Showing papers on "Common law published in 2009"

Government Control of Privatized Firms

Abstract: We study the change in government control of privatized firms in OECD (Organisation for Economic Co-operation and Development) countries. At the end of 2000, after the largest privatization wave in history, governments retained control of 62.4% of privatized firms. In civil law countries, governments tend to retain large ownership positions, whereas in common law countries they typically use golden shares. When we combine these two mechanisms, we find no association between a country’s legal tradition and the extent of government control. Rather, we document more prevalent government influence over privatized firms in countries with proportional electoral rules and with a centralized system of political authority. (JEL L33, D72, G15, H6, K22) The wave of privatization that began in the United Kingdom in the 1980s, and spread across the globe during the 1990s, produced what is arguably the greatest transfer of ownership in the history of the corporation. Governments all over the world have sold, or are selling, large blocks of their ownership positions to the private sector. In terms of flows, privatization transactions, including share issue privatization (SIP) and private placements, raised US$ 1,230 billion globally during the 1977‐2003 period, about one-fifth of the total value of issues floated on public equity markets. Yet stories in the popular press suggest that the rollback of state control has been incomplete. Governments

Stages of Capital: Law, Culture, and Market Governance in Late Colonial India

Abstract: In Stages of Capital , Ritu Birla brings research on nonwestern capitalisms into conversation with postcolonial studies to illuminate the historical roots of India’s market society. Between 1870 and 1930, the British regime in India implemented a barrage of commercial and contract laws directed at the “free” circulation of capital, including measures regulating companies, income tax, charitable gifting, and pension funds, and procedures distinguishing gambling from speculation and futures trading. Birla argues that this understudied legal infrastructure institutionalized a new object of sovereign management, the market, and along with it, a colonial concept of the public. In jurisprudence, case law, and statutes, colonial market governance enforced an abstract vision of modern society as a public of exchanging, contracting actors free from the anachronistic constraints of indigenous culture. Birla reveals how the categories of public and private infiltrated colonial commercial law, establishing distinct worlds for economic and cultural practice. This bifurcation was especially apparent in legal dilemmas concerning indigenous or “vernacular” capitalists, crucial engines of credit and production that operated through networks of extended kinship. Focusing on the story of the Marwaris, a powerful business group renowned as a key sector of India’s capitalist class, Birla demonstrates how colonial law governed vernacular capitalists as rarefied cultural actors, so rendering them illegitimate as economic agents. Birla’s innovative attention to the negotiations between vernacular and colonial systems of valuation illustrates how kinship-based commercial groups asserted their legitimacy by challenging and inhabiting the public/private mapping. Highlighting the cultural politics of market governance, Stages of Capital is an unprecedented history of colonial commercial law, its legal fictions, and the formation of the modern economic subject in India.

An introduction to medical malpractice in the United States.

Abstract: Medical malpractice law in the United States is derived from English common law, and was developed by rulings in various state courts. Medical malpractice lawsuits are a relatively common occurrence in the United States. The legal system is designed to encourage extensive discovery and negotiations between adversarial parties with the goal of resolving the dispute without going to jury trial. The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering.

Catering Effects in Corporate Dividend Policy: The International Evidence

Abstract: This study tests for the international presence of dividend catering across a sample of twenty-three countries. We find evidence of catering among firms incorporated in common law countries but not for those in civil law nations. Catering persists even after controlling for the effect of the firm's lifecycle. We conclude that when the legal regime and its accompanying set of investor protections permit, investors force dividends from managers, but they also attempt to extract such payouts indirectly by placing a high value on dividend paying firms. The relative failure of civil law firms to cater might be explained by idiosyncratic behaviors in the consumption of the private benefits of control or a lack of interest in responding to temporary market misevaluations of their equity.

Data Protection in the Case Law of Strasbourg and Luxemburg: Constitutionalisation in Action

