The End of the Beginning? The Freedom of Information Bill 1999

With the publication of its plans for a Bill on Freedom of Information, the new Labour government has been accused of abandoning its promise of greater openness in the way government is conducted in this country and its proposals are seen as a departure from the highly applauded contents of the White Paper published in December 1997. The draft Bill has been pilloried by friend and foe alike. It is seen as a litmus test of Blair's government and where it really stands on the citizen/state relationship and how the future balance will lie between the executive and Parliament. The authors examine the events surrounding the publication of the Bill and its scrutiny by the pre-legislative select committees in the Commons and Lords. The Home Secretary has hinted at possible concessions in the light of fierce criticism. Is this a Bill worth saving and how can it be improved to capture a more appropriate balance between confidentiality, secrecy, and openness in the conduct of modern governance?     

The Evolution of Anti-dumping Legislation of European Union

The Course of DevelopmentJanuary 1, 1958 entry into force of the "European Econ-omic Community (EEC) Treaty", more commonly known as the"Rome Treaty," the establishment of the first European Econ-omic Community established based on the principle of the Cu…     

The inefficacy of private enforcement of directors’ duties

Company directors play an important role in society. Their activities have significant effects on the interests of their companies, shareholders and other stakeholders. Consequently, the law regards them as fiduciaries and imposes duties which set out behavioural expectations. The private enforcement regime is the primary mechanism adopted by many common law jurisdictions for securing compliance with directors’ duties. The crucial question is whether this regime is effective in securing enforcement of directors’ duties. This article addresses this question by examining the fundamental weaknesses of the private enforcement regime. In exploring these weaknesses, it focuses on the UK and Nigerian experience. It crucially argues that the private enforcement regime, due to its weaknesses, is unable to provide deterrence and compensatory benefits. It is therefore ineffective as an enforcement mechanism for breach of directors’ duties. This article therefore concludes that there is need for a complementary enforcement regime.     

The Enactment of Bayh–Dole

The Bayh–Dole Act of 1980 reversed 35 years of public policy and gave universities and small businesses the unfettered right to own inventions that resulted from federally funded research. The Act was opposed by the Carter administration, which had a different view of how to utilize the results of federally funded research to drive economic development. It is not widely appreciated that the bill had died in the regular sessions of the 96th Congress and was only passed into law in a lame duck session necessitated to pass the budget. Only a magnanimous gesture of respect for Senator Birch Bayh, who had been defeated in the 1980 election, on the part of Senator Russell Long allowed the bill to receive the unanimous consent needed to pass a bill in lame duck session. This article lays out the roles of the key congressional staffers who forged this historic compromise and the last minute maneuvers needed to obtain President Carters signature.     

The Sense of Justice—Introduction

Social Justice Research -     

The functional nature of police reform: The ‘myth’ of controlling the police

For at least fifty years, major movements attempted to reform police and their institutions through professionalization, policy making, and administrative decentralization. One major goal of these efforts was to subordinate street officer discretion to bureaucratic due process. Some recent evidence suggests that such reforms produced primarily the appearance of change without fundamentally altering the status quo. An alternative hypothesis is proposed: Reformers ignored the functional nature of the police role as community-based, extra-constitutional in peacekeeping situations, and reflective of the values related to the maintenance of order.

It may be that liberal society solves the anomaly of the police function by fostering the myth that police are subordinate to due process constraints, while leaving them relatively free in a practical sense to respond to the need for order maintenance and peacekeeping. Effective handling of disorder may require police autonomy, while attempting to subordinate them to bureaucratic control may impair this ability. Police accountability in liberal society, as well as the many reforms designed to achieve it, remains problematic, especially in light of a recent important study suggesting the possibility that police effectiveness against community disorder may be a casualty of many of these reforms.     

The Critical Instance ‘After’ The Critique of the Subject

The central argument of this piece involves the idea that insofar as␣critique, with its two basic tropes of question and judgment, has been central to the ȁ8classical’ configuration of subjectivity, the critical instance ȁ8after’ the critique of the subject is to be found re-situated on a different philosophical terrain where the question of the question is re-thought and the logic of judgment displaced by an ethic of encounter. It is on this terrain that we can then start sketching the emergence of a different set of critical instances: critical ontologies, critical analytics and critical erotics.     

