Fraud against European Public Funds

This article considers the approach adopted towards the fight against fraud within the European Union. It considers the role(s) of the various agencies at both a transnational and national level. It concludes that it is impossible to effectively fight transnational fraud across fifteen different legal systems. There is an urgent need for the “Corpus Juris” proposals to be adopted so that a defined European legal space can be created which is able to deal with crimes against the European budget. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction

This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome. This revised version was published online in July 2006 with corrections to the Cover Date.     

U.S. CLS

This essay offers a brief account of the rise of cls thought in the United States and of its development within a largely hostile legal academy. As the essay suggests, cls thought has been variously deformed, arrested, normalized, and diffused – leaving the contemporary American legal academy in a state of suspended animation. This revised version was published online in July 2006 with corrections to the Cover Date.     

The evolution of European legal integration

This article contributes to the development of theories on European integration by testing and exploring statistical models on the long-term development of legislative activity of the European Commission. Drawing on legal information gained from the European Union’s PreLex database and analyzing it with the help of statistical analyses, we map out growth patterns of EU law between 1976 and 2003. We construct time-series models and models based on non-linear regression. While the performance of models based on the traditional theoretical approaches, intergovernmentalism and neo-functionalism, is rather poor, the analysis suggests that nonlinear dynamic models might be an interesting avenue for future conceptualizations of the EU integration process. This article is based on a paper presented at the ECPR Standing Group on the European Union Second Pan-European Conference on EU Politics, “Implications of a Wider Europe: Politics, Institutions and Diversity”, 24–26 June 2004, Bologna, Italy. We would like to thank the seminar participants for useful comments.     

Concerted Practices and the Presence of Obligations: Joint Action in Competition Law and Social Philosophy

This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman’s model of joint action is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert’s in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and Bratman’s models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for concerted practices.     

On the unification of legal rules in the European Union

Unification of legal rules in Europe is not a new phenomenon. However, nowadays, Europe is still an area with many different jurisdictions. This paper studies the process of unification of legal rules in the European Union within a non-cooperative game-theoretical framework. This paper contributes to the understanding of the process by concentrating on the role of the European Commission. In the law-and-economics literature, it is argued that national legal rules will converge more or less spontaneously through the works of legislators and judges. But legal convergence in the European Union is not inevitable: preferences toward legal rules differ across nation-states; substituting a legal system for another one is costly; a coordination problem may arise. We first study the interactions of two nation-states who choose non-cooperatively their legal rules. We shall argue that the action of the Commission is, at first sight, likely to eliminate the coordination problem (under certain conditions). Two factors are at work. First, the Commission has a certain expertise which enables it to propose new and perhaps more efficient rules (so that the choice of unification does not reduce to select a particular nation-state legal system). Second, the Commission may use a system of fines that induces nation-states to abide by its rules (once these rules are adopted by nation-states). Next, we refine our first model: the process of legal unification is viewed as a game where nation-states choose the game that they will play. They choose if they will try to reach an agreement without resorting to the actions of the Commission, or if they will play the game implicitely proposed by the Commission. This captures more precisely the action of the Commission, its ‘right of initiative’’, the publication of proposals in ‘green’’ or ‘white papers’’. In this second model, a coordination problem may arise. JEL Classification C72 · K00     

Corruption and the South African Police

The literature on corruption in countries in the course of transition is likely to escalate in the light of changes in Eastern Europe (Holmes 1997, Varese 1997). The ‘end of empire’ is associated with the breakdown in the rule of law. Through a variety of subterfuges, both individuals and corporate bodies seek to ensure their own survival, within the matrix of the collapse of legal order. In South Africa, similar transformations, as epitomised by the hearings of the Truth and Reconciliation Commission, have provided a window of opportunity to unveil the mechanisms which maintained that apartheid regime for nearly half a century. Understanding that complex practice of state deviance entails recognising the different levels of state power and malpractice in that country. This article flows directly from the Foucauldian notion of the decentralisation of power in modern society. Power in the authoritarian state is not just a function of a clearly-defined state apparatus. Rather that locus co-exists with various sub-foci at lower levels of state and civil society, in which local interactions and power relations, contribute to the totality of control. Apartheid survived for many years not because it signified an authoritarian centralised state but because it could rely on individuals and agencies at lower strata of power to contribute their own efforts to sustaining that abnormal structure. Deviance by state personnel at different levels – to which the Nelson's eye was turned – was critical to the maintenance of white hegemony. The article focuses directly on one such nexus – the extent to which different interests – financial, organisational, and a commitment to racial hegemony – cooperated in a seamless web to ensure that the white rule was paramount in micro-level decision-making structures. Micro-level influences on police training and of police promotions – deviant by any conventional yardstick-served both state and individual interests. This revised version was published online in July 2006 with corrections to the Cover Date.     

