from hiring illegal entrants.

An estimated 49 million Americans (nearly one in five) have a physical or mental disability, which makes people with disabilities the country's largest minority (Hopkins 1994). More than one in six individuals of working age (16 to 64 years of age) has a disability; twothirds of these 29 million are not currently employed, though 79% state that they would like to work (Louis Harris and Associates 1994). In July 1990, the Americans with Disabilities Act (ADA), hailed by many as landmark legislation, was signed into effect by President George Bush. The ADA prohibits discrimination against persons with disabilities in hiring and promotion decisions and provides access to public transportation and public accommodations and services, as well as to telecommunications (Fersh and Thomas 1993). Our intent is to examine how the ADA affects marketers, both directly in regulating their activities and indirectly by raising awareness of a sizable group that marketers have heretofore largely ignored. The next section provides a brief description of the provisions of the ADA, followed by a discussion of the issue of access. This issue directly affects marketers because they must make provisions for accommodating customers with a variety of disabilities. The final section calls on marketers to venture beyond de minimis compliance with the letter of the ADA and attend to its spirit as well, by approaching people with disabilities with the sensitivity and respect every consumer deserves.

Many Americans would venture that their Constitutional rights are absolute, but that is generally not the case. Through the principles established under the often used de minimis doctrine, courts continue to struggle with allowing constitutional breaches in the name of government interest. Under the doctrine, a violation may be held to be so minimal as to not be of the concern of the law. When evaluating Fourth Amendment violations under the de minimis doctrine, the results are much more serious than in some other areas. Such abuses may result in criminal punishment if the intrusion is deemed reasonable and suppression if it is not. However, that is not to say that there is anything wrong with the application as the Fourth Amendment cannot be construed as absolute in the same way that other constitutional rights may be – the word “unreasonable” prevents that. An absolute Fourth Amendment right would prevent all searches and seizures without an appropriate warrant. This Article will explore the situations in which the Court has determined if the de minimis doctrine applies. The various attempts to apply the principle have left lower courts struggling to follow suit, and as this Article will explain, rightfully so. Though allowing de minimis intrusions are necessary and an application of common sense to our law, it is nearly impossible to set bright line rules that delineate when an unconstitutional Fourth Amendment event is de minimis.

This chapter examines a de minimis ‘defence’ to criminal liability. The aim is to establish that careful thought about de minimis helps to shed light on such central and fundamental topics as criminalization, the rule of law and the parameters of discretion, the relationship between morality and law, the structure of wrongdoing, the contrast between offences and defences, the concepts of justification and excuse, and even the nature of retributive justice itself.

Indiana imposes certain eligibility qualifications on candidates for public office, and provides a statutory cause of action for losing candidates in an election to challenge the results based on the eligibility of the winner. Following the 2007 mayoral election in Terre Haute, Ind., the losing candidate argued that the winner fell afoul of the federal Hatch Act, which is an explicit disqualification under Indiana law. The trial court concluded that the winning candidate did violate the Hatch Act, but through an interesting feat of jurisprudential jujitsu held that the disqualification didn't matter because the election was over. The court reached the paradoxical (in fact absurd) conclusion that a legislatively-created post-election contest procedure cannot be used after an election, using reasoning that, consistently-applied, would also gut Indiana's provision for a losing candidate from requesting a recount after the election. This is a draft of an essay examining what the court did wrong on both the federal and state law questions and what it should have done instead.

A new bright-line rule in copyright law in the Sixth Circuit digital sampling case of Bridgeport Music v. Dimension Films (decided in 2004 and rearticulated in June 2005) not only misinterprets legislative intent, but also demonstrates little understanding or knowledge of the larger history and methodology of music composition. Digital sampling and issues of copyright infringement continues to spark fervent debate; unfortunately, the literature tends to ignore or misunderstand the practice and precedent of music composition as it has existed in Western practice for over a thousand years. Sampling is merely a newer technique in the continuing development of that practice. This article analyzes and considers sampling within the larger history of music composition in order to provide a better sense of balance and perspective in the continuing discussion. Additionally, the article argues that a broader middle ground - encompassing the doctrines of de minimis use and fair use as well as a compulsory license scheme in certain situations - would both satisfy competing economic interests and encourage the growth of a healthy creative environment and culture. In contrast to court decisions such as that of the Sixth Circuit, this legislative and legal framework better reflects the spirit and intent of the original purpose behind the copyright provision of the Constitution.

