Theory of Custom,Dogmatics of Custom,Policy of Custom: On the Threefold Approach of Polish‐Russian Legal Realism

Proceeding from the insights of Petra?ycki, Polish‐Russian legal realists (PRRs) distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value‐free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value‐laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources (NSs) as binding, while legal policy evaluates the effects produced by given NSs based on causal laws and on the subject's goals (for Petra?ycki, these goals come down to that of fostering love, or benevolence). PRRs then conceptualize custom as a representation of people behaving in a certain way (R_c): We have a custom on the threefold condition that (a) R_c is believed true by a given X, (b) R_c causes the existence of a given normative psychical experience (NPE) in X, and (c) X expressly refers to—or would refer—to R_c in justifying an NPE. PRRs use the term customary law to refer to legal experiences (i.e., NPEs involving a sense of entitlement) caused and justified by an R_c. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, by contrast, what matters is (a) whether the dogmatician—qua subject—adopts custom as a binding NS, (b) whether it is true that people behave in a given way b_w, and (c) whether b_w resembles the behavior that is deontically qualified in the norm under dogmatic evaluation. Finally, from a legal‐political viewpoint, PRRs hold that customary law in modern societies, owing to its conservative nature, should be eradicated for the goal of removing inequalities and fostering benevolence.     

Beyond Endogeneity: How Firms and Regulators Co‐Construct the Meaning of Regulation

What role do regulators and firms play in the construction of open‐ended regulatory terms? The new institutional legal endogeneity model posits that organizations respond to legal uncertainty by adopting formal structures to symbolically signal their compliance. These structures, however, tend to embody businesses' managerial and commercial values, as opposed to regulatory goals. Law becomes endogenous insofar as legal actors then defer to businesses' institutionalized ideas about regulation and compliance. Professionals, such as lawyers and human‐resource managers, and their strategic deployment of framing, are portrayed as the engines of the above process of legal endogeneity. By comparison, administrative agencies' strategies in shaping the meaning that corporations attach to the law are practically ignored. Building on a detailed case study of British financial firms' responses to the Financial Services Authority's Treating Customers Fairly initiative, this article problematizes the supposition of regulatory deference to business constructions of law. Instead, it develops a more balanced model that recognizes business professionals' and regulators' co‐construction of regulation and compliance. The process of regulatory meaning co‐construction, as depicted by this model, involves alignment and disputes between regulators' and professionals' strategic framing of regulatory concerns with tangible consequences for the enactment of regulation.     

When Social Norms and Pressures Are Not Enough: Environmental Performance in the Trucking Industry

Why do some business firms and not others work hard to advance regulatory values such as environmental protection and comply with regulations? Previous research indicates that business firms are influenced in that regard by a number of variables—not merely the perceived likelihood of legal punishment but also the risk of negative reactions by societal actors (which we call “social license pressures”) and the intensity of managers' commitment to norms of law‐abidingness and environmentalism. This article reports on a study of control of diesel emissions in the trucking industry, a highly competitive market with many small firms, mobile pollution sources, expensive “best control technologies,” and weak regulatory demands. In contrast to findings in studies of large firms, we found that social license pressures on small trucking firms are minimal. Trucking companies' environmental performance—good and bad—flows from managers' economic choices, which are influenced by their particular market niche. In such highly competitive, small‐firm market contexts, these findings imply, significant improvement in environmental performance is not likely without strong direct regulatory pressures.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

The Forms and Limits of Choice Architecture as a Tool of Government

Although the use of design‐based control techniques, broadly understood as the purposeful shaping of the environment and the things and beings within it toward particular ends, have been used throughout human history, until the publication of Thaler and Sunstein's Nudge, they have remained relatively neglected as a focus of regulatory scholarship. Nudge can be understood as a design‐based regulatory technique because it provides the means by which a choice architect intentionally seeks to influence another's behavior through the conscious design of the choice environment. But there are other forms of choice architecture besides nudge. The gunman who offers his victim “your money or your life?” is as much a choice architect as the cafeteria manager who places the fruit at eye level while placing the chocolate cake further back to encourage patrons to make healthier dietary choices and the supermarket owner who slashes grocery prices on their use by date to stimulate sales. This article focuses on three forms of choice architecture—coercion, inducements, and nudge—employed by the state in order to influence the behavior of others. It seeks to evaluate whether each form of choice architecture coheres with the fundamental values and premises upon which liberal democratic states rest and can therefore be properly characterized as libertarian. Chief among these values is the importance of individual liberty and freedom and the concomitant special status accorded to individual choice in liberal democratic communities. In so doing, it highlights different ways in which these techniques may be regarded as an interference with individual freedom, and the conditions under which such interferences might be rendered acceptable or otherwise justified.     

