Showing papers on "Principal (commercial law) published in 2005"

Administrative Law Goes to War

Abstract: What are the President's war-making powers? This essay, a brief reply to an article by Curtis Bradley and Jack Goldsmith, contends that the answer lies in administrative law, at least in the first instance. The President's authority often depends on what Congress has said, and under established principles, the President has a great deal of power to interpret ambiguities in congressional enactments - in war no less than in peace. The principal qualifications involve interpretive principles, also found in administrative law, that call for a narrow construction of presidential authority to invade constitutionally sensitive interests. The relevant arguments are illustrated throughout with reference to the 2001 authorization for the use of military force in response to the attacks of September 11; the authorization may or may not include the power to make war on Iraq and Afghanistan, to use force against those suspected of giving financial aid to terrorist organizations, and to detain American citizens.

Beyond Marbury: The Executive's Power to Say What the Law is

Abstract: Under Marbury v. Madison, it is emphatically the province and duty of the judicial department to say what the law is. But as a matter of actual practice, statements about what the law is are often made by the executive department, not the judiciary. In the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron v. Natural Resources Defense Council, the most-cited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. But the theory that underlies Chevron remains poorly understood, and in the last two decades, significant efforts have been made to limit the executive's interpretive authority. In general, these efforts should be resisted. The principal qualification involves certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.

Torts, expertise, and authority: liability of physicians and managed care organizations.

Abstract: We examine optimal individual and entity-level liability for negligence when expected accident costs depend on both the agent’s level of expertise and the principal’s level of authority. We consider these issues in the context of physician and managed care organization (MCO) liability for medical malpractice. Under current law, physicians generally are considered independent contractors and hence MCOs are not liable for negligent acts by physicians. We find that the practice of reviewing the medical decisions of physicians affects their incentives to take care, which in turn implies that it is efficient for MCOs to be held liable for the torts committed by their physicians.

Co-Option and Resistance: Two Faces of Global Administrative Law

Abstract: This Article addresses some issues relating to the emergence of global administrative law from a third world perspective.1 The essential idea is to determine the nature, character, and limits of an evolving global administrative law (GAL).2 In order to do so, this Article departs from a formalistic and narrow definition of global administrative law that excludes the content of substantive rules from its ambit entirely, confining it to “the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, participation, and assurance of legality in global governance.”3 This Article instead seeks to assign GAL a more expansive meaning in the context of the changes that are transforming the nature and character of international law and institutions in the era of globalization. A strict separation of the content of substantive rules and GAL, which is largely procedure, is not tenable as states slowly evolve into administrative agencies of international institutions (as, for example, in the case of World Trade Organization (WTO)), and because the operation of GAL can impact the content of substantive rules or be co-opted and subverted by them. The principal aim of this Article, however, is to explore the conditions in

The EC Fining Policy for Violations of Competition Law: An Empirical Review of the Commission Decisional Practice and the Community Courts' Judgments

