Walking the groundless threats minefield

Legal context. It is one of the peculiarities of UK law thatthreatening litigation of IP rights can, in some circumstances,give rise to an action for "groundless threats". This has thepotential to cause great disruption to the right-holder's case.There is even the potential for professional advisors to endup in the dock where they made the threat on their client'sbehalf, raising the possibility of a conflict of interest preventingthe advisers from continuing to act. Key points. To minimise the risk of these scenarios, intellectualproperty law advisors, be they patent or trade mark attorneysor solicitors, should be aware of the provisions that governgroundless threats actions for the various IP rights, particularlyin light of the recent changes brought in by the Patents Act2004 and the further changes expected to the groundless threatsprovisions relating to designs. These alterations increasinglycomplicate what has always been a nebulous area of the law.In addition, there is considerable tension between the "talkfirst, sue later" philosophy underlying the Civil ProcedureRules and the "sue first, talk later" approach traditionallyused to circumvent threats actions. Reckitt recently confirmedthat the groundless threats provisions, while running counterto the purpose of the CPR, cannot be ignored by the Courts.This article provides an overview of the current state of thegroundless threats provisions that apply to the various IP rights,and considers how IP owners and their advisors can best navigatethe groundless threats minefield. Practical significance. Groundless threats form a complex andchanging area of IP law in the UK, which advisers need to takeinto account in virtually every dispute. Amendments made toSection 70 of the Patents Act 1977 have not provided a threatspanacea to patent holders and it remains to be seen how thesection will be interpreted by the Courts. What is clear isthat the threats provisions contained in the IP legislationwill remain in force in one form or another for the foreseeablefuture and that they remain a trap for the unwary.     

Blue Cross/Blue Shield-sponsored prepaid individual practice

The HMO is no longer a fledgling idea in the Blue Cross/Blue Shield System. There are 45 Blue Cross/Blue Shield Plans throughout the country which sponsor a total of 54 HMO programs with about 1,040,000 members. Among those 54 programs are staff models, group models, Individual Practice Associations (IPAs), and other structures. This analysis is confined to the Minnesota affiliate corporation, "HMO Minnesota."     

Sensitivity of the Luminol Test with Blue Denim

Abstract: An article appearing in this journal in 2000 suggested that the sensitivity of the luminol test performed on denim fabric is usually no greater than at a 1:100 dilution of blood. This study shows that the luminol test may be unambiguously interpreted at substantially greater dilutions of blood. In this study, four different types of denim were tested by spraying a swatch of fabric with a typical formulation of the luminol reagent. Testing was conducted of dilutions of blood up to 1:1000, all of which showed distinct chemiluminescence. Diluted blood was applied to denim material in the form of a random number. A successful test was obtained only when a “blind” observer, i.e., an observer who was uninformed of the number, correctly reported the number.     

New York's Blue Cross and Blue Shield, 1934-1990: the complicated politics of nonprofit regulation.

The story of New York Blue Cross is one of complex interaction with state and federal regulators and also with hospitals, the medical profession, commercial insurers, and the public, who make up the regulatory environment. Negotiation, cooperation, and adaptation among parties whose goals and assumptions were partly parallel characterize the relationships. As we can see from New York Blue Cross's origins and its role in the development and administration of certificate-of-need legislation, Medicare, insurance practice and regulation, and hospital rate setting, this story does not represent the capture of government by a special interest, nor the gradual souring of a public interest organization, nor disinterested and distant government regulation.     

走出关系社会的法治

我国社会正面临着走出关系社会的过程。关系社会的社会控制方式是以各种非正式制度为主。在关系社会转变的过程中 ,一方面社会需要建立法治 ,另一方面关系社会遗留的非正式制度仍然对社会产生着影响 ,某些部分和法治原则根本冲突 ,这是推行法治遭受阻力的原因。在我国的法治建设中应对非正式制度加以区别对待 ,不能过于妥协。     

Walking the Tightrope: Harmful Acts and the Construction of Crime in the Norwegian Securities Markets

The main topic of this article is the regulation and the construction of insider trading as crime. Trading on inside information is not something new, but the dramatization and the attempt to regulate these acts by penal law are of quite recent date. This article tries to examine the simple question of why there has been such activity in this field the last 20–30 years and the goals of this regulation. The article points out the need for building trust in the financial markets, even if it might be illusory, especially when these markets have been opened for the money of ‘ordinary citizens’. It also stresses the importance of creating a ‘moral map’ in order to establish clearer lines between right and wrong in the rather blurry world of financial markets.     

