Introduction 15th annual conference of the european association of law and economics, utrecht, the netherlands, september 1998

This issue of the International Review of Law and Economics contains a selection of papers presented at the 15^th Annual Conference of the European Association of Law and Economics (EALE). It was the first time that the annual conference of the EALE was held in the Netherlands. It took place at Utrecht, in September 1998.Approximately 40 papers were presented at the conference. Many of these papers were submitted to this issue of the International Review of Law and Economics, and we were obliged to face the difficult task of selection. In this task we were helped by anonymous referees, who deserve much credit for their delicate task. The issue opens with the text of the invited lecture by Chief Judge Richard Posner on “Employment Discrimination: Age Discrimination and Sexual Harassment.” After this lecture, seven refereed papers are published. They cover a wide range of topics and include theoretical and empirical approaches.The first two articles are empirical studies. In their article “The Dynamics of Pretrial Negotiation in France: Is there a Deadline Effect in the French Legal System?,” Bruno Deffains and Myriam Doriat provide empirical evidence on pretrial negotiation in France with the primary goal being to determine whether there is a deadline effect. Theoretical and experimental studies generally show that in pretrial litigation most claims are settled just before the negotiation deadline, i.e., at the door of the court. Using data on civil law conflicts in France, the authors demonstrate that although the out-of-court settlement rate is relatively low, a deadline effect exists in the French legal system. The article complements the theoretical and experimental literature in the field of pretrial negotiation and provides additional insights into the functioning of the legal system.The article “Modeling Crime and the Law Enforcement System” by Frank van Tulder and Abraham van der Torre presents a macroeconomic model of the Dutch criminal justice system. The empirical estimations show that demographic, social, and economic factors and the results of the law enforcement system influence the number of crimes. It is found that a rise in the clear-up rate reduces the crime rate, whereas the average term of imprisonment has a negative impact on violence. A growth in the number of young men, divorced persons, unemployed, drug addicts, and motor vehicles—each per capita—and a rise in income inequalities have a boosting effect on one or more types of crime.The third article by Michael Faure and Paul Fenn is concerned with the costs and benefits of making liability for accidents retroactive, given the availability of liability insurance. The authors distinguish between the injurer’s perceived risk that the standard of care applied by the courts will differ from his chosen level of care, where this perceived risk is based on precedent or current practice, and the genuine uncertainty that the standard of care may change in the future as a result of unknown developments in the technology of care. While the injurer’s probability distribution over liability may be the same in each of these cases, he may be far less confident about the reliability of the probability distribution as a guide to choice in the latter case. In principle, the risk of liability arising from an unknown standard of care could be transferred to a liability insurer through the purchase of occurrence coverage. However, in addition to the usual source of difficulty for insurance markets as a result of information asymmetry, insurers also may have distaste for ambiguity. The authors show that this could in some circumstances lead to market failure in the provision of occurrence policies. These welfare losses from inefficient risk sharing as a consequence of retroactivity must, therefore, be set against the potential welfare gains from improved incentives for injurers to seek out information on care technology, as well as the concerns over distributive justice.In their article “Unitary States and Peripheral Regions: A Model of Heterogeneous Spatial Clubs” Jean-Michel Josselin and Alain Marciano develop an analytical framework for understanding the limits of constitutional unity. Their microeconomic model of unitary states deals with two kinds of heterogeneity. First, preference distance or physical distance account for decreasing net benefits from expansion. Second, heterogeneity may involve a discontinuity in the spatial pattern of preferences: “Peripheral behaviors” threaten unity. The authors integrate such behaviors into the model and draw some lessons as to the nature of an optimal constitutional area, discussing in particular the status of peripheral regions.The fifth article by Benito Arrunada, entitled “The Provision of Non-Audit Services by Auditors: Let the Market Evolve and Decide,” searches for and defines efficient regulation of the provision of non-audit services by auditors to their audit clients. From an examination of the particular problems posed by these services, it is concluded that they reduce total costs, increase technical competence, and stimulate more intense competition. Furthermore, they do not necessarily damage auditor independence or the quality of non-audit services. This assessment leads to recommending that legislative policy should aim at facilitating the development and use of the safeguards provided by the free action of market forces. Particular emphasis is placed on the role played by fee income diversification and the enhancement, through disclosure rules, of market incentives to diversify. A rule of mandatory disclosure of client diversification is examined to facilitate the task of the market with regard to achieving the optimal degree of auditor independence.In the next article, Antony Dnes applies the economic analysis of law to examine recent proposals in England and Wales for the reform of the law affecting financial settlement following divorce. Two specific measures have been proposed to reduce judicial discretion: a mathematical formula (such as a rebuttable presumption to divide equally the whole pool of assets during divorce) to be applied in the absence of agreement between the parties, or the enforcement of prenuptial agreements. The author concludes that these measures should be welfare improving but would need to be forward looking and applied to marriages, rather than divorces.The last article by Niva Elkin-Koren and Eli Salzberger provides a look at the changing world of law with the emergence of cyberspace from the perspective of the economic approach to law. The authors argue that the Chicago paradigm cannot be of much help to analyze law in and of cyberspace. While cyberspace reduces the traditional causes of monopolies, it introduces new types of monopolies that are the consequence of control over technologies rather than of price and demand curves. Second, the strict correlation between markets and states does not exist in cyberspace. The authors equally point at the weaknesses of transaction cost analysis. The Coaseian analysis assumes a given state of technology and overlooks the correlation and reciprocity between technological developments and legal rules. The authors consider neoinstitutional law and economics as the most suitable framework for examining the changing world of cyberspace, but they suggest some refinements. Cyberspace invites a reassessment of the borders between markets and hierarchies and poses special challenges to the paradigmatic assumption of rational behavior.     