Abstract: Seemingly, the history of data protection is a success story culminating in the recognition of data protection as a separate fundamental right in the 2000 EU Charter of Fundamental Rights. This paper assesses the future of the approach taken towards data protection. Using Lessig’s typology, the EU Charter should be regarded as a transformative constitution rather than as a codifying constitution. Of these two types, the transformative constitution is clearly the more difficult to realize, since it must act when the constitutional moment is over. Lessig is sceptical about the role of the courts when it comes to realizing such a constitutional project. Today European courts at all levels do take up the task of constitutionalising data protection. This paper discusses the process of constitutionalisation of data protection and its reception by the European Court on Human Rights in Strasbourg and the Court of Justice of the European Communities in Luxembourg. I. FORMAL OR POLITICAL CONSTITUTIONALISATION The underlying interests of data protection It is impossible to summarise data protection in two or three lines. Data protection is a catchall term for a series of ideas with regard to the processing of personal data (see below). By applying these ideas, governments try to reconcile fundamental but conflicting values such as privacy, free flow of information, the need for government surveillance, applying taxes, etc. In general, data protection does not have a prohibitive nature like criminal law. Data subjects do not own their data. In many cases, they cannot prevent the processing of their data. Under the current state of affairs, data controllers (actors who process personal data) have the right to process data pertaining to others. Hence, data protection is pragmatic; it assumes that private and public actors need to be able to use personal information because this is often necessary for societal reasons. Data protection regulation does not protect us from data processing, but from unlawful and/or disproportionate data processing. Data protection regulation’s real objective is to protect individual citizens against unjustified collection, storage, use and dissemination of their personal details. This objective seems to be indebted to the central objective of the right of privacy, viz to protect against unjustified 1 Report on the First Report on the Implementation of the Data Protection Directive 95/46/EC, Committee on the Citizens’ Rights and Freedoms, Justice and Home Affairs, European Parliament, Session Document, 24 February 2004 (Final A5-0104/2004), p. 13 http://ec.europa.eu/justice_home/fsj/privacy/docs/lawreport/ep_report_cappato_04_en.pdf 2 P.J. Hustinx, ‘Data protection in the European Union’, Privacy & Informatie, 2005, No. 2, (pp. 62-65), p. 62. Draft contribution Comments welcome 1 interferences in the personal life. Many scholars therefore hold data protection and privacy to be interchangeable. Data protection is then perceived as a late privacy spin-off. We will come back to the relationship between privacy and data protection below. We would like to underline here that, data protection regulation does a lot more than echoing a privacy right with regard to personal data. Rather, it formulates the conditions under which processing is legitimate. This entails amongst others that data must be processed fairly, for specified purposes and, on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Data protection also prohibits certain processing of personal data, for instance ‘sensitive data’. A key principle to determine what is legitimate and what is prohibited is the purpose specification principle: data may only be processed when it is collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Next to these two guidelines regarding legitimacy and unlawful processing, a couple of specific subjective rights are granted to the data subject. These are inter alia the right to be properly informed, the right to have access to one’s own personal data, the right to rectification of data, the right to be protected against the use of automated profiling, the right to swift procedures in court, the right to assistance by Data Protection Authorities (DPAs) competent for a variety of tasks with broad discretionary powers (reporting, monitoring, complaints handling, rule development, enforcement), a right upon security measures to be implemented by ‘controllers’ and ‘processors’, the right that only relevant data will be gathered and that they will not be disclosed except with consent of data subject or by authority of law. We see data protection as a growing body of rules and principles that need to be taken into account by the legislator drafting laws, and by ‘controllers’ and ‘processors of personal data’. This process is never over. New rules and principles are called for every time new challenges arise due to new (technological) developments. It is therefore not easy to define the underlying interest of data protection. Just as there are many visions of privacy in literature -from narrow visions (protection of the intimate sphere proposed by inter alia Wacks, Inness), older visions (the right to be let alone proposed by Warren & Brandeis or the dignity approach), newer visions (‘identity’ as proposed by Hildebrandt) over to broader visions (privacy as freedom and informational self-determination proposed by inter alia Westin and Gutwirth), there are many ‘readings’ possible of the interests underlying data protection and their priority, ranging from autonomy, informational self-determination, balance of powers, informational division of powers, over integrity and dignity, to democracy and pluralism. 3 See Article 5 of the 1981 Convention , Article 6(1)(a) of the 1995 Directive and Article 4(a) Regulation 45/2001 4 See Article 5 of the 1981 Convention, Article 4-7 of the 1995 Directive and Article 4(1) (b) Regulation 45/2001. We will come back to these texts below. 5 Data protection law includes extra safeguards with regard to the processing of sensitive data or ‘special categories of data’, such as data on ethnicity, gender, sexual life, political opinions or the religion of the person (Article 6 of the 1981 Convention, Article 8 of the 1995 Directive and Article 10 Regulation 45/2001). The special responsibility of the data processor towards sensitive data can be explained by the fact that the information at stake, for example medical data, belongs to the core of a person’s private life. It is exactly this kind of information that individuals generally do not wish to disclose to others. 6 See Article 5 of the 1981 Convention, Article 6(1)(b) of the 1995 Directive and Article 4(1)(b) Regulation 45/2001 7 See on these DPAs, Article 1 of the Additional Protocol to the 1981 Convention, Article 28 of the 1995 Directive and Article 24 and 41 Regulation 45/2001 8 Raymond Wacks, ‘The Poverty of Privacy’, Law Quarterly Review, 1980, vol. 96, p. 73 ff.; Julie C. Inness, Privacy, Intimacy, and Isolation, Oxford. University Press, 1992. 9 Samuel D. Warren & Louis D. Brandeis, ‘The Right to Privacy’, Harvard L. Rev. 1890, pp. 195-215; Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ N.Y.U. L. REV., 1964, Vol. 39, p. 962 ff.. 10 M. Hildebrandt, M., 'Privacy and Identity', in Claes, E., Duff, E., Gutwirth, S. (eds.), Privacy and the Criminal Law, AntwerpOxford: Intersentia 2006, pp. 43-58. 11 F. Westin, Privacy and Freedom, Bodley Head, London, 1967; S. Gutwirth, Privacy and the information age, Lanham/Boulder/New York/Oxford, Rowman & Littlefield Publ., 2002, 146p. 12 E. Brouwer, Digital Borders and Real Rights. Nijmegen, Wolf Legal Publishers, 2007, (501p.), p. 170-175; P. De Hert & S. Gutwirth, ‘Privacy, data protection and law enforcement. Opacity of the individual and transparency of power’ in E. Claes, A. Duff & S. Gutwirth (eds..), Privacy and the criminal law, Antwerp/Oxford, Intersentia, 2006, p. 61-104; L. Bygrave, Data Protection Law: Approaching Its Draft contribution Comments welcome 2 Formal constitutionalism and the history of data protection The history of European data protection is a well-known example of legal creativity and perseverance of some of the visionary in the policy making world, realizing that the right to privacy in Article 8 of the European Convention for the protection of human rights and fundamental freedoms (ECHR), adopted in 1950, needed to be complemented to meet some of the challenges created by emerging technologies in the 1970s. In the early 1970s the Council of Europe concluded that Article 8 ECHR had a number of limitations in the light of new developments, particularly in the area of information technology: the uncertain scope of private life, the emphasis on protection against interference by public authorities, and the insufficient response to the growing need for a positive and pro-active approach, also dealing with other relevant organisations and interests. As a consequence, the Council of Europe adopted a separate Convention on Data Protection (1981) dealing with data protection as protection of fundamental rights and freedoms of individuals, in particular their right to privacy, with regard to the processing of personal data relating to them. These wordings demonstrate that data protection is both wider and more specific than the protection of privacy. It is wider since it also relates to other fundamental rights and freedoms of individuals, such as equality and due process. It is at the same time more specific, since it only deals with the processing of personal data. However, it is broader because it protects all personal data. We will see below that both the Strasbourg Court of Human Rights and the Luxembourg Court of Justice refuse to consider privacy protection to be applicable to all personal data. The Council of Euro