Abstract: Fines represent the principal tool in the European Commission's enforcement of EC competition law. Unlike in the United States where there is a formidable congeries of weapons against undertakings which breach anti-trust law, there are no criminal penalties, such as imprisonment for individuals in the EC. Moreover, private enforcement of EC competition law is still minimal. Thus, fines represent the main tool to remedy and deter violations of competition law. The European Court of Justice indicated in Musique Diffusion France (Pioneer), that the underlying rationale for the imposition of fines is to ensure the implementation of Community competition policy. The meting out of fines, therefore, serves two objectives (i) the suppression of illegal activity and (ii) the prevention of recidivism. During the first three decades in which the Commission imposed fines for breaches of EC competition law, the Commission was criticized for the obfuscation surrounding how it determined a given fine. During this period, there were no guidelines providing a reference point from which the Commission could impose fines leading to a lack of transparency in the fining process. There was thus a tendency to litigate before the courts in the expectation that the fine would be reduced. In addition, fines were generally fixed at such a low level that it was questionable whether they had any deterrent effect. There has been a recent evolution in Commission fining policy, however. First, the promulgation of both the Commission Guidelines on fines in 1998, which aims to make decisions over fines more transparent and impartial. Second, the toughening of the fines, which is particularly evident when one notes the condign fines of 462 million euros and 497 million euros imposed on Hoffman-La-Roche and Microsoft. Third, the development of the leniency notice, which provides an incentive for cartel members to admit to their anti-competitive conduct. Since the adoption of the 1998 Guidelines, the majority of the fines imposed by the Commission have been for cartel activity. The Commission has, however, shown an increasingly heavy-handed approach towards other infringements of Article 81 EC and abuses of a dominant position under Article 82 EC. Yet, it is not quite sure that these evolutions have reached their objectives as both the constituent elements of the 1998 Guidelines and the fining decisions, which are based on the 1998 Guidelines, are vague. This has left much room for conjecture as to how the Commission reached the final fine. The corollary of this is that there has been, as in the period preceding the 1998 Guidelines, a steady yet significant number of parties litigating before the courts. It is also still open to debate whether the fines imposed by the Commission are stringent enough. The Microsoft decision bears testimony to this. This raises the issue of whether the EC should not turn to other forms of penalties, such as criminal penalties. This path is already being followed in some Member States (e.g., UK), but seems unlikely to be followed in the EC. The Commission can neither impose fines nor criminal sanctions on individuals in light of the wording of Article 81 EC. On the other hand, Article 83(1) EC stipulates that the Council "give effect to the principles set out in Articles 81 and 82". This could be interpreted as encompassing sanctions on individuals as the effect of this would be to enhance the deterrent effect of the cartel prohibition. Article 23(5) of Regulation 1/2003 states, however, that decisions are not to be of a criminal law nature. The main purpose of the article is to provide a detailed analysis of the parameters taken into account by the Commission when imposing a fine, as well as the parameters used by the Court of First Instance when reviewing fines imposed by the Commission. In order to do this, we have reviewed all the Commission decisions and CFI judgments dealing with fines, which have been adopted since the publication of the 1998 guidelines. For each Commission and CFI judgment, we have identified the factors that have been taken into account to determine/review the fines imposed for infringements of EC competition law. The results of our analysis are summarized into two tables (one for the Commission decisions and one for the CFI judgments), which allow the reader to find for each case the factors that have been taken into account to determine/review the fines. This is the empirical side of the paper. While most of the papers analyzing the fining policy of the Commission discuss factors, such as the gravity or duration of an infringement, the presence of various mitigating circumstances, in a rather general or theoretical fashion, this paper provides precise data as to the elements that are most/least likely to be considered in the determination/review of fines. Thus, our table on the Commission decisions will, for instance, allow the reader to know in which cases, a cartel member was the leader and/or imposed coercive measures on other cartel members and to what extent this was considered as an aggravating circumstance. In turn, our table on the CFI judgments will allow the reader to identify the various reasons why, in a given case, the fine imposed by the Commission was reduced before the CFI. Another aim of the paper is to give a critical look at the Commission decisions imposing fines to see whether the reasoning on which there are based is coherent. As will be seen, it is often difficult to understand the logic of the fines imposed by the Commission. Identical factual scenarios will be treated differently, while different factual scenarios will be offer the same treatment. By contrast, we will not deal with theoretical issues, such as the optimal level of the fines or whether criminalization of competition law violations is desirable as there is abundant literature on this.

Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer

Abstract: Therapeutic jurisprudence (TJ) is maturing, moving rather rapidly from the world of theory to the world of practice. It is only natural, therefore, for therapeutic jurisprudence to work its way into the law school curriculum and into legal clinics and clinical legal education. In the area of criminal law, the practical side of therapeutic jurisprudence has, to date, been reflected more in judicial activity than among the practicing bar. Judicial interest is mounting internationally, especially in the areas of drug abuse, mental illness, domestic violence, and related concerns of the criminal justice system. Since judges are in an enviable position to influence local legal culture and climate, it is likely that courts will encourage the development of a criminal law bar attuned to these concerns. Indeed, even without a push from the judiciary, some lawyers have begun to practice criminal law in a specifically therapeutic key. Mostly, interested lawyers will likely augment a traditional criminal law practice with the more holistic approach suggested by therapeutic jurisprudence, and the present article seeks to point interested practitioners in that direction. In this article, I will identify the potential rehabilitative role of the attorney from the beginning stages - possible diversion, for example - through sentencing and even beyond - through conditional or unconditional release, and possible efforts to expunge the criminal record. This article has two principal purposes; first, to call for the explicit recognition of a TJ criminal lawyer, and to provide, in a very sketchy manner, an overview of that role; second, to propose an agenda of research and teaching to foster the development of the rehabilitative role of the criminal lawyer. While much of the proposed research would discuss the rehabilitative potential of applying the current law therapeutically, practitioners and scholars working in this area will also naturally have occasion to consider alternative approaches, resulting in proposals for law reform.