Mad cows and democratic governance: BSE and the coonstruction of a “free market” in the UK

The Conservative government elected in 1979 was ideologically committed to deregulation and removed many of the state's previously established regulatory procedures. The policy permitted important changes in the structure of the meat rendering industry and in the processes employed by it. These changes were directly responsible for the spread of BSE through the British cattle herd and lead to a rising incidence of the human form of BSE – variant-CJD. The British Government – and particularly MAFF – sought to defend the meat industry by denying – until March 1996 – both the seriousness of the BSE epidemic in cattle and the possibility of a species jump from cattle to the human population. Ministers and officials insisted that beef was safe to eat and underpinned this stance by providing misleading or inaccurate information to Parliament and the public. This deception was made possible by officials having the power to manipulate the scientific evidence and to prevent research and the publication of research findings. The British Government also succeeded in obstructing European Union directives from 1990 and in intimidating the Commission. MAFF equated the “public interest” with that of the meat rendering industry and consistently put the financial interests of the dominant firms above public health. The conspiracy of silence and the deceits employed to hide the increased risks resulting from infectious agents carried by food and the public health implications of deregulation reflect not only the broad economic and industrial policy of the then government and its agencies, but also the state's lack of independence from industrial and financial interests. This revised version was published online in August 2006 with corrections to the Cover Date.     

Unearthing the realities of rape: Utilising Victorian newspaper reportage to fill in the contextual gaps

This article examines the realities of rape and sexual offences and their treatment through the legal process by use of media reportage, Victorian and modern; using this to contextualise and so to challenge the official record. The starting point is an identification of what constitutes ‹best’ evidence for an exploration of rape and sexual offences – evidence that permits better insights into the impact of such offences on the individuals involved, as well as into the factors governing the ability of the criminal justice process to promote the conviction rate in rape cases. By using a comparative historical perspective, and using media presentations (especially newspaper reportage) this article shows the enduring nature of stereotypes which govern the decisions reached by legal personnel and by jurors – stereotypes which have, since the Victorian period, remained profoundly gendered in ways that are unhelpful to the ‹victims’.     

Part-time employment: a comparative analysis of Spain and the Netherlands

Most industrialized countries have seen part-time employment as a percentage of total employment increasing in the last decade. This paper presents the results of a comparative study of part-time employment in Spain and the Netherlands. The project comprises a legal comparative study of the effectiveness of the normative solutions provided by the Dutch and Spanish legal orders regarding the protection of part-time workers and the promotion of part-time employment, with special attention paid to the gender dimension of part-time work in both countries; and an analysis, based on data extracted from the European Community Household Panel (1995–2001), of the determinants of part-time employment in both countries and an examination of the extent to which part-time jobs are used as stepping-stones to full-time positions. We have found significant country differences regarding females’ decisions to take part-time jobs. We also have found that, in general, Dutch females are not less likely than their male counterparts to increase the number of hours they work. However, this applies only to those females who are part of a couple or have children younger than 12 years. In Spain, females are 2.6 times less likely than their male counterparts to switch from a part-time to a full-time job.     

Attrition and Conviction Rates of Sexual Offences in Europe: Definitions and Criminal Justice Responses

The “loss” of cases within the criminal justice chain, especially from police to conviction level is known as attrition – a phenomenon that can be observed in every criminal justice system and for every offence type. But is this attrition particularly strong for sexual offences as theories based on the so-called “rape myths” suppose? This question is dealt with by this paper; it studies the different conviction ratios of sexual offences in Europe and tries to evaluate the resulting findings. The data presented are based upon the work done by the expert group for the European Sourcebook (ESB) of Crime and Criminal Justice Statistics and a special EU-funded project on "Defining and Registering Criminal Offences and Measures, Standards for a European Comparison". In order to gain a basis for comparison, the differences between the national legal concepts and definitions are discussed. Then attrition and conviction rates (understood as the ratio of suspected to convicted persons) are examined, firstly for different crime types in order to show the relative importance of attrition in the field of sexual offences, secondly with a special focus on rape, sexual assault and sexual abuse of minors in some European countries. Beyond these mere statistical data the question whether there are particular reasons for the selection process in cases of sexual offences is raised.     

A research topic in education law and policy: The development of regionalism and federalism in Europe and their impact on educational policy and administration

There has been an “upgrading” of the regional level in the European policy process which also has implications for educational policy and administration. At the same time federalism has become a model not only for nation states but also for the construction of Europe. While regionalism and federalism has attracted more and more scholarly attention there has been a neglect of the implications for the educational field. The article starts by looking for models of regionalisation and federalisation as a legal and political technique of conciliating between the different levels in education. This revised version was published online in August 2006 with corrections to the Cover Date.     

Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology” does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is ever justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology.     