The rhetoric of personal loyalty to superiors in criminal justice agencies

Nowhere in public law is the idea of personal loyalty to superiors mentioned, yet criminal justice practitioners suffer from a “personal loyalty syndrome.” This syndrome holds them responsible to an altogether different set of loyalty expectations. They are often compelled to offer personal loyalty to unworthy superiors and, as a result, violate constitutional provisions, legal requirements, or the public good. While no organizational rules require any such loyalty, criminal justice practitioners are invariably taught that issues of loyalty at the workplace are so important that one cannot survive without personal loyalty to superiors. They are also reminded that violating such a “commandment” is a cardinal sin that can destroy one's career. This article discusses the arguments for and against personal loyalty to superiors and the dangers inherent in such relationships. It explains the grammar of loyalty at the workplace, explores the paradoxes of personal loyalty to superiors, and suggests a duty-based model as an alternative to the current model.     

Law of assembly in China: People''s Republic of China vs. Republic of China

This paper is a comparative study of law of assembly between the People's Republic of China (PRC) vs. the Republic of China (Taiwan) (ROC). The comparison is achieved by looking at how these two societies regulate and police assembly, procession, and demonstration (hereinafter “public assembly”). Particularly it looks at the constitutional mandate and legal limitations on police powers in managing such public gatherings, e.g. what are the role and functions, and powers and limitation of the police in dealing with public assembly application and conduct.This comparative project is conducted with a view to understand the relative development in police powers in the two Chinese societies, once linked by history and culture and now divided by geography and ideology. It is assumed that in order to achieve a political “unification” of the two societies under a “one country two systems” formula,or any other viable political settlement, some understanding of how the two legal systems work is important in breaching their differences.In a still larger context, this research rides the tide of comparative policing in exposing and explicating how police in these two closed societies, ROC (Confucianism) and PRC (Socialism), come to terms with social protests and political challenges; more broadly how they balance the forces of reform and control with the use of law.     