A cure for the Blues: resolving nonprofit Blue Cross conversions

This Article analyzes the issues involved in converting nonprofit Blue Cross organizations to for-profit status. These issues have arisen in the context of litigation regarding the "reorganization" of Blue Cross and Blue Shield of Missouri ("BCBSMo"). BCBSMo had reorganized by creating and transferring a majority of its business to a new for-profit subsidiary. Missouri consumer groups and state regulators characterized the "reorganization" as a conversion requiring BCBSMo to transfer its assets to a foundation dedicated to charitable health purposes. BCBSMo, however, denied that it had any obligation to leave behind its assets in the nonprofit sector. The BCBSMo litigation raises issues common to most conversions of nonprofit healthcare organizations, particularly conversions of nonprofit Blue Cross plans. This Article provides a road map for state regulators and the public to follow in ensuring that the public interest is fully protected in such conversions.     

Rule‐Making by the European Financial Supervisory Authorities: Walking a Tight Rope

The new European Financial Supervisory Authorities have received much attention in the literature, particularly due to their exceptional emergency decision‐making powers. By contrast, this article explicitly chooses to focus on these agencies' less explored yet equally crucial role: their (quasi‐)rule‐making responsibilities. While being less striking at first sight than their emergency counterparts, these rule‐making powers are considerable, carry significant consequences, and raise some interesting dilemmas and concerns. This article complements the previous contribution by going at a lower level of specification and zooming in on a crucial case for studying rule‐making by agencies as the Authorities constitute a culmination of agency rule‐making powers, as well as agency powers, more broadly. The article will analyse the Authorities' main (quasi‐)rule‐making powers and the relevant procedures. It will specifically investigate their role with respect to the adoption of regulatory and implementing technical standards, as well as guidelines and recommendations. The article also identifies and highlights a set of problematic issues that arise, threatening to jeopardise the legitimacy and credibility of their rule‐making.     

行走在中国刑法学的前沿——关于《刑法学的现代展开》的对话性评论

一、缘起如果一位学者能始终不懈地上下求索,即使面对的是漫漫长路,也一定会得到符合其自我期待的过程与结果。倘若这个求索着的主体同时又兼具横溢之才华,那么其行动意义的客观化无疑更将惠及学界。中国人民大学出版社新近推出的《刑法学的现代展开》一书恰好出自这样的学者之手,而且是两位!这两位教授在学界人所共知,他们不仅一直执着于营造和坚守自己的学术家园与理想,而且一直潜心于拓展和深化中国刑法学研究的视野与向度。无论在规范刑法学的领域还是在理论刑法学的园地,他们所取得的成就已经足以令绝大多数以刑法为业的人仅能望其项背…     

论不可逾越的“柴尔线”

英美证据法学界通常认为,在处理推定与举证责任的关系上,必须遵循一条不可逾越的分界线,即推定仅仅转移提供证据责任,不能转移说服责任和整个案件的举证责任,即"柴尔线",历经100多年的发展历程,其科学性已得到实践确认。目前,我国《侵权行为法》和《最高人民法院关于民事诉讼证据的若干规定》中相关条款规定,法律推定和事实推定能够转移说服责任和举证责任,审判实践中亦依此作出不少错误判决。其理论上的深层原因是,我国主流证据法学理论并没有承认和引进举证责任分层理论,故一旦发生推定,则十分容易逾越"柴尔线",导致说服责任和举证责任的转移。因此,只有承认和引进举证责任分层理论,才可能从根本上消除上述错误。同时,要正确处理推定与举证责任之间的关系,当二者之间发生冲突时,要遵守举证责任优先的原则,因为举证责任是法定的。尤值得注意的是,在审判实践中,法官无权根据自由裁量权设置举证责任条款并在当事人之间进行分配。故此,目前有必要对《最高人民法院关于民事诉讼证据的若干规定》中所规定的事实推定作出严格的、科学的解释。     

Thinking About Prison Release and Budget Crisis in the Blue Grass State

As of 2003, nearly every state in the country is in budget crisis, looking to cut spending or raise taxes, or both. Kentucky is currently facing a severe budget crisis and is seeking ways to lower its prison costs. We interviewed prisoners, parolees, and correctional staff. Our focus is on reentry and structural problems contributing to parole failure. The discussion is organized around the following themes: the lack of meaningful prison programs, preparing for release from prison, problems finding employment, the parolee relationship with parole officers, the need for protection from minor parole violations, loss of credit for good time served on parole, and the lack of economic resources. Based on our findings, 10 recommendations are offered that, if implemented, would serve to lower the prison population, and save the taxpayers millions of dollars. While the research was conducted in one state the discussion may be generalized to apply to many states.