Decision Processes, Agency Problems, and Information: An Economic Analysis of Capital Budgeting Procedures

Abstract: Corporations use a variety of processes to allocate capital. This article studies the benefits and costs of several common budget procedures from the perspective of a model with agency and information problems. Processes that delegate aspects of the decision to the agent result in too many projects being approved, while processes in which the principal retains the right to reject projects cause the agent to strategically distort his information about project quality. We show how the choice of a decision process depends on these two costs, and specifically on severity of the agency problem, quality of information, and project risk.

Personal Insolvency Law After the Enterprise Act: An Appraisal

Abstract: This paper offers an appraisal of the recent reforms of personal insolvency law introduced in England and Wales by the Enterprise Act 2002 which came into force on 1 April 2004. The paper suggests that the new law has four key structural elements: (i) the reduction in the duration of bankruptcy, (ii) the lifting of statutory restrictions and disabilities hitherto imposed on undischarged bankrupts, (iii) the new regime of post-discharge restrictions for so-called "culpable" bankrupts, (iv) the introduction of a "fast-track" post-bankruptcy individual voluntary arrangement procedure supervised by the official receiver. The new law is examined in the light of the policies that it seeks to promote and the implications for debtor incentives are considered. The paper's principal conclusions are (i) that the legal incentives for debtors to opt for an individual voluntary arrangement rather than bankruptcy do not appear to be particularly compelling and (ii) that the significant investment required in a system that differentiates between "honest" and "culpable" bankrupts will only be worthwhile if credit providers are prepared to treat the former significantly more favourably than the latter.

The Culture of Private Law in Central Europe After Enlargement: A Polish Perspective

Abstract: On the basis of an analysis of selected pieces of legal discourse produced by the principal practices of Polish legal culture, the paper concludes that the said culture can be characterised as being highly positivist and dogmatic (formalist). This includes such features as a very narrow understanding of the notion of ‘sources of law’ (which are limited to written law but exclude e.g. precedent), textualism as the main approach to legal interpretation, as well as a high degree of abstraction of legal thought. These characteristics of Polish legal culture are explained by historical factors, especially the influence of 19th century Western European legal formalism, subsequently strengthened and preserved during the period of Actually Existing Socialism. In contrast, the style of the European Court of Justice is described as more pragmatic, and in particular open to the idea of precedent. It is argued that the exposure of Polish judiciary to European law will help to move the judicial discourse from formalism and dogmatism towards transparency and realism. The paper also notes the frequent use of Latin maxims in Polish case-law and treats it as a characteristic feature of Polish legal culture.

Shareholder Voice and Its Opponents

Abstract: This article revisits half of the classic governance dichotomy, “voice” and “exit” It aims to illustrate that the principal, legal arguments against shareholder voice—that shareholders neither own corporations nor are restricted by legal duties—are without merit It explains the legal nature of the property rights that shareholders have in corporations In an analysis restricted to US law, it presents the fiduciary and other types of duties that temper and restrain shareholder behaviour in ways very similar to the existing legal checks on management behaviour It also seeks to clarify why—although shareholders have complete freedom under US law to structure their corporations according to taste—they almost always end up the complete wards of management By way of conclusion, the article outlines how a steady increase in institutional ownership that continued at least until the end of 2004 has prompted measures that palpably facilitate shareholder voice