US concept wars,civil liberties and the technologies of fortification

The horrific events of September 11, 2001 led to calls for the deployment of state-of-the-art security systems and the creation of an “invisible shield” to protect America. Such proposals immediately triggered debate about the constitutional ethics of surveillance in the United States. While there has been widespread support for the surrender of some cherished civil liberties in the war against terror, surveillance, especially the visual variety, is still seen to be innately un-American. Technologies like biometric face recognition systems, critics argue, are not consistent with the values of an open society and should consequently be considered with great caution. The widespread introduction of such invasive technology, pundits claim, would signal a victory for the terrorists.Many American commentators fail to recognize, however, that the United States, far from being the open society they imagine, has long been characterized by exclusion. Moreover, such exclusion is increasingly enforced by the same high technology of which biometrics is a part. In fact, for at least a decade before the declaration of the war on terror, the United States has been undergoing a multifaceted process of fortification both within its cities and at the US-Mexican frontier. Investigation of this phenomena reveals the central role of the US’s longest running concept war, the war on drugs. This paper argues that within this narrative biometric surveillance and the creation of “an invisible wall” should not be regarded as a break with American traditions but as the next organic phase of an ongoing process of fortifying the United States.     

相似宪法文本的不同命运——《钦定宪法大纲》与《明治维新宪法》的不同结局探析

尽管《钦定宪法大纲》在立宪理念、立宪过程、文本结构等方面都与《明治宪法》存在着巨大的相似性,但二者的命运却迥然不同,其原因由《钦定宪法大纲》和《明治宪法》在制定时中日两国在政治、经济、外交环境,乃至族群关系等具体因素上的差异所导致.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.     

Victim or injurer, small car or SUV: Tort liability rules under role-type uncertainty

In this paper we modify the standard tort model by introducing role-type uncertainty. That is, we assume that neither party knows in advance whether she will be the victim or the injurer when an accident occurs. When the standards of care of the two parties are set at the socially optimal levels, only pure comparative negligence and the equal division rule guarantee efficiency, while the rules of simple negligence, contributory negligence, and comparative negligence with fixed division (other than a 50:50 split) may produce inefficient equilibria. Since pure comparative negligence splits liability between negligent parties according to each party's degree of fault, it makes the accident loss division independent of one's role-type. This produces its efficiency advantage.We extend the model to the choice of vehicle size, as a factor determining who will be the injurer and who the victim in motor vehicle collisions. In the extension we analyze various standard negligence-based liability rules, and tax rules, as instruments to mitigate inefficiency resulting from the vehicle size “arms race.” We also examine two strict liability rules, one of which incorporates a comparative negligence feature; this rule prevents inefficiency from both role-type uncertainty and from the “arms race.”     

The Material Constitution

What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. Moving beyond the interwar constitutional theories of Heller and Mortati, the paper outlines the four ordering forces of the material constitution: political unity; a set of institutions; social relations, and fundamental political objectives. These forces constitute the substance and dynamic of constitutional ordering, in internal relation with the formal constitution. Because these ordering forces are multiple, and in tension with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterises the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.     

The new global network of corporate power and the decline of national self-determination

The cold war years witnessed the steady deterioration of America's machine tool base and the start of the migration of U.S. production into Third World countries. Not merely America but also the very core of Western production was and still is going global. Quite recently a new development appears, namely, public and private sector corporations from once peripheral and semi-peripheral areas moving assembly plant production into North America and parts of Europe, and some of them have already purchased a number of American corporations which had not gone global. As the old center deteriorates, the once peripheral and semi-peripheral enterprises close in on it forming the present global corporate network — one which locks all national economies into the global economy and increasingly renders nations powerless to control their own socioeconomic destiny. In a very real sense, with the possible exception of nations that control giant public sector multinational firms, all nations are becoming peripheral, but peripheral to the new supranational network of corporate power. These complex processes which followed unerringly from corporate delinquencies of the cold war mean that the mainstream theories of global development as enunciated by Andre Gundar Frank, Samir Amin and Immanuel Wallerstein, for example, require overhauling. This paper expands this thesis and offers an alternative to contemporary global development theories.     