“Great Men,” Law,and the Social Construction of Technology

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday , Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp , Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein , A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo‐American law .     

The meaning of “the public interest” in communications policy—part II: Its implementation in early broadcast law and regulation

For more than a half‐century, as the cornerstone of federal broadcasting and telecommunications policy, the public interest standard has always been subject to some debate. Questions have regularly been raised about its meaning and the extent of the authority it implies for regulation, particularly in the deregulatory environment of the 1980s and 1990s. Part I of this study demonstrated how a deep reading of the pre‐broadcasting state and federal regulatory history reveals that interpretations of the public interest standard that have emphasized broad, diverse, public service programming have entailed a misunderstanding of its real, underlying meaning. This part of the study shows how another definition—i.e., that the public would be best served by protecting economic viability and technological advancement for private industry broadcasters—developed as the predominant doctrine before adoption of the Radio Act of 1927 and Communications Act of 1934, and how that theme came to be the applied interpretation of the public interest during the first two decades of broadcast regulation.     

Three Principles of Transnational Corporate Bankruptcy Law: A Review

Abstract: After having discussed the weaknesses of the universalist and territorialist approaches to transnational corporate bankruptcy law, this article argues that a free‐choice régime could combine the advantage of ex post value maximisation of the firm's assets with a comparatively higher degree of ex ante predictability to investors. In addition, it could lead to a better alignment between corporate ownership structures and corporate bankruptcy régimes. Moreover, a free‐choice régime could potentially open the door for regulatory competition in corporate bankruptcy law. However, EC Regulation 1346/00 on insolvency proceedings implements a system of modified universalism, which allows for strategic ex post forum shopping by debtors while keeping the national legislatures’ monopoly in the field of corporate bankruptcy in place. It is suggested that even though it cannot be predicted that a free‐choice régime will pressure state lawmakers to improve their corporate bankruptcy laws, a system of free choice could redirect the law‐making agenda in the EU by focusing the coordination efforts of lawmakers on those issues—such as security interests in property and statutory priority rights—which could negatively affect the proper functioning of the Internal Market, while enabling Member States to customise corporate bankruptcy laws to local preferences and needs.     

Estimating Biological Characteristics With Virtual Laser Data

Laser scanning technology is increasingly being used in forensic anthropological research to obtain virtual data for archival purposes and post hoc measurement collection. This research compared the measurement accuracy of two laser scanners—the FARO Focus^3D 330X and the FARO Freestyle^3D—against traditionally obtained (i.e., by hand) control data (N = 454). Skeletal data were collected to address a novel question: the ability of laser scanning technology to produce measurements useful for biological characteristic estimation, such as sex and stature. Results indicate that both devices produced measurements very similar to control (c. 3‐mm average absolute error), but also illuminate a tendency to under‐measure. Despite these findings, the virtual data produced sex and stature estimates that varied little from control‐produced estimates, signifying the usefulness of virtual data for preliminary biological identification when the skeletal elements are no longer available for physical analysis.     

Shaping the path to inventive activity: the role of past experience in R&D alliances

In this paper, we investigate a recurrent organizational event—R&D strategic alliances—and analyze its multidimensional effect on inventive activity; in particular, we examine the quality of the inventive process outcome. In so doing, we address the still-unresolved issue of the impact of past experience in explaining performance differences between firms in the realm of alliance inventiveness. Our results offer new insights concerning the crucial drivers of invention quality and technological breakthroughs. As expected, results suggest that—in the area of R&D—alliances formed by experienced partners are more likely to produce inventions that effectively synthesize technological knowledge from more diverse domains. In fact, experienced alliance partners are more likely to generate useful inventions with a greater innovative impact on others’ subsequent inventions—knowledge that can be built upon. Surprisingly, results are indeterminate with regard to whether innovation via R&D alliance increases invention’s degree of applicability across diverse scientific and technological fields that might cite its patent.     