Personal Insolvency Law After the Enterprise Act: An Appraisal

Abstract: This article offers an appraisal of the recent reforms of personal insolvency law introduced in England and Wales by the Enterprise Act 2002, which came into force on 1 April 2004. The article suggests that the new law has four key structural elements: (i) the reduction in the duration of bankruptcy; (ii) the lifting of statutory restrictions and disabilities hitherto imposed on undischarged bankrupts; (iii) the new regime of post-discharge restrictions for so-called “culpable” bankrupts; and (iv) the introduction of a “fast-track” post-bankruptcy individual voluntary arrangement procedure supervised by the official receiver. The new law is examined in the light of the policies that it seeks to promote and the implications for debtor incentives are considered. The article's principal conclusions are (i) that the legal incentives for debtors to opt for an individual voluntary arrangement rather than bankruptcy do not appear to be particularly compelling and (ii) that the significant investment required in ...

Legal Ethics and the Separation of Law and Morals

Abstract: This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.

From Election to Government: Principal Rules and Deviant Cases

Abstract: This study focuses on the principal rules of government formation as well as on the deviant cases On a party level, over 1,000 cases and approximately 250 government formations in 17 West European countries during the second half of the twentieth-century are analysed By means of regression analyses, the study explores the effects of the size of the parties, other party characteristics, as well as characteristics in the party system on the choice of premier party and coalition party respectively The results show that the choice of premier party to a great extent is decided by the size of the party and the position as median party The choice of coalition party, however, is a far more complex process Favourable and unfavourable conditions are defined, and the deviant cases are identified, compared and analysed with respect to the choice of PM party and the choice of coalition party respectively The study shows that the deviant cases are not disparate On the contrary, the deviant cases form a set of rules of their own

Essay - The Author's Name as a Trademark: A Perverse Perspective on the Moral Right of 'Paternity'?

Abstract: The US Supreme Court in its 2003 decision in Dastar v Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name I will suggest that, contrary to the usual characterization of this right as flowing from the creative act, the attribution right also properly derives from trademark law, because the author's name gives her work a brand image that informs consumers' choices of literary and artistic works In trademark law, the brand name identifies the entity that controls the production of the goods, who is responsible for their quality Translated to works of authorship, this would mean that the act warranting name credit is that of controlling the carrying out of the creation, rather than of creation as such In copyright, however, the same concept could logically lead to depriving any employed creator, as well as a fair number of freelancers, of any right to impose their names on their works, because the employer or commissioning party will usually have the last word regarding the form or content of the creation It is therefore necessary to propose a more nuanced approach: if the creator has enjoyed autonomy in the creative process, even if the work was made on demand, the creator has engaged in intellectual labor that justifies treating the creator as the 'source' of the work Any other approach would end up denying the role of creativity in copyright But, as this Essay proposes to show, to reject all trademark-based rationales for attribution rights leads to other paradoxes

Corporations and other business organizations : cases and materials

Abstract: The Unabridged Tenth Edition, offers detailed information on corporate law and covers new principal cases, text, and explanatory materials designed to illustrate the development of corporate law. In preparing this edition, Professor Eisenberg reviewed all the principal cases and, where appropriate, re-edited them to tighten the writing while preserving a full-bodied presentation of the facts and discussion.

Special educational needs and the law

Abstract: Detail of the Act. The Act and persons with special educational needs (SEN). The Act and parents of children with SEN. The Act and children who do not have SEN. The role of the school. The role of the principal. The role of health boards. Ministers$$$ roles. Case law on SEN. Irish jurisprudence. International case law on SEN. Commentary and analysis.

Investment Considerations Under the Prudent Investor Act: Applicable Law

Abstract: The author starts with the observation that much of estate planning concerns itself with navigating the shoals of the estate and gift tax systems to bring assets safely home to the client9s desired beneficiaries. Unfortunately, this focus on the hazards of transfer often allows for scant consideration of how the assets should be managed once they are safely brought to port. It is not uncommon to provide simply that trust assets should be managed “prudently,” as that term is defined by applicable state law, for the benefit of one or more individuals for life and distributed to one or more remainder beneficiaries when the lead interest ends. The author thus addresses the legal framework of fiduciary investing, the Uniform Prudent Investor Act and its corollary act, the Uniform Principal and Income Act, which form the basic legal framework within which fiduciaries perform their duties. He also briefly addresses income tax law as it applies to trust taxation.