Practical guidelines on incorporating “partnering” within IT agreements for public sector bodies

“Partnership” and “partnering” are two of the most frequently used terms in public sector procurement. They may be used by both customers and suppliers to justify their respective negotiating positions. A supplier may argue that, since the agreement is a “partnership agreement”, there should be no service credits or liquidated damages payable. The customer on the other hand, may argue, on similar grounds, that it wants to benchmark the supplier and have a broad right to audit every aspect of the supplier’s business.But despite being well used phrases, most guidance relating to these concepts does not define how “partnerships” or “partnering” is to work in practice. While most talk of the supplier and the customer working together “in partnership” with common aims, there is little information available as to how this will be incorporated into agreements, particularly in the context of large scale IT procurements.¹ The purpose of this article is to review the available guidance and detail some of the ways in which this guidance can be incorporated into legal agreements.     

BREXIT,democracy and the rule of law

This article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to understand the dynamic and unresolved tensions built into the very idea of the European Union. It describes the EU as a forming a supranational constitutional space which does not supersede nation states, but instead seeks to preserve their specific identities while promoting and protecting the fundamental values they are called upon to embody as liberal constitutional democracies. The article then critically examines constitutional developments in the UK subsequent to its decision to leave the European Union and suggests that, paradoxically, it may have been the European Union which held the post-War post-imperial United Kingdom together and, without it and outside it, we may anticipate the UK's imminent dissolution into its original constituent nations – Brexit leads inexorably to BreUK-up.     

A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

Abstract: What is the role of the nation‐state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration.     

何谓合宪性解释：性质、正当性、限制及运用

法律的合宪性解释是指法律有两种甚或多种解释可能时,择取其中与宪法不相抵触的解释。合宪性解释是一种法律解释方法,更是一项法律解释要求。此种解释方法对于维护国家法秩序的统一与稳定不可或缺,其正当性源于权力分立原则下的司法自制理念。合完性解释有其运用上的限制,对于字义本身违宪之法律适用合宪性解释是对此种解释方法的滥用与误用。在美国、德国等实行宪法审查的国家,合宪性解释方法在其司法实践中得到了广泛运用。具有实效性的宪法审查制度在我国尚未真正建立,合宪性解释方法在我国的司法裁判中有无适用空间值得商榷。     

The fertility decline in the Dutch province of Limburg, 1880–1960: On understanding historical actors in a constrained environment

The Dutch province of Limburg is mentioned in the European Fertility Project studies because of the fact that its fertility was remarkably high well into the twentieth century and declined only gradually. This article explores the structural background of changes in reproductive behavior in Limburg. The province is economically differentiated in industrial areas and traditional agricultural regions. Also, there is a clear cultural heterogeneity. Using data at the community level, the article analyzes of the economic motivation as well as of the mental acceptation of the introduction of neoMalthusian behavior. The results show that we are better able to explain the variance in behavior as the twentieth century proceeds, and that the factor “economy” appears to be the best predictor, although the effects of a cultural filter become evident.     

Academic credit for life experiences in criminal justice: Issues and concerns

This article focuses on awarding credit for life experiences (work experience, training, or other forms of experiential learning) in criminal justice education. The efficacy and consequences of this practice are explored in an attempt to delimit the issues and raise relevant questions that need to be explored in developing policies for awarding such credit. The authors raise questions concerning the definition of viable and relevant experiential learning and the process of evaluating life experiences. The article also discusses the need to consider a number of factors in implementing a credit-for- experiential-learning program; for example, the implications for “in-service” versus “preservice” students, extra-university regulations, the transferability of credit to other institutions, and the importance of a careful assessment of the overall impact on the criminal justice system and on criminal justice as an academic discipline.     