It is now a requirement of European GM food regulation to encourage deliberative democracy endeavours. Article 9 of Directive 2001/18/EC requires Member States to "consult the public and, where appropriate, groups on the proposed deliberate release." Recent exercises in public consultation were relatively new in the UK. This paper, which is based on work in progress, discusses the views of members of the House of Lords on the public understanding and engagement of science. In this study, it is proposed that it is important for citizens to be involved in the decision making process otherwise European states should be held accountable. The use of the precautionary principle as a risk management tool is discussed. This research isolates the precautionary principle and analyses it's characteristics (use as a risk management tool, emphasis of judgement based on sound scientific investigative principles, lack of current consensus on "de minimis" risk allocation, lack of economic implementation to analyse costs and benefits of biotechnological applications, notion of public engagement). In this paper, I present a series of "Elite Interviews" to examine the views of members of the House of Lords on the risk analysis and regulation of GM foods.

In an important but thus far unnoticed development, federal courts have created a new series of “default principles” for statutory interpretation, authorizing regulatory agencies, when statutes are unclear, (a) to exempt trivial risks from regulation and thus to develop a kind of common law of “acceptable risks,” (b) to take account of substitute risks created by regulation, and thus to engage in “health-health” tradeoffs, (c) to consider whether compliance with regulation is feasible, (d) to take costs into account, and (e) to engage in cost-benefit balancing, and thus to develop a kind of common law of cost-benefit analysis. These cost-benefit default principles are both legitimate and salutary, because they give rationality and sense the benefit of the doubt. At the same time, they leave many open questions. They do not say whether agencies are required, and not merely permitted, to go in the direction they indicate; they do not indicate when agencies might reasonably reject the principles; and they do not say what, specifically, will be counted as an “acceptable” risk or a sensible form of cost-benefit analysis. Addressing the open questions, this Article urges that the principles should ordinarily be taken as mandatory, not merely permissive; that agencies may reject them in certain identifiable circumstances; and that steps should be taken toward quantitative analysis of the effects of regulation, designed to discipline the relevant inquiries. An understanding of these points should promote understanding of emerging “second generation” debates, involving not whether to adopt a presumption in favor of cost-benefit balancing, but when the presumption is rebutted, and what, in particular, cost-benefit analysis should be taken to entail. “Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . . . Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.”1 “It seems bizarre that a statute intended to improve human health would . . . lock the agency into looking at only one half of a substance’s health effects in determining the maximum level of that substance.”2 * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School and Department of Political Science. I am grateful to Elizabeth Garrett, Robert Hahn, Eric Posner, and Richard Posner for helpful comments on a previous draft. 1 Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (DC Cir 1979). 2 American Trucking Association v. EPA, 173 F.3d 1027, 1052 (DC Cir 1999). 2 Cognition and Cost-Benefit Analysis “It is only where there is ‘clear congressional intent to preclude consideration of cost’ that we find agencies barred from considering costs.”3 "In order better to achieve regulatory goals for example, to allocate resources so that they save more lives or produce a cleaner environment regulators must often take account of all of a proposed regulation's adverse effects, at least where those effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation."4 “The rule-implicit valuation of a life is high – about $4 million – but not so astronomical, certainly by regulatory standards, as to call the rationality of the rule seriously into question, especially when we consider that neither Hepatis B nor AIDS is a disease of old people. These diseases are no respecters of youth; they cut off people in their working years, and thus in their prime, and it is natural to set a high value on the lost years.”5

Is European Antidumping Protection against Central Europe Too High? —In this paper, the author finds that the average level of European antidumping protection against Central Europe in 1985-1990 was by 14 to 20 percentage points too high. Her simulation results on the Central European antidumping cases show only ‘de minimis’ injury margins. Hence, the European Commission would have dismissed all European antidumping complaints against Central European imports and no antidumping measures would have been imposed. In view of these results, the author feels that European antidumping legislation and its implementation seriously undermine the credibility of the Association Agreements recently signed between the European Union and the countries of Central Europe.

This paper discusses definitions of risk evolved to accommodate legal principles and scientific development in a time of rapid advances in science. The legal principles that underlie the interrelated definitions of “safe”, “significant risk,” and “acceptable risk” are examined in light of the major court decisions on benzene and vinyl chloride. The separate origins and development of concepts of de minimis risk and “negligible risk” are examined. The legal definitions are consistent with a judgmental weight-of-the-evidence evaluation of the statutory criteria, the available scientific information, and the risks acceptable in the world in which we live. The legal principles are dynamic, encourage scientific risk assessment based on case-by-case evaluation of the magnitude and character of human risks, and encourage incorporation of new scientific developments in the evaluation to improve the science base for regulatory decisions.