Evidence Law: When You are in a Hole, Stop Digging

Abstract: The law of evidence is in an unhappy state. At the time of writing this paper, in Australia alone three jurisdictions (New South Wales. Victoria and the Commonwealth jurisdiction) were (again) re-visiting the issue of what ought to be done with evidence law. There are two main reasons for the disorder in evidence law. The first is that it has no clear principal goal. The search for the truth (or the principle of reliability) is often trumped by considerations of fairness to the accused and the perceived need to discipline police. Secondly, the rules of evidence have not been verified by empirical testing. Lawyers 'think' that it is unwise, for example, to admit prior convictions but where is the 'evidence' for this? The key point we make in this paper is that before a rule of evidence is employed in the legal system it should be subject to the same degree of rigor and analysis as facts in issue in a case. A fact in issue cannot be established unless it is proven by the existence of (admissible) facts. The same approach should be adopted at the 'meta-stage' of evidence law, which consists of the rules (such as the hearsay and similar fact evidence rule) that determine the admissibility of specific items of evidence. Quite simply, we should have an evidence-based approach to the development of the rules of evidence. Before a rule of evidence is adopted there must be demonstrable 'evidence' that it will in fact achieve its stated purpose. Absent such proof we are forced back to the default position - all relevant evidence is admissible.

Common Interest Communities in Virginia: Legal Dilemmas and Legislative Responses to Self-Governance

Abstract: This article provides principal research in identifying and describing the nature and scope of current legal concerns within common interest communities (CICs) in the Commonwealth of Virginia. Very little federal guidance is available and Virginia statutes provide minimal direction in assessing the role of the many stakeholders in these “quasi-public” governing entities. Of paramount concern is determining the degree to which legal mechanisms should mandate liability at the risk of dissuading voluntary participation in associations and also determining with whom the rights and responsibilities of CIC activity should reside—-with the individual property owners, the majority of homeowners in the community as represented by a board, some governmental entity, or some combination of interested parties. This study, therefore, introduces the concerns of the Virginia courts and legislature, CIC attorneys, political scientists and management professionals as they grapple with finding a balance between preserving individual rights of property owners to self-manage and at the same time, ensuring collective responsibility and attention to the governing activities that demand public scrutiny. It concludes with their suggested remedies for securing an adequate balance resulting in a successful future for CICs in Virginia and across the country.

The Alien Tort Claims Act of 1789: Globalization of Business Requires Globalization of Law and Ethics

Abstract: Global corporations, operating in foreign host countries with dissimilar cultures and laws, political institutions and ideologies, commercial practices and customs and levels of economic development, are confronted with different ethical standards with which they gauge their conduct and ascertain their moral responsibilities.2 It is tempting in such cir cumstances to adopt the theory of ethical relativism ? under which something can be judged to be morally good if, in one particular society, it complies with the prevailing moral standards, but wrong if it does not and to declare that the proposed practice or activity is moraUy acceptable, because is conforms with the moral standards or practices ofthe particular society. It may be equaUy tempting to insulate or disassociate the company from questionable conduct of its host country partner, so that repercussions are muted or avoided. A decision of a three-judge panel of the Ninth Circuit Court of Appeals vitiates both tactics and potentiaUy exposes U.S. multinational corporations to liability for human rights violations committed by foreign governments in the course of under taking economic development projects. In Doe I v. Unocal Corp., the panel ruled that the residents of Myanmar, aUeging human rights violations forced labor, murder, rape and torture ? perpe trated by the Myanmar miUtary in developing a gas pipeline, were permitted to proceed with their action against Unocal Corporation, the Myanmar government's commercial partner in the pipeline development project, under the AUen Tort Claims Act. The Alien Tort Claims Act permits aliens to pursue a course of action in tort in the federal court for specific and egregious violations of human rights. Indeed, the Unocal decision by the panel of the Ninth Circuit Court of Appeals has caught the attention of major corporations, such as ExxonMo bil, Drummond, Occidental Petroleum, IBM, Citi bank and Coca-Cola that may face liability for the misconduct of third-world governments, and should be examined closely by aU multinational corporations that undertake economic development projects for repressive foreign governments in third world countries if they do not want "to face torture survivors in court a pubUcity nightmare."8 Hafled as a landmark case marking "The first time any court Edward f. Schoen is Dean of the Rohrer College of Business of Rowan University in New Jersey. He earned his B.S. degree in Accounting from La Salle University and his f.D. degree from Georgetown University Law Center. Dean Schoen's principal research interests are in the areas of First Amend ment protection of commercial speech, business ethics, and assessment of learning outcomes. Margaret M. Hogan holds the McNemey-Hanson Chair in Ethics at the University of Portland in Oregon. She is the Executive Director of the Garaventa Center for Catholic Intellectual Life and American Culture. She received her doctorate from Marquette University. Professor Hogan's principal research interests are in applied ethics, especially medical ethics and business ethics, and in natural law theory. Joseph S. Falchek is chair of the Department of Business and Management at King's College in Pennsylvania. He received his Masters Degree form Lehigh University and his f.D. degree from Temple University. Professor Falchek's principal interests are the intersection of law and management, business ethics, and constitutional law.