The Evolution of the Law and Politics of Water

Abstract: PART 1. Introduction.- 1. The Evolution of Global Water Law.- 2. Mesopotamia: A History of Water and Law.- 3. Islamic Law and the Politics of Water.- 4. Water in the Jewish Legal Tradition.- PART 2. Evolving National Law and Politics.- 5. Brazil: The Evolution of the Law and Politics of Water.- 6. South Africa: The Development of Water Law.- 7. East African Water Regimes: The Case of Kenya.- 8. Israel: The Evolution of Water Law and Policy.- 9. Russia: Historical Dimensions of Water Management.- 10. India: Evolution of Water Law and Policy.- 11. Australia: The Problem of Sustainability in Water.- 12. United States: The Allocation of Surface Waters.- 13. The United States: The Emergence of Environmental Considerations.- PART 3. Evolving Supranational and Regional Water Law and Politics.- 14. European Community Water Policy.- 15. Southern Africa: Evolving Regional Water Law and Politics.- 16. The Jordan Basin: Evolution of the Rules.- 17. The North American Great Lakes.- 18. The Rio De La Plata Basin.- PART 4. Current Trends in International Water Law.- 19. Case Law on International Watercourses.- 20. International Cooperation on Water Resources.- 21. Public Participation in Water Governance.- 22. The Market Alternative. PART 5. Conclusions.- 23. The Challenges for the 21st Century: A Critical Approach.- Index.

How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of Shareholder, Creditor and Worker Protection

Abstract: Much attention has been devoted in recent literature to the claim that a country’s ‘legal origin’ may make a difference to its pattern of financial development and more generally to its economic growth path. Proponents of this view assert that the ‘family’ within which a country’s legal system originated, be it common law, or one of the varieties of civil law, has a significant impact upon the quality of its legal protection of shareholders, which in turn impacts upon economic growth, through the channel of firms’ access to external finance. Complementary studies of creditors’ rights and labour regulation have buttressed the core claim that different legal families have different dynamic properties. Specifically, common law systems are thought to be better able to respond to the changing needs of a market economy than are civilian systems. This literature has, however, largely been based upon cross-sectional studies of the quality of corporate, insolvency and labour law at particular points in the late 1990s. In this paper, we report findings based on newly constructed indices which track legal change over time in the areas of shareholder, creditor and worker protection. The indices cover five systems for the period 1970-2005: three ‘parent’ systems, the UK, France and Germany; the world’s most developed economy, the US; and its largest democracy, India. The results cast doubt on the legal origin hypothesis in so far as they show that civil law systems have seen substantial increases in shareholder protection over the period in question. The pattern of change differs depending on the area which is being examined, with the law on creditor and worker protection demonstrating more divergence and heterogeneity than that relationg to shareholders. The results for worker protection are more consistent with the legal origin claim than in the other two cases, but this overall result conceals significant diversity within the two ‘legal families,' with different countries relying on different institutional mechanisms to regulate labour. Until the late 1980s the law of the five countries was diverging, but in the last 10-15 years there has been some convergence, particularly in relation to shareholder protection.

The International Law of Belligerent Occupation

Abstract: Belligerent occupations existed in both World Wars and have occurred more recently in all parts of the world (including Iraq, Afghanistan, the former Yugoslavia, Congo, Northern Cyprus, Nagorno-Karabakh, Georgia, Eritrea and Ethiopia). Owing to its special length – exceeding half a century and still in progress – and the unprecedented flow of judicial decisions, a special focus is called for as regards to the occupation of Palestinian territories by Israel. International law addresses the subject of belligerent occupation in some detail. This second, revised edition updates the text (originally published in 2009) in terms of both State practice and doctrinal discourse. The emphasis is put on decisions of the Security Council; legislation adopted by the Coalition Provisional Authority in Iraq; and predominantly case law: international (Judgments of the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia and the European Court of Human Rights; Advisory Opinions and Arbitral Awards) as well as domestic courts.

