“Opt in” and “opt out” mechanisms in the internet era – towards a common theory

In order to provide for adequate legal protection mainly in mass-transactions on the internet, both the legislature and private parties increasingly, resort to so-called “opt in” and “opt out” mechanisms. Whether or not an “opt in” or an “opt out” mechanism is used is often decided on a case-by-case basis. The same is true regarding the circumstances under which private parties are or should be allowed to resort to “opt out” mechanisms, and if so, what restrictions should safeguard the free will of the addressees of such mechanisms. This paper argues that the existing “opt in” and “opt out” schemes should not be regarded and discussed as isolated phenomena. Rather, they should be analyzed from the viewpoint of a common underlying legal theory which builds on the common character of the underlying regulatory structure of all “opt in” and “opt out” schemes. This requires a complex matrix which comprises not only the opposites of “in” and “out”, but also of “active” and “inactive”, of “preference” and “non-preference” for the respective default rules, as well as of “ex ante” and “ex post” enforcement of the law. It also involves normative, economic, psychological and, last but not least, technical issues.     

Charging children with child pornography – Using the legal system to handle the problem of “sexting”

No one would disagree that the purposes and aims of child pornography laws are legitimate and necessary. Recently, however, these laws, which have the ostensible aim of protecting children, are instead being used to punish children and dissuade the new phenomenon of “sexting” in the United States. “Sexting” refers to the use of mobile phones with built-in cameras to produce and distribute images of oneself in a sexually provocative or revealing position. The potential danger that this trend poses to minors is huge. Photographs produced by the use of “sexting” can be distributed to unintended third parties, often leading to embarrassment and harassment. Moreover, senders are also in danger of being charged with possession and distribution of child pornography, regardless of the fact that they are minors and the pictures are often of themselves. Not only is charging minors with child pornography a rather new phenomenon, it also appears to be a strategy that several states are adopting. This paper will look at the growing trend of charging minors who engage in “sexting” with child pornography charges by a case study of an actual prosecution, what the consequences of such a conviction entails in the United States, legislative responses, and an analysis of the appropriateness of using the legal system as a way of dealing with this problem.     

An ID card for the Internet – The new German ID card with “electronic proof of identity”

The personal ID card is a document carried by most Germans, but rarely used. This could change in the future: According to the new law on identification cards and electronic proof of identity (Gesetz über Personalausweise und den elektronischen Identitätsnachweis, PAuswG), the ID card, with its proof of identity, will gain a new functionality, making it applicable for diverse Internet transactions. Functionally, the electronic proof of identity corresponds to existing non-electronic personal proof of identity guidelines in legal and business connections. However, its concrete, technical application opens up many issues regarding contracts and data privacy laws. On both the legal and the technical level, the German approach departs from other European countries, as it strictly distinguishes the electronic proof of identity from the electronic signature function, which the new ID card also provides. It remains to be seen whether the various projects of the EU Member States will become legally and technically interoperable in the near future.     

Universal Credit, ‘Positive Citizenship’, and the Working Poor: Squaring the Eternal Circle?

This article examines the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants. This legislation illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low‐paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions. It may be that the Act attempts too much reform to the social security system, trying to impose legislative uniformity on a highly complex set of socio‐economic circumstances which may be impervious to such rationalisation. This could result in the scheme requiring further reform, or even abolition. The ideological and historical underpinnings of Universal Credit are also examined to understand more clearly its nature and structure.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

Seeing,Moving, Catching,Accumulating: <Emphasis Type="Italic">Pokémon GO</Emphasis>, and the Legal Subject

This paper argues that the augmented reality gaming application for smart devices, Pokémon GO shows the fate of the legal subject as a neoliberal monster subjugated to the limitations imposed by hypercapitalism. The game, derived from Nintendo’s iconic Pokémon franchise, reveals the legal subject as a frenzied, diminished and impulsive being, allowed to see, move, catch and accumulate but unable to participate in more meaningful self-narration. It is not that the game is lawless, notwithstanding, anxieties in the semiosphere about users trespassing or engaging in criminal behaviour. Rather the game is over structured and highly limited, both within its game-play which is repetitive and impulsive, and in its absence of narrative. Unlike the classic Nintendo Pokémon games which are within the role-playing game genre, Pokémon GO abstracts the seeing, moving, catching and accumulating features of the classic games without the overarching narrative, questing and competition. In this Pokémon GO manifests the transformation of the liberal legal subject of capitalism to the neoliberal subject of a digital orientated hypercapitalism where seeing, moving, catching and accumulating is immediate and impulsive, obliterating the ‘prudent’ subject participating in their own self-narration.     