Valleys of Death and Darwinian Seas: Financing the Invention to Innovation Transition in the United States

The basic science and technology research enterprise of the United States—sources of funding, performing institutions, researcher incentives and motivations—is reasonably well understood by academics and policy makers alike. Similarly corporate motivations, governance, finance, strategy, and competitive advantage have been much studied and are relatively well understood. But the process by which a technical idea of possible commercial value is converted into one or more commercially successful products—the transition from invention to innovation—is highly complex, poorly documented, and little studied. In this paper we discuss the process by which basic research is converted into successful commercial innovations. Following Arrow (1962) and Zeckhauser (1996), we explore the hypothesis that asymmetries of informaion and motivation, as well as institutional “gaps,” may systematically deter private investment into early stage technology development. We describe the role of governments—federal and state (or provincial)—in promoting the commercial transition from an invention to an innovation. We conclude by suggesting some lessons that may be learned from the experience of the Advanced Technology Program (ATP) of the United States Department of Commerce, among the few Federal programs specifically intended to meet this need.     

Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers

Street‐level bureaucratic theory is now at a fairly mature stage. The focus on street‐level bureaucrats as ultimate policymakers is now as familiar as it is important. Likewise, the parallel sociolegal study of the implementation of public law in public organizations has demonstrated the inevitable gap between law‐in‐the‐books and law‐in‐action. Yet, the success of these advances comes at the potential cost of us losing sight of the importance of law itself. This article analyzes some empirical data on the decision making about one legal concept—vulnerability in UK homelessness law. Our analysis offers two main contributions. First, we argue that, when it comes to the implementation of law, the legal abilities and propensities of the bureaucrats must be taken into account. Bureaucrats' abilities to understand legal materials make a difference to the likelihood of legal compliance. Second, we must also pay attention to the character of the legal provisions. Where a provision is simple, it is more likely to facilitate legal knowledge and demands nothing of bureaucrats in terms of legal competence. Where the provision is also inoffensive and liveable, it is less likely to act as an impediment to legal conscientiousness.     

A Rigorous Quasi‐Experimental Design to Evaluate the Causal Effect of a Mandatory Divorce Education Program

All couples with minor children who filed for divorce within a specific 6‐week period (N = 191 couples) in one jurisdiction were ordered to attend a divorce education program. The control group included about 20 couples randomly selected from each of six 6‐week intervals before and six 6‐week intervals after the treatment interval (N = 243 couples). Archival records were searched for variables such as legal and residential custody award, visitation percentage, and relitigation. The impact of the program was assessed by evaluating, for each variable, whether the data for program interval departed from the straight (regression) line drawn through all the control group intervals. Only the visitation time award significantly differed: 27.75% for treatment couples and 22.46% for control couples. Analyses show that the father's attendance at the program primarily accounts for the difference.

Key Points for the Family Court Community
• There are considerable methodological weaknesses in most of the existing evaluations of divorcing parent education programs.
• Stronger, more scientifically rigorous—and thus persuasive—designs are possible in court settings, such as the regression discontinuity quasi‐experimental design we feature here.
• Archival records, such as various court filings, are a rich and relatively untapped source of data.
• Being mandated to attend a single 2‐hour divorcing parent education class caused an increase in the visitation time award in divorce decrees.
• There is a disconnect between being mandated by a judge to attend a program and actual attendance.

     

Lessons Learned from Developing a Trauma Consultation Protocol for Juvenile and Family Courts

Juvenile and family courts hold a unique position among the many stakeholders that comprise a healing community for persons experiencing adversity or trauma. Specifically, judges and other court leaders can promote the implementation of screening for trauma, the alignment of appropriate and effective treatment for trauma when indicated, and the accountability of systems for coordination and support of such services. To that end, the National Council of Juvenile and Family Court Judges undertook a field‐based project — consisting of multiple semi‐structured court surveys — to elucidate the key features of a trauma‐informed court and how to assist courts in becoming more trauma‐responsive for both consumers and staff. With the assistance of courts in 11 pilot sites across the nation, the project has led to the development of a protocol called trauma consultation or trauma audit, which is outlined here. Our work in developing the consultation protocol highlighted the need to better understand (1) the prevalence and impact of secondary traumatic stress in court staff, (2) the potential for environment to contribute to traumatic stress reactions, and (3) the importance of consistent trauma screenings and subsequent use of findings. Practical suggestions for courts to become more trauma‐informed are also provided.     