Juvenile conference committees: An evaluation of the administration of justice at the neighborhood level

The Juvenile/Family Court has significant problems in dealing efficiently and effectively with its caseload. Due to the pressure of “serious” juvenile crime, a large volume of status offense and minor crime cases, although of significant social consequence, are dismissed by the court. The concept of “neighborhood justice” has provided one basis for dealing with such cases.This is a report of a process evaluation of New Jersey's Juvenile Conference Committee (JCC) program, which provides an extensive network of citizen tribunals as an arm of the court. The evaluation was designed to explore both structural and procedural aspects of the JCC with a focus on policy implications. Results show that the JCC is a major diversion mechanism. Questions are raised, however, as to the purpose of intervention in cases of minor delinquency and the adequacy of current JCC procedures in dealing with such cases. The conclusion is reached that the citizens' tribunal is an important mechanism for community development.     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

成文宪法中的宗教内容比较研究

宗教信仰自由权是世界范围内各成文宪法保护的重要内容。与其他人权的宪法保护不同,宗教信仰自由权在各国宪法中具有扩散性保护特征。只有综合考量宪法规范中的宗教内容,才能准确理解宗教信仰自由权的宪法规范保护。通过在各成文宪法中查找与宗教相关的关键词,可以发现宗教信仰自由权成文宪法保护具有普遍性。以宗教信仰自由权为核心,辅之以政教关系的相关规定,构成了宗教问题宪法保护的基本框架。从内容上看,成文宪法保护的宗教信仰自由权具有内容的绝对性与相对性相统一、主体自主选择与结社自由相结合的特点;从属性上看,宗教信仰自由权具有入世性与政治性并存的特征。     

Review: The physiology of saliva and transfer of drugs into saliva

Although saliva or oral fluid “lacks the drama of blood, the sincerity of sweat and the emotional appeal of tears”, quoting Mandel in 1990 [I.D. Mandel, The diagnostic uses of saliva, J. Oral Pathol. Med. 19 (1990) 119–125], it is now meeting the demand for inexpensive, non-invasive and easy-to-use diagnostic aids for oral and systemic diseases, drug monitoring and detection of illicit use of drugs of abuse, including alcohol. As the salivary secretion is a reflex response controlled by both parasympathetic and sympathetic secretomotor nerves, it can be influenced by several stimuli. Moreover, patients taking medication which influences either the central nervous system or the peripheral nervous system, or medication which mimic the latter as a side effect, will have an altered salivary composition and salivary volume. Patients suffering from certain systemic diseases may present the same salivary alterations. The circadian rhythm determines both the volume of saliva that will and can be secreted and the salivary electrolyte concentrations. Dietary influences and the patient's age also have an impact on composition and volume of saliva. The latter implies a wide variation in composition both inter- and intra-individually. Sampling must therefore be performed under standardized conditions. The greatest advantage, when compared to blood sample collection, is that saliva is readily accessible and collectible. Consequently, it can be used in clinically difficult situations, such as in children, handicapped and anxious patients, where blood sampling could be a difficult act to perform.     

Psychological models of mental disorder, human rights, and compulsory mental health care in the community

Recent amendments to the 1983 Mental Health Act in the UK (Mental Health Act 2007) include the controversial provision for: “supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital”. This provision is widespread, and more formal, in other English-speaking jurisdictions. Reviews of the international literature, human rights considerations and the perspective of psychological approaches to mental health care suggest that proposed ‘supervised community treatment orders’ are valuable, lawful, and compatible with the European Convention on Human Rights if certain specific conditions are met. Provisions for ‘supervised community treatment orders’ in the UK should be supported, but with the provisos that: the powers of the Mental Health Act are limited as in Scotland, to persons whose “ability to make decisions about the provision of [care] is significantly impaired”, that each order is time-limited and subject to review by a properly constituted Tribunal, and that the use of such orders should represent a benefit to people in terms of more appropriate treatment, or be a least restrictive alternative, or better preserve the person's private and family life.