Transaction Surveillance by the Government

Abstract: This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization requirements, transaction surveillance is subject to far less regulation than either physical surveillance of activities inside the home or communications surveillance. My principal argument is that transaction surveillance should be subject to much more legal monitoring than it is. Part I explains why government, and in particular law enforcement, finds transaction surveillance so attractive, and why it is so easy to carry out in this digital age. Part II describes the current law regulating transaction surveillance. Not only is this regulation minimal, it is confusing and contradictory; beyond the traditional subpoena, challengeable by the target of the investigation, current law recognizes a number of subpoena mutations that seem to have little rhyme or reason. If it contributes nothing else, this article should at least clarify the nature of today's regulatory framework. Part III criticizes this framework and outlines a more promising approach. The proposed reform recognizes, as does the current regime, that different sorts of records merit different levels of protection. But, in contrast to current law, the proposal would significantly increase the degree of protection in a number of situations, to the probable cause level for personal records held by private and public entities and to the reasonable suspicion level for records readily available to the public. The relevance standard, which is all that is required today for any type of transaction surveillance, would be reserved for investigations of organizational crime and for obtaining isolated catalogic data. Part IV examines alternatives to these proposals. It rejects both an approach that requires probable cause for all records searches and, at the other extreme, an approach that would allow suspicionless records searches on condition that anything discovered is subject to strict limitations on disclosure. It also criticizes an approach that relies on the legislature, rather than the courts and the Fourth Amendment, to establish fundamental regulatory requirements.

Transaction Surveillance by the Government

Abstract: This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization requirements, transaction surveillance is subject to far less regulation than either physical surveillance of activities inside the home or communications surveillance. My principal argument is that transaction surveillance should be subject to much more legal monitoring than it is. Part I explains why government, and in particular law enforcement, finds transaction surveillance so attractive, and why it is so easy to carry out in this digital age. Part II describes the current law regulating transaction surveillance. Not only is this regulation minimal, it is confusing and contradictory; beyond the traditional subpoena, challengeable by the target of the investigation, current law recognizes a number of subpoena mutations that seem to have little rhyme or reason. If it contributes nothing else, this article should at least clarify the nature of today's regulatory framework. Part III criticizes this framework and outlines a more promising approach. The proposed reform recognizes, as does the current regime, that different sorts of records merit different levels of protection. But, in contrast to current law, the proposal would significantly increase the degree of protection in a number of situations, to the probable cause level for personal records held by private and public entities and to the reasonable suspicion level for records readily available to the public. The relevance standard, which is all that is required today for any type of transaction surveillance, would be reserved for investigations of organizational crime and for obtaining isolated catalogic data. Part IV examines alternatives to these proposals. It rejects both an approach that requires probable cause for all records searches and, at the other extreme, an approach that would allow suspicionless records searches on condition that anything discovered is subject to strict limitations on disclosure. It also criticizes an approach that relies on the legislature, rather than the courts and the Fourth Amendment, to establish fundamental regulatory requirements.