Catering effects in corporate dividend policy: The international evidence

Abstract: This study tests for the international presence of dividend catering across a sample of twenty-three countries. We find evidence of catering among firms incorporated in common law countries but not for those in civil law nations. Catering persists even after controlling for the effect of the firm’s lifecycle. We conclude that when the legal regime and its accompanying set of investor protections permit, investors force dividends from managers, but they also attempt to extract such payouts indirectly by placing a high value on dividend paying firms. The relative failure of civil law firms to cater might be explained by idiosyncratic behaviors in the consumption of the private benefits of control or a lack of interest in responding to temporary market misevaluations of their equity.

Dynamic Competition in Antitrust Law

Abstract: The September 2009 announcement that the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice have initiated a review of the Horizontal Merger Guidelines provides a formal process for redefining the proper role of dynamic competition in antitrust law. How would competition policy be shaped if it were explicitly to favor Schumpeterian (dynamic) competition over neoclassical (static) competition? Schumpeterian competition is the kind of competition that is engendered by product and process innovation. Such competition does not merely bring price competition. It tends to overturn the existing order. A “neo-Schumpeterian” framework for antitrust analysis that favors dynamic competition over static competition would put less weight on market share and concentration in the assessment of market power and more weight on assessing potential competition and enterprise-level capabilities. By embedding recent developments in evolutionary economics, the behavioral theory of the firm, and strategic management into antitrust analysis, one can develop a more robust framework for antitrust economics. Such a framework is likely to ease remaining tensions between antitrust and intellectual property. It is also likely to reduce confidence in the standard tools of antitrust economics when the business environment manifests rapid technological change. It appears that the Antitrust Division of the U.S. Department of Justice has attempted to incorporate more dynamic analysis, but the result has been inconsistent across different mergers and different doctrinal areas of antitrust law. Moreover, a complicating factor in the transformation of the law is the fact that the federal courts have, by embracing the reasoning in the Merger Guidelines promulgated several decades ago by the Antitrust Division and the Federal Trade Commission, caused antitrust case law to ossify around a decidedly static view of antitrust. Put differently, in the years since 1980, the Division and the FTC have successfully persuaded the courts to adopt a more explicitly economic approach to merger analysis, yet one that has a static view of competition. The result is not a mere policy preference. It is law. To change that law to have a more dynamic view of competition will therefore require a sustained intellectual effort by the enforcement agencies (as well as by scholars and practitioners) that, once more, engages the courts to reexamine antitrust law, as they did in the late 1970s during the ascendancy of the Chicago School, when antitrust law became infused with its current, static understanding of competition. A necessary but not sufficient condition for that effort is a public process by which the Division and the FTC revisit and restate the Merger Guidelines in a manner that clarifies and defends the role of dynamic competition in antitrust analysis. We therefore applaud the announcement of the antitrust agencies in September 2009 to solicit public comment on the possibility of updating the Merger Guidelines. Assuming that the Division and the FTC decide to revise the existing Merger Guidelines, those revised guidelines (and useful complementary undertakings, such as generalized guidelines on market power and remedies) then will require leadership by the enforcement agencies to persuade the courts that antitrust doctrine should evolve accordingly. That neo-Schumpeterian process may take a decade or longer to accomplish, but it is a path that we believe the Roberts Court is willing to travel.

The Health of Nations: Society and Law beyond the State

Abstract: Preface Part I. Society and Law: 1. The will to know and the will to power: theory and moral responsibility 2. The phenomenon of law 3. Globalization from above: actualizing the ideal through law 4. The nation as mind politic: the making of the public mind 5. New enlightenment: the public mind of all-humanity Part II. European Society and its Law: 6. European governance and the re-branding of democracy 7. The crisis of European constitutionalism: reflections on a half-revolution 8. The concept of European Union: imagining the unimagined 9. The conversation that we are: the seven lamps of European unity Part III. International Society and its Law: 10. The concept of international law 11. International law and the idea of history 12. Intergovernmental societies and the idea of constitutionalism 13. International law and the international Hofmafia: towards a sociology of diplomacy 14. International law and international revolution: re-conceiving the world Index.

How Do Legal Rules Evolve? Evidence From a Cross-Country Comparison of Shareholder, Creditor and Worker Protection

Abstract: Much attention has been devoted in recent literature to the claim that a country's "legal origin" may make a difference to its pattern of financial development and more generally to its economic growth path. Proponents of this view assert that the "family" within which a country's legal system originated—be it common law, or one of the varieties of civil law—has a significant impact upon the quality of its legal protection of shareholders, which in turn impacts upon economic growth, through the channel of firms' access to external finance. Complementary studies of creditors' rights and labor regulation have buttressed the core claim that different legal families have different dynamic properties. Specifically, common law systems are thought to be better able to respond to the changing needs of a market economy than are civilian systems. This literature has, however, largely been based upon cross-sectional studies of the quality of corporate, insolvency, and labor law at particular points in the late 1990s. In this paper, we report findings based on newly constructed indices which track legal change over time in the areas of shareholder, creditor, and worker protection. The indices cover five systems for the period 1970-2005: three "parent" systems, the United Kingdom, France, and Germany; the world's most developed economy, the United States; and its largest democracy, India. The results cast doubt on the legal origin hypothesis in so far as they show that civil law systems have seen substantial increases in shareholder protection over the period in question. The pattern of change differs depending on the area which is being examined, with the law on creditor and worker protection demonstrating more divergence and heterogeneity than that relating to shareholders. The results for worker protection are more consistent with the legal origin claim than in the other two cases, but this overall result conceals significant diversity within the two "legal families," with different countries relying on different institutional mechanisms to regulate labor. Until the late 1980s, the law of the five countries was diverging, but in the last ten to fifteen years there has been some convergence, particularly in relation to shareholder protection.