Knowledge flows,the influence of national R&amp;D structure and the moderating role of public–private cooperation

This paper analyses country-specific determinants of knowledge flows with a view to uncover the role of cross-organizational interactions. Using a sample of some 600,000 patents from the EU27 member states in the period 1990–2007, we take backward citations as dependent variable and find that technological sophistication and research size have a positive effect on knowledge flows. While a national bias towards applied research and development has a negative impact, individual public–private cooperation has a moderating effect due to the generation of scientific knowledge by public institutions. The present study contributes to the debate concerning the direction of R&D investments and provides empirical support to policies aimed at the enhancement of public–private cooperation.     

Architecture of Sovereignty: Bosnian Constitutional Crisis,the Sarajevo Town Hall,and the <Emphasis Type="Italic">Mêlée</Emphasis>

This paper addresses the processes by which the international community intervened and participated in the defining of Bosnian identity and the corresponding constitutional framework, as well as the continuous paradoxical tension between the ethnic local and claims to universalism of supranational legal norms. In particular, the 1995 Constitution and the architecture of its sovereignty have been contested through provisions of the European Convention of Human Rights. The analysis is further supported by the discussion of the architectonic structure of the Town Hall/National Library in Sarajevo that has had an important constitutional role since the collapse of the Ottoman period. The paper thus focuses on two sites for construction/deconstruction of Bosnian sovereignty: the constitutional framework and the more concretely visible architectural symbol of the Town Hall/National Library. This importance of a visual and spatial approach to Bosnian realities is carried further by the 1993 ‘Eulogy’ that Jean-Luc Nancy wrote for Sarajevo, as a site of the Mêlée.     

“Tort Tales” and TV Judges: Amplifying,Modifying, or Countering the Antitort Narrative?

This article joins the debate about the popular pervasiveness of antitort and antilitigation attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered by reality‐based television judge shows. Given the persistent debate about tort reform and scholars' recognition of the role played in this debate by simplified narratives about the legal system, we analyze whether reality‐based TV judge shows as a genre contribute to the creation and dissemination antitort and antilitigation sentiment. Earlier studies led us to hypothesize that TV judge shows would largely support the antitort and antilitigation narratives. After coding over 55 hours of such shows, however, we conclude that they do not adopt this narrative. Rather, these shows present a view of the civil law system that largely treats plaintiffs' claims as legitimate and showcases the majority of defendants as wrongdoers. In spite of this, we argue that the particular dramatic qualities of TV judge shows limit their potential to serve as a strong counternarrative to antitort and antilitigation stories.     

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

Blinking Subjects; Blinking Justice? – Law,Medicine and the PVS Patient

This paper argues that in medical discourse, there is insufficient unanimity of opinion with regards to the time at which an accurate diagnosis of PVS can be made and that clearly, there is an incomplete medical knowledge of the PVS condition. The judiciary chooses neither to question medical opinion that patients can be considered to be in PVS despite a failure to satisfy the diagnostic criteria, nor medical opinion that patients in `near PVS' will never recover. It is apparent from an examination of the judgements given in PVS cases that the law does not ascribe such individuals with full human status. Such a legal position is particularly problematic in ethical terms when applied in cases involving patients who are in a `near PVS' position, and in the light of evidence that some PVS diagnoses are inaccurate. The application of the best interests test in PVS cases results in the adoption of a paternalistic, objective approach that fails to respect the former competent individuals whom PVS patients once were. If, alternatively, the substituted judgement test were to be adopted, the principle of individual autonomy would become central to the question of whether PVS patients' treatment should be withdrawn. Furthermore, the application of this test would also ensure that PVS patients continue to be viewed as `persons'.