Taking legal aid to the people : unleashing local potential in South Africa

Abstract: Two of the principal elements necessary for the establishment, maintenance and expansion of legal aid services are funding and the political will to provide the services. As far as criminal legal aid is concerned, it is clear that the will exists and the levels of funding have increased steadily over the past few years. Civil legal aid is, however, almost non-existent and it is here that the greatest need lies. South Africa being a developing country with other pressing needs, it is unrealistic to expect any drastic state-sponsored intervention any time soon. It therefore becomes imperative that innovative measures to meet the demand for basic civil legal aid, using existing resources such as members of the legal profession, students, the university law clinic and the ward committee system, should be investigated with a view to implementing at least a pilot scheme.

Juridical and Ethical Aspects of the Fiduciary Obligation

Abstract: This article is a Festschrift contribution to honor the 70th birthday of Professor Joachim Hruschka. Professor Hruschka has enduring patience in exchanges with friends, colleagues, and students. I benefited much from his explanations of Kant’s moral philosophy and this article is an attempt to apply one aspect of Kant’s philosophy to the topic of fiduciary obligation. Law and economics scholars have argued that fiduciary duties can be explained best through the lens of contract. Courts, however, persist in referring to fiduciary duties as moral duties and insist that a fiduciary has an ethical duty toward the principal. This paper explores the ethical foundations that lurk behind the moral rhetoric in fiduciary law and concludes that the fiduciary duty of care is an ethical duty as understood in Kant’s moral philosophy. The twin duties that compose the fiduciary obligation, the duty of loyalty and the duty of care, include what is fundamentally a duty of virtue, or an ethical duty, but one that courts today call a legal duty. The paper discusses the fiduciary duties of loyalty and care. It then examines Kant’s juridical and ethical duties and the differences between them. The article then argues that the duty of loyalty is a juridical duty whereas the duty of care is an ethical duty. The article next explores how courts attempt to transform the duty of care into a legal duty to enforce the fiduciary obligation. Finally, the article discusses the legal standard – negligence – used to enforce the duty of care.

The Battle for Mindshare: The Emerging Consensus that the First Amendment Protects Corporate Criticism and Parody on the Internet

Abstract: This article describes the development of trademark liability for corporate criticism or parody on the Internet and the emerging judicial consensus that imposing liability on this form of political speech violates the First Amendment rights of Internet users. The article begins by analyzing the expansion of trademark rights from a method of protecting merchants against counterfeiting into a broad-ranging tort against any invasion of consumers’ good feelings towards a business or its products. Courts and Congress made this expansion possible by eroding the requirement of commercial competition as a prerequisite to trademark liability and by crafting sometimes overbroad rules against creating “initial interest confusion,” establishing negative associations with a trademark, or “cybersquatting” on a domain name similar to a mark. Fortunately, the federal appellate courts are making it increasingly clear that the First Amendment shields Internet speech devoted to criticizing or making fun of corporations from censorship under trademark law. The author argues that this emerging consensus is consistent with the principal normative justifications for trademark rights as a means of preserving valuable property interests and promoting economic efficiency. Finally, he contends that trademark rights should be restricted to policing commercial competition, rather than non-commercial Internet speech. This limitation is essential if consumers are to preserve their autonomy in light of the pervasive influence of advertising and their ability to participate fully in a democratic society in light of the considerable power of the business world. © 2004 Virginia Journal of Law & Technology Association, at http://www.vjolt.net. Use paragraph numbers for pinpoint citations. † Assistant Professor of Law, Florida International University College of Law. E-mail: htravis@post.harvard.edu. J.D., 1999, Harvard Law School. I thank Professors William W. Fisher III and Mark Lemley for introducing me to the intricacies of trademark law in cyberspace, and Jason King Binder, Soyoung Jung, and the Virginia Journal of Law and Technology for their editorial insight.