A logical analysis of burdens of proof

Abstract: The legal concept of burden of proof is notoriously complex and ambiguous Various kinds of burdens of proof have been distinguished, such as the burden of persuasion, burden of production and tactical burden of proof, and these notions have been described by different scholars in different ways They have also been linked in various ways with notions like presumptions, standards of proof, and shifts and distributions of burdens of proof What adds to the complexity is that different legal systems describe and treat the burden of proof in different ways For instance, in common law jurisdictions the just-mentioned distinction between three kinds of burden of proof is explicitly made while in civil law systems it usually remains implicit

'Telephone Law' and the 'Rule of Law': The Russian Case

Abstract: The voices of ordinary Russians have been mostly absent from discussions of the 'rule of law' in Russia. Drawing on 59 interviews conducted during the summer of 2008 in Moscow and Saratov, this article seeks to integrate the views of average citizens. These interviews reveal remarkably little concern over 'telephone law' and/or corruption. The respondents are highly critical of the Russian legal system, but focus their anger on the unwillingness of the state to enforce the existing laws and the slow speed and expense of litigating. Most are open to the idea of going to court for disputes with one another, though not for disputes with the state or other powerful actors. The predictability that underlies the 'rule of law' is present in the sense that ordinary Russians understand when they can and cannot rely on the legal system. Expecting more from Russia is likely unrealistic.

International Courts and Environmental Protection

Abstract: International environmental law has come of age, yet the global environment continues to deteriorate. The challenge of the twenty-first century is to reverse this process by ensuring that governments comply fully with their obligations, and progressively assume stricter duties to preserve the environment. This book is the first comprehensive examination of international environmental litigation. Analysing the spectrum of adjudicative bodies that are engaged in the resolution of environmental disputes, it offers a reappraisal of their relevance in contemporary contexts. The book critiques the contribution that arbitral awards and judicial decisions have made to the development of environmental law, and considers the looming challenges for international litigation. With its unique combination of scholarly analysis and practical discussion, this work is especially relevant to an era in which environmental matters are increasingly being brought before international jurisdictions, and will be of great interest to students and scholars engaged with this vital field.

Law for States: International Law, Constitutional Law, Public Law

Abstract: The divide between international and domestic law runs deep in Anglo-American legal thought. Domestic law is taken to be the paradigm of how a legal system should work. International law, by comparison, seems different and degraded. The international legal system has no centralized legislature or hierarchical court system authorized to create, revise, or specify the application of legal norms, and as a result is said to suffer from irremediable uncertainty and political contestation. Out of deference to state sovereignty, international law is a "voluntary" system that obligates only states that have consented to be bound, and thus generally lacks the power to impose obligations on states against their interests. Consequently, the content of international law often reflects the interests of powerful states. And to the extent international law diverges from those interests, powerful states often interpret away or ignore it. They are able to do so because the international legal system lacks a super-state enforcement authority capable of coercing recalcitrant states to comply. These characteristics of the international legal system have led realists and other skeptics to conclude that, in both form and function, international law is a qualitatively different and lesser species of law - if it qualifies as law at all. Constitutional law, in contrast, has been subject to few such doubts. But perhaps it should be. This Article argues that constitutional law in fact shares all of the features that are supposed to make international law so distinctively dubious. In mapping out these commonalities, the Article suggests that the traditional divide between domestic and international law obscures what is, for many purposes, a more important and generative conceptual divide between law for states and law by states. The ways in which both international and constitutional law differ from ordinary domestic law follow from the distinctive aspiration of legal regimes for states - or "public law" - to constitute and constrain the behavior of states and the distinctive difficulty these regimes face of not being able to rely fully on the institutions of their subject states for implementation and enforcement.