Research spending under regulatory uncertainty

Using a simple model this paper examines firm behavior under three types of uncertainties dealing with innovation occurrence, innovation scale, and a possible threat of regulatory action. Firms compete in the existing product market and engage in R&D in Stage I. Innovation takes place in the second stage, the successful firm achieves a monopoly and becomes aware of the scale of innovation. Regulators examine the new product and decide on possible action. Results show that increases in the probability of regulation reduce research spending as do higher regulatory taxes. These results are reversed when the regulator grants a subsidy, instead. An increase in the probability of drastic innovation increases research spending under certain conditions. The effect of market entry is unclear. Our results generally carry through when the model is extended to include only an innovation race or the nondrastic innovation is alternately regulated. Policy implications are discussed.

The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

CAN SELF‐CONTROL CHANGE SUBSTANTIALLY OVER TIME? RETHINKING THE RELATIONSHIP BETWEEN SELF‐ AND SOCIAL CONTROL*

The primary goals of this study were to test the long‐term stability thesis of Gottfredson and Hirschi's (1990) general theory of crime and to examine the relationship between self‐control and social control over time. The data come from a field experiment where the “treatment” consisted of an intentional effort to improve the childrearing behaviors of a sample of caregivers whose children were at high risk of criminal behavior. Caregivers in the control condition were given no such training. The intervention occurred when all subjects were in the first grade (mean age: 6.2 years old), and we have measurements on self‐control and the social control/bond for each subject from grades 6 to 11 (mean ages: 12 to 17 years old). Both a hierarchical linear model and a second‐order latent growth model identified meaningful differences in the growth pattern of self‐control among individuals in the pooled sample and a difference in the growth parameters for self‐control and the social control/bond over time between the treatment and control groups. Both findings are inconsistent with Gottfredson and Hirschi's stability of self‐control hypothesis. The same patterns persisted when different analytic techniques and model specifications were applied, which suggests that the results are not an artifact of measurement error, model specification, or statistical methods. Structural equation modeling using the panel design of the data was better able to disentangle the long‐term relationship between self‐ and social control—a relationship that was found to be more dynamic than previously hypothesized.     

Who Develops a University Invention? The Impact of Tacit Knowledge and Licensing Policies

In this paper, I propose a theoretical model to illustrate how the inventor know-how affects whether the inventor starts a firm to develop her idea or licenses an invention to an established firm for development. Inventor start-ups are characterized as development organizations that serve a temporary role in the invention–innovation process, developing an invention until they can sell the developed invention to an established firm that owns requisite complementary assets for commercialization. This model is then used to analyze the role and impact of a university technology transfer office (TTO) on this process to understand how TTO’s may both positively and negatively impact the transaction. The model posits a general theory of inventor–entrepreneur behavior in university and corporate research labs based on two factors: the importance of know-how and the distribution of inventors’ personal costs to transfer that know-how.     

A PCR marker Linked to a THCA synthase Polymorphism is a Reliable Tool to Discriminate Potentially THC‐Rich Plants of Cannabis sativa L.

Neither absolute THC content nor morphology allows the unequivocal discrimination of fiber cultivars and drug strains of Cannabis sativa L. unequivocally. However, the CBD/THC ratio remains constant throughout the plant's life cycle, is independent of environmental factors, and considered to be controlled by a single locus (B) with two codominant alleles (B_T and B_D). The homozygous B_T/B_T genotype underlies the THC‐predominant phenotype, B_D/B_D is CBD predominant, and an intermediate phenotype is induced by the heterozygous state (B_T/B_D). Using PCR‐based markers in two segregating populations, we proved that the THCA synthase gene represents the postulated B locus and that specific sequence polymorphisms are absolutely linked either to the THC‐predominant or the THC‐intermediate chemotype. The absolute linkage provides an excellent reliability of the marker signal in forensic casework. For validation, the species‐specific marker system was applied to a large number of casework samples and fiber hemp cultivars.