The Nature and Role of the Civil Service in Japanese Government Decision-making

Abstract: The nature and the role of the civil service in Japan are sufficiently elusive that analysis of the governmental policy-making process tends to focus on the extremes of party politics or the bureaucratic policy-making process, neither of which, in isolation, can reveal the real decision-making process. Analysis of governmental decision-making must focus more on the relation between politicians and civil servants. To this end, principal-agent analysis is useful, but questions remain as to who is the principal and who the agent. The prevailing assumption is that the Liberal Democratic Party LDP (currently the ruling coalition party) is the principal, and civil servants the agent1. However, since cabinet members are the masters of civil servants, an argument could be made that the prime minister and cabinet members must necessarily be the principal. This is particularly the case when other members of the LDP oppose the policies of the prime minister and cabinet members. In fact, who is the principal has varied from time to time and from event to event and politicians have always competed with each other to be the real principal to the civil servants agent. Despite this, there has been a prevailing misunderstanding that civil servants have enormous power to influence politicians and are able to neglect their minister's instructions. By providing an analysis of the historical development and the nature of the civil service in Japan, this paper attempts to present a more accurate picture of the relationship between politicians and civil servants and to describe the role of the civil service in the decision-making process. It also seeks to explain why, despite their role as agent for whatever principal, civil servants are widely regarded as powerful and reliable but also, in some cases, as culpable and blameworthy.

Mutual Monitoring versus Incentive Pay in Teams

Abstract: In a principal - multi-agent relationship, we derive the optimal mutual monitoring - incentive pay mix. When agents are better informed about their effort choices than the principal, and when their information is suffciently "good" there is a substituability between those two modes of providing incentives. However the optimal mix will depend on the liability limit of the agents. Thus when it is suffciently slack the principal uses stronger incentive pay and less mutual monitoring. We derive the conditions for the adoption of costly supervisory technology. We finish by comparing two possible organizational structures: delegation with unilateral supervision versus mutual monitoring.

By invitation only: the role of the AIRC in private arbitration

Abstract: One of the principal objectives of the Workplace Relations Act 1996 (Cth) is to ensure that the primary responsibility for determining industrial relations outcomes rests with employers and employees. At the time of introducing the legislation, the Coalition Government made it clear that a related goal of the Act was to reduce the intervention of third parties in this primary relationship. However, in one of the commission’s most significant areas of growth, the parties are increasingly inviting the commission to resolve disputes through private arbitration. This article explores the role of the commission in private arbitration in light of the objectives of the legislation. In particular, the article outlines the growth of private arbitration in practice and the development of the commission’s role in private arbitration through the decisions of the High Court and the commission.

Financial Compensation for Catastrophic Loss in the United States

Abstract: This paper addresses the complex institutional structure in the United States for dealing with victim compensation in cases of catastrophic loss. It will appear as a chapter in a multinational study that compares the institutional frameworks adopted by Western European nations and the United States. Part I of the paper focuses on catastrophic loss triggered by potentially responsible human agencies, and as a consequence, discussion of tort law is central. But what of situations where no human agency can be charged with responsibility for catastrophic harm? In these cases there is no recourse to tort in most instances, and victims of catastrophic loss ordinarily must rely exclusively on private insurance coverage, or, when available, on public insurance systems. The latter can be parsed into two separate categories: social welfare schemes (discussed in section II of this paper), such as government disability and unemployment insurance legislation, which are available to all claimants meeting general eligibility requirements - without reference to the source of the harm that has occurred. And, legislative no-fault or insurance schemes that have been established with designated types of catastrophic loss in mind. This second category of social welfare legislation is discussed, along with a description of private insurance coverage, in section IV - after examining the government agency whose work is devoted exclusively to disaster relief (in section III, on the Federal Emergency Management Agency). Section V of the paper serves as a reprise on the somewhat patchwork design of the U.S. system by isolating for special consideration three case studies of particularly salient disaster events that illustrate the range of approaches discussed earlier: First, the terrorist acts of September 11, and, in particular, the legislative no-fault compensation scheme that was enacted to compensate the personal injury victims; second, Hurricane Andrew, which initiated a mixed private/public insurance scheme in Florida and recast FEMA's approach to disaster relief; and third, commercial airline crashes, as a category, which invoke tort as the principal source of disaster relief compensation. A concluding section VI of the paper returns to a more general overview of the system, offering a brief final commentary on fairness and efficacy considerations.