Dynamic competition in antitrust law

Abstract: How would competition policy be shaped if it were to explicitly favor Schumpeterian (dynamic) competition over neoclassical (static) competition? Schumpeterian competition is the kind of competition that is engendered by product and process innovation. Such competition does not merely bring price competition. It tends to overturn the existing order. A “neo-Schumpeterian” framework for antitrust analysis that favors dynamic competition over static competition would put less weight on market share and concentration in the assessment of market power and more weight on assessing potential competition and enterprise-level capabilities. By embedding recent developments in evolutionary economics, the behavioral theory of the firm, and strategic management into antitrust analysis, one can develop a more robust framework for antitrust economics. Such a framework is likely to ease remaining tensions between antitrust and intellectual property. It is also likely to reduce confidence in the standard tools of antitrust economics when the business environment manifests rapid technological change. It appears that the Antitrust Division of the U.S. Department of Justice (DOJ) has attempted to incorporate more dynamic analysis, but the result has been inconsistent across different mergers and different doctrinal areas of antitrust law. Moreover, a complicating factor in the transformation of the law is the fact that the federal courts have, by embracing the reasoning in the Merger Guidelines promulgated several decades ago by the Antitrust Division and the Federal Trade Commission (FTC), caused antitrust case law to ossify around a decidedly static view of antitrust. Put differently, in the years since 1980, the Division and the FTC have successfully persuaded the courts to adopt a more explicit economic approach to merger analysis, yet one that has a static view of competition. The result is not a mere policy preference. It is law. To change that law to have a more dynamic view of competition will therefore require a sustained intellectual effort by the enforcement agencies (as well as by scholars and practitioners) that, once more, engages the courts to re-examine antitrust law, as they did in the late 1970s during the ascendancy of the Chicago School, when antitrust law became infused with its current, static understanding of competition. A necessary but not sufficient condition for that effort is a public process by which the Division and the FTC revisit and restate the Merger Guidelines in a manner that clarifies and defends the role of dynamic competition in antitrust analysis. We therefore applaud the announcement of the antitrust agencies in September 2009 to solicit public comment on the possibility of updating the Merger Guidelines. Assuming that the Division and the FTC decide to revise the existing Merger Guidelines, those revised guidelines (and useful complementary undertakings, such as generalized guidelines on market power and remedies) then will require leadership by the enforcement agencies to persuade the courts that antitrust doctrine should evolve accordingly. That neo-Schumpeterian process may take a decade or longer to accomplish, but it is a path that we believe the Roberts Court is willing to travel.

Credibility, proof and refugee law

Abstract: Assessing credibility is a legitimate and significant step in determining refugee status, but the term ‘credibility’ is employed with a range of descriptive intentions and legal consequences. It may be used loosely to express the strength of the case, or it may be given a very specific role in relation to the admissibility of the applicant's unsupported statements as evidence. By introducing some basic concepts from the law of evidence, the threshold of ‘credible’ can be set much lower than ‘proven’. It is shown that credible but unproven statements may play an important role in satisfying the standard of proof in asylum cases. This article takes as its starting point the UK's ‘Asylum Policy Instruction’ (API) on credibility. APIs are statements of the government's asylum policy, and are followed by asylum ‘case owners’ and other decision makers. Although well-intentioned, the API runs the risk of confusing credibility and proof. In order to explore the issues of credibility and proof, this article analyses the API itself, the UK's primary legislation, Immigration Rules, and case law, EU law, and guidance provided by the Office of the United Nations High Commissioner on Refugees (UNHCR).

The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law

Abstract: This article demonstrates how the content and meaning of California's consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an "institutional-political" theory that demonstrates how organizations' construction of law and compliance within an organizational field shapes the meaning of law among legislators and judges. This study examines case law and more than 35 years of California legislative history concerning its consumer warranty laws. Using institutional and political analysis, I show how auto manufacturers, who were initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers first using manufacturer-sponsored venues. Organizational venue creation resulted in public legal rights being redefined and controlled by private organizations. This article demonstrates how the content and meaning of California's consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how organizations influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. The political science literature on interest group politics suggests that business interests often co-opt the legislative and regulatory process through tactics such as lobbying, agenda setting, and venue shopping (Kamieniecka 2006; Leech et al. 2002; Baumgartner & Jones 1993; Ayres & Braithwaite 1991; Kingdon 1984; Quirk 1981; Stigler 1971; Bernstein 1955). Political scientists, therefore, have made great strides in explaining the mechanisms by which organizations actively influence law among public legal institutions tasked with enacting, implementing, and enforcing legal rules. Organizational sociologists applying neo-institutional analysis focus more on the relationship of law and private organizations. A central contribution has been to explain the impact of law on "organizational fields," the community of organizations that coexist and interact in some area of institutional life and share common systems of meaning, values, and norms (Dobbin et al. 1993; Sutton et al. 1994; Edelman 1990, 1992). More recently, neo-institutional scholars of law and organizations turn the tables, by showing how, at least in the civil rights context, courts defer to institutionalized organizational structures and practices. Judicial deference to organizational practices renders law "endogenous," i.e., the content and meaning of law is determined by the social arena that it is designed to regulate (Edelman et al. 1999; Edelman 2002, 2005, 2007; Edelman & Suchman 2007). My analysis builds on both these literatures on law and organizations by examining how private entities influence the meaning of legislation through both political and institutional mechanisms. Specifically, the research question I examine is: How and under what conditions can business organizations shape the meaning of legislation, once it is enacted? I focus in particular on the capacity of private business to influence how and where disputes over public legal rights are resolved. Amidst the proliferation of public-private partnerships and "responsive regulation" sanctioned and approved by legislatures and administrative agencies, business organizations across a wide variety of industries are increasingly engaged in "public" decisionmaking in private settings (Ayres 8c Braithwaite 1992; Lobel 2004). …