Enforcing the Law and Being a State

Many anarchists believe that a stateless society could and should feature laws. It might appear that, in so believing, they are caught in a contradiction. The anarchist objects to the state because its authority does not rest on actual consent, and using force to secure compliance with law in a stateless society seems objectionable for the same reason. Some people in a stateless society will have consented to some laws or law-generating mechanisms and some to others – while some will have consented to none. Someone’s obedience to a legal requirement could be justly enforceable absent the state, nonetheless, given either her actual consent to the requirement or to a mechanism responsible for generating it or the coextensiveness of the legal requirement with a moral requirement. And it could thus be just on the anarchist’s own terms to enforce a narrow range of positive legal requirements even against outlaws who had declined to consent to them.     

The London Agreement and the cost of patenting in Europe

This paper analyses the consequences for the European patent system of the recently ratified London Agreement, which aims to reduce the translation requirements for patent validation procedures in 15 out of 34 national patent offices. The simulations suggest that the cost of patenting has been reduced by 20–30% since the enforcement of the LA. With an average translation cost saving of €3,600 per patent, the total savings for the business sector amount to about €220 millions. The fee elasticity of patents being about −0.4, one may expect an increase in patent filings of 8–12%. Despite the translation cost savings, the relative cost of a European patent validated in six (thirteen) countries is still at least five (seven) times higher than in the United States.     

Corporate governance and financial development: a study of the French case

This paper belongs to the growing body of the “Law and finance” literature based on time-series study. It carries out an empirical investigation of the role of corporate governance in financial development. We focus on French corporate governance reforms in order to examine whether these reforms are consistent with the reorganization of the French financial system, which took place during the period 1977–2004. This research aims at evaluating one proposition of the legal origin claims based on the idea that there is a strong and stable relationship between legal origin, investor protection and financial system. A key question the study addresses is how corporate governance rules and the French financial development have changed over time. Our study suggests that indicators related to investors’ rights (shareholders, employees, and bondholders) have been increasing over time, despite the specific legal origin of the French system. On the contrary the creditors’ rights have followed a less clear trend. Our econometric investigation is fairly new as the Law and finance literature has not until now provided corporate governance indicators suitable for French legislation. From that perspective, our work undergoes a multiple criteria analysis of corporate governance reforms. Following this approach, we suggest that the causality links between changes in the French legal environment and financial growth in France are more bidirectional than unidirectional.     

Finding a Proper Role for Command Responsibility

This article examines the role that command responsibility currentlyplays in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) and the International CriminalTribunal for Rwanda (ICTR). The ad hoc tribunals rely in principleon a broad concept of command responsibility – which canbe applied to all superiors, including political and civilianones. However, in practice, accused persons have only rarelybeen successfully charged under this form of liability. Indeed,recent case law has gradually adopted a rigorous approach withrespect to the legal requirements of command responsibility.This has made it more difficult to establish criminal liabilityof superiors who have not directly participated in the commissionof international offences. The ad hoc tribunals have expressedan explicit preference for forms of ‘direct’ liabilitywhere the accused can be convicted both under ‘direct’and command responsibility. While the ICTY and ICTR have progressivelyinterpreted other international legal concepts to deal effectivelywith collective crimes committed by leaders of organized groups,they seem to have confined command responsibility to internationalcrimes perpetrated in typical military-like contexts.     

Authorizing state crime in Mexico: the importance of a destructive social milieu

This essay seeks to specify some of the social–psychological determinants that led to the mobilization of deadly state crime in the Latin American authoritarian state context. The Mexican case provides an interesting case in which to specify some of these determinants because hundreds of leftist political party militants, often engaged in legal activities, have been gunned down by state agents (the police, the military, local politicians associated with the dominant party-state) or indirectly by hired guns on behalf of state leaders Schatz. S. (Research in Social Movements, Conflicts and Change, 23:255–295, 2001). I argue, in the Mexican case, the leadership authorization of destructive behavior was the critical activating historical condition activating deadly state crime because it created a permissive social milieu that allows for the utilization of more extreme forms of violence including the use of political assassination as a mode of social control. This permissive social milieu was, of course, aided by a passive legal system that generated the almost complete lack of penalties for state-sanctioned brutality. While none of these determinants alone may be sufficient to produce a wave of political–electoral homicides, when they all combine, it makes such destructive behavior very likely to occur.     

Intelligent Agents and the Information Requirements of the Directives on Distance Selling and E-commerce

A significant amount of research in artificial intelligence is dedicated to intelligent agents, software that can perform tasks autonomously. Due to this autonomous character, agents are interesting from a legal perspective: lawyers struggle with the question whether agents are just instruments used by humans or legal entities that can perform legal acts. An interesting area for the practical application of agents is Internet commerce. Agents can find for their users profitable goods and services, and place orders online. The sellers of online goods and services have to meet information requirements that are laid down in the European Union Directives 97/7 and 2000/31. This paper addresses whether online sellers should provide (all) required information to agents directly, and as far as this is the case, in what format the required information regarding prices, delivery costs, etc. should be provided to agents.