The crime of the century? The case for the Holocaust

With the twentieth century now ended the Holocaust is surelya leading contender for the title of ``The Crime of the Century.'Although a massive literature exists on the Holocaust, very littleof this literature has been produced by criminologists. Somereasons for this relative neglect are identified and a case ismade for the claim that criminology can contribute to anunderstanding of the Holocaust and that the Holocaust cancontribute to the development of a more profound criminology. Thispaper draws upon an integrative criminological approach toconstruct a framework for understanding the Holocaust. This multi-disciplinary framework links philosophical, sociolegal,sociological, behavioral and criminological dimensions todiscriminate between unique and non-unique aspects of the Holocaustas a case of genocide and as crime. The paper closes with someobservations on the relevance of the Holocaust for challengesconfronting a twenty-first century criminology.     

The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”     

The Vicious Circles of Habermas’ Cosmopolitics

Habermas’ cosmopolitan project seeks to transform global politics into an emancipatory activity in order to compensate for the disempowering effects of globalization. The project is traced through three vicious circles which stem from Habermas’ commitment to intersubjectivity. Normative politics always raises a vicious circle because politics is only needed to the extent that an issue has become problematized through want of intersubjective agreement. At domestic level Habermas solves this problem by constitutionalizing transcendental presuppositions that political participants cannot avoid making. This fix will not work at the global level because it is pre-political as between human individuals. Habermas therefore premises cosmopolitics on the transformation of nation-states into sites of participatory politics, engagement in which will eventually ignite a global cosmopolitan consciousness. This transformation depends on the constitutionalization of existing UN structures and their enforcement of an undefined and (therefore) ‘uncontroversial’ core of human rights. Unable to ground this project in social practice, Habermas eventually disregards his own lodestar of intersubjectivity based in social practice by relying on the prediscursive concept of human dignity. This move is not merely philosophically inconsistent; it also opens the door to the moralization of politics and the imposition of human rights down the barrel of a gun.     

The Independence of Kosovo: A Unique Case of Secession?

The issuance of the Declaration of Independence by Kosovar authoritiesin February 2008 has been treated by the United Nations as notcapable of creating a precedent in international law. The questionremains as to whether the act was in conformity with internationallaw. In resolution A/RES/63/3, the United Nations General Assemblydecided to request the International Court of Justice to renderan advisory opinion on that question. The Kosovo case, consequently,raises issues that merit further consideration. A legal findingby the Court would be worth all this trouble if it clarifiedthe rules regarding post-colonial-age secessions, even thoughits conclusion on the situation of Kosovo will not be likelyto affect the matter of recognition to any great extent. Internationalintervention as a title to sovereignty is given some truth followingthese events concerning Kosovo. The conformity or not with internationallaw of a unilateral act always depends on the legality of boththe root for its initiation and the original rationale. Fromthis perspective, the independence of Kosovo is indeed a uniquecase of secession.     

The Two Pratyabhij?ā Theories of Error

In this essay, it is argued that Abhinavagupta’s theory of error, the apūrṇakhyāti theory, synthesizes two distinguishable Pratyabhij?ā treatments of error that were developed in three phases prior to him. The first theory was developed in two stages, initially by Somānanda in the Śivadṛṣṭi (ŚD) and subsequently by Utpaladeva in his Īśvarapratyabhij?ākārikās (ĪPK) and his short autocommentary thereon, the Īśvarapratyabhij?āvṛtti (ĪPVṛ). This theory served to explain individual acts of misperception, and it was developed with the philosophy of the Buddhist epistemologists in mind. In a third phase, Utpaladeva developed in his Śivadṛṣṭivṛtti (ŚDVṛ) a second theory of error, one that involved the noncognition of non-duality (abhedākhyāti) and served to explain both the appearance and perception of multiplicity, despite the strict monism to which all Pratyabhij?ā authors subscribe. Abhinavagupta’s treatment of error, then, is significant not only because it was meant to explain all the various theories of error offered by opposing philosophical schools, as Rastogi has shown, but more importantly because it synthesized the thinking of his predecessors on the matter in a single, elegant account of error.     

The nature of the Mādhyamika trick

This paper evaluates several recent efforts to interpret the work of Nāgārjuna through the lens of modern symbolic logic. An attempt is made to uncover the premises that justify the use of symbolic logic for this purpose. This is accomplished through a discussion of (1) the historical origins of those premises in the Indian and Tibetan traditions, and (2) how such assumptions prejudice our understanding of Nāgā rjuna’s insistence that he has no “proposition” (pratijñā). Finally, the paper sets forth an alternative interpretation that takes into account the literary dimensions of Nāgārjuna’s writing.