The Present State of European Private Law

Abstract: The article attempts to assess where we stand today in our endeavours to create a common European private law. General contract law and sales law have been, and will continue to be, at the center of attention. Today we are faced with a bewildering variety of documents purporting to establish common ground, among them the Principles of Euroepan Contaract Law, the Acquis Principles, the Draft Common Frame of Reference, the Consumer Sales Directive, a Proposal for a Directive on Consumer Rights, the United Nations Convention for the International Sale of Goods, and the Principles of European Sales Law. The Article examines the relationship between these documents and asks to what extent they reflect a coherent and satisfactory picture of acquis communautaire and acquis commun. In other fields (special contracts other than sale and extra-contractual obligations), the search for doctrinal structures which are both recognizably European and teleologically adequate has only just begun. Finally there are subjects, such as the law of succession, where the very legitimacy of legal harmonization has been questioned. The article concludes that all areas of private law should become the subject of genuinely European, as opposed to national, scholarship but that none of them is ready to be cast into an official European instrument, whether under the name of Code, or Common Frame of Reference.

Comparative Law by Numbers? Legal Origins Thesis, Doing Business Reports, and the Silence of Traditional Comparative Law

Abstract: The legal origins thesis—the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law—has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports—cross-country comparisons including rankings on the attractiveness of different legal systems for doing business—have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments. This ignorance has at least three negative consequences. First, the economic debate will continue to ignore or misrepresent traditional comparative law knowledge if we do not bring our specific knowledge to the table. Second, comparative law as a discipline misses the opportunity to measure its own progress and shortcomings in view of a literature which, although on its face radically different, provides important challenges. This concerns especially the promises and shortcomings of interdisciplinarity. Third, and perhaps most importantly, our silence means that comparative law as a field remains (or increasingly becomes) irrelevant for political projects because its themes are discussed more and more by others. If we comparative lawyers want to retain (or regain) relevance, we need to bring our particular expertise to bear on projects as important as law reform. The first purpose of this essay is to introduce the legal origins literature to traditional comparative law and to show important con-

Venture capital performance: the disparity between Europe and the United States

Abstract: This paper compares the success of venture capital investments in the United States and in Europe by analyzing individual venture-backed companies and the value generated within the stage financing process. We document that US venture capitalists generate significantly more value with their investments than their European counterparts. We find differences in contracting behavior, such as staging frequency and syndication, and evidence that they help to explain the observed performance gap and we report a substantial unexplained residual. We find that US venture funds investing in Europe do not perform better their European peers. European Common Law and Civil Law countries exhibit comparable levels of venture performance, and differences in stock market development or tax subsidies in favor of venture investments are unrelated to performance differences. European IPO exits from venture investments yield returns similar to the US, while trade sale exits weakly underperform. We attribute the overall performance gap essentially to the segment of poorly performing companies.

Law for States: International Law, Constitutional Law, Public Law

Abstract: TABLE OF CONTENTS I. INTRODUCTION 1792 II. THE PROBLEM OF UNCERTAINTY 1801 A. International Law 1803 B. Constitutional Law 1808 C. Public Law 1817 III. THE PROBLEM OF ENFORCEMENT 1822 A. International Law 1824 B. Constitutional Law 1830 C. Public Law 1840 IV. THE PROBLEM OF SOVEREIGNTY 1843 A. International Law 1845 B. Constitutional Law 1852 C. Public Law 1858 V. CONCLUSION 1862 I. INTRODUCTION The divide between international and domestic law runs deep in Anglo-American legal thought. Domestic law is taken to be the paradigm of how a legal system should work. Legal rules are promulgated and updated by a legislature or by common law courts subject to legislative revision. Courts authoritatively resolve ambiguities and uncertainties about the application of law in particular cases. The individuals to whom laws are addressed have an obligation to obey legitimate lawmaking authorities, even when legal rules stand in the way of their interests or are imposed without their consent. And in cases of disobedience, an executive enforcement authority, possessing a monopoly over the use of legitimate force, stands ready to coerce compliance. Measured against the benchmark of domestic law, international law seems different and deficient along each of these dimensions. International law has no centralized legislature or hierarchical court system authorized to create, revise, or specify the application of legal norms, and as a result is said to suffer from irremediable uncertainty and political contestation. Out of deference to state sovereignty, international law is a "voluntary" system that obligates only states that have consented to be bound, and thus generally lacks the power to impose obligations on states against their interests. As a result, the content of international law often reflects the interests of powerful states. And to the extent that international law diverges from those interests, powerful states often interpret it away or ignore it. They are able to do so because the international legal system lacks a super-state enforcement authority capable of coercing recalcitrant states to comply. These characteristics of the international legal system have led realists and other skeptics to conclude that, in both form and function, international law is a qualitatively different and lesser species of law--if it qualifies as law at all. Constitutional law, in contrast, has been subject to few such doubts. Conceived as the overarching framework for, and thus inseparable from, the statutes, regulations, and common law rules that comprise the familiar domestic legal system, constitutional law sits securely opposite international law on the domestic side of the divide. Unlike the decentralized and institutionally incomplete international legal system, moreover, constitutional law in the United States and other countries appears closer in form to ordinary, paradigmatically "real" domestic law because it typically features a proto-legislative enactment and amendment process, as well as an authoritative judiciary to resolve ambiguities about meaning and to enforce obligations against government officials. In contrast to the dubious efficacy of international law, constitutional law is generally assumed to serve as an important and effective constraint on government behavior, a meaningful check on the interests of the powerful. The perceived differences between international and constitutional law have taken on a normative cast as well. For centuries, theorists have worried about how to reconcile the legal constraints of international law with the idea, or ideal, of state sovereignty. Sovereignty is supposed to mean that states cannot be subject to any higher authority; international law and the institutions it creates seem to represent just such authorities. …

Law's looking glass : expert identification evidence derived from photographic and video images

Abstract: This article offers a critical overview of expert identification evidence based on images. It reviews the Australian case law and then, in an interdisciplinary manner, endeavours to explain methodological, technical and theoretical problems with facial mapping evidence. It suggests that extant admissibility jurisprudence and traditional safeguards associated with expert opinion evidence and the adversarial trial might not adequately protect those accused of committing criminal acts when they are confronted with incriminating expert identification evidence.

The Holmesian Bad Man's First Critic

Abstract: Holmes’s “bad man” view of the common law and his effort to capture contractual liability as option to perform or pay damages grew out of a debate he was having with another legal scholar in an exchange of letters that has largely been forgotten. Holmes’s opponent in this debate — Edward Avery Harriman — was in many respects a kindred spirit, someone who, like Holmes, was a positivist trying to fashion an objective account of the law of contract. Their disagreement was not so much about the role that morals and ethics ought to play in the law of contract, but rather about whether Harriman’s own theory — one that distinguished between primary and secondary obligations — provided the best explanation of the law of contract. The essay recaptures the contours of the debate and reassesses Harriman’s alternative theory of contract.

The Oxford handbook of international trade law

Abstract: INTRODUCTION PART I: THE ECONOMIC AND INSTITUTIONAL CONTEXT OF THE WORLD TRADING SYSTEM PART II: SUBSTANTIVE LAW PART III: SETTLEMENT OF DISPUTES PART IV: TRADE AND EL THE NEW AGENDA AND LINKAGE ISSUES PART V: THE WIDER FRAMEWORK CONCLUSION

The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality

Abstract: Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitate social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2,000 employees, this Article compares the effect of different regulatory mechanisms-monetary rewards, protective rights, positive obligations, and liabilities-on individual motivation and behavior. By exploring the interplay between internal and external enforcement motivation, these experiments provide novel insights into the comparative advantages of legal mechanisms that incentivize compliance and social enforcement. At the policy-making level, the study offers important practical findings about the costs and benefits of different regulatory systems, including findings about inadvertent counterproductive effects of certain legal incentives. In particular, the findings indicate that in some cases offering monetary rewards to whistle-blowers will lead to less, rather than more, reporting of illegality. At the more theoretical level, the findings contribute to several strands of inquiry, including motivational crowding-out effects, framing biases, the existence of a "holier-than-thou effect," and gender differences among social enforcers. Together, these findings portray a psychological schema that offers invaluable guidance for policy and regulatory design. I. Introduction Questions about social enforcement and the role of individual reporting in preventing corporate and governmental misconduct are at the forefront of current debates and reforms. Most recently, the 2009 stimulus bill introduced by President Obama for the recovery of our troubled economy includes elaborate antiretaliation rights for whistle-blowers who report financial misconduct. ' Dozens of existing federal statutes and hundreds of state statutes include similar whistle-blower protections or incentives in a vast range of fields including tax regulation, environmental law, employment discrimination, health and safety, and trading standards.2 Indeed, all regulatory systems have built-in mechanisms designed to promote legal compliance. However, the variation among these regulatory mechanisms and incentives is immense.3 Some statutes are designed to protect employees against retaliation when they resist or report illegal activities.4 Other statutes state an obligation of the individual to report and, at times, impose penalties for failure to report.5 Yet another class of incentive-based systems encourages reporting by sharing part of the funds recovered from a report of corporate fraud.6 In addition to the vast differences among the statutes themselves, there is significant debate about the application of the various laws. Most notably, recent case law interpreting whistle-blower protections has brought the field to a state of flux.7 For example, in a recent decision decried as "the worst Supreme Court ruling on whistleblowing,"8 the U.S. Supreme Court, in a 5-4 decision, refused to extend constitutional protections to employees who report illegal conduct when such reporting is "pursuant to their official duties."9 Other recent cases similarly reveal a deep ambivalence and uncertainty about the role of individuals in resisting illegality in organizations.10 The legislative and adjudicative variations in the field of social enforcement - the act of individual reporting of illegality - indicate great uncertainty and undertheorizing about the comparative advantages and effectiveness of various reporting channels, protections, and incentives that affect the decision of individuals to report illegal conduct. In this Article, we offer new insights on the psychology of social enforcement. …

The Common Law in Two Voices: Language, Law, and the Postcolonial Dilemma in Hong Kong

Abstract: Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has significantly altered the everyday working of the common law in China's most Westernized city. In The Common Law in Two Voices, Ng explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism. This first-ever ethnographic study of Hong Kong's unique legal system in the midst of social and political transition, this book provides important insights into the social nature of language and the work of institutions. Ng contends that the dilemma of legal bilingualism in Hong Kong is emblematic of the inherent tensions of postcolonial Hong Kong. Through the legal dramas presented in the book, readers will get a fresh look at the former British colony that is now searching for its identity within a powerful China.