Demythelogizing Personal Loyalty to Superiors

This article examines the practice of personal loyalty to superiors, in general, and in criminal justice agencies, in particular. While practitioners are taught that their primarily loyalty is to the United States Constitution, State laws, departmental rules and regulations, they are organizationally taught that personal loyalty to superiors is paramount if they wanted their career to continue and prosper. As a result many practitioners are rightfully confused (even exhibiting paranoia) over who or what to be primarily loyal to, and at what price or risk. This unwarranted fear has been behind numerous acts of malfeasance and misfeasance; it can lower the workers’ morale, confuses the practitioners, and destabilizes the agency’s equilibrium. This article examines three types of workplace loyalties, and suggests, as an attempt toward reform, the use of a more sensible duty-based paradigm. Such a paradigm can be based on four practical propositions: (1) seriously examining why personal loyalty to superiors is deemed essential, if at all, especially since it is never mentioned in the agency’s rules and regulations; (2) taking the fear out of the language of “loyalty-disloyalty” by perhaps replacing the term with more benign and rather measurable terms such as “performance and collaboration;” (3) strengthening dutiful supervision; and (4) maximizing professional accountability.     

In Search of the Nature and Function of Fiduciary Loyalty: Some Observations on Conaglen's Analysis

Fiduciary law is in a state of flux. We know that the core obligationof a fiduciary is an obligation of loyalty, but we are lesssure what ‘fiduciary loyalty’ encompasses. We knowa fiduciary has duties not to profit or put himself in positionsof conflict, but how these duties interact with other non-fiduciaryduties (whether tortious or contractual or otherwise) is moredifficult to discern. Against this background, Conaglen hasmade a recent contribution to our understanding of the fiduciarydoctrine. He suggests that fiduciary loyalty offers a subsidiaryand prophylactic form of protection for non-fiduciary duties.This article considers his analysis, and argues that it is notsupported by case law and creates a number of inexplicable implicationsfor the fiduciary doctrine. In view of these difficulties, Conaglen'sanalysis should be rejected.     

CFI decision leaves Bitte taste for Bitburger

Bitburger's over-reliance on its brand strength and lack ofsubstantive evidence of similarities between its own marks andthe contested marks meant that it failed again to prevent Anheuser-Buschselling its beer under the name ‘Bud’ in Germany.     

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.     

EU Directive on unfair commercial practices--a UK perspective

Legal context. Lack of any catch-all law of unfair competitionin the UK – difficulty for brand owners in protectingtheir IP rights with regard to look-alike products. UK remediessuch as passing-off and trade mark infringement have provedtoo narrow. EU Directive will add to the remedies availableand may assist brand owners in their battle against look-a-likeproducts. Key points. Legal position on look-a-likes in the UK –objectives of the new Directive. Analysis of the two main waysto establish a commercial practice is unfair in the look-a-likecontext. The likely effect of the Directive in the UK on copycatsyndrome and looking to the future. Practical significance. Brand owners may use the new law alongwith the old to stamp out look-a-like activities. Practicalapplication of the test under the Directive. Remedies includecourt orders to stop and prevent unfair commercial practiceto optional possibility of court-imposed requirement to publisha corrective statement or fine – if latter is introducedinto the UK would be an additional deterrent factor of practicalvalue.     

Personal loyalty to superiors in criminal justice agencies

Public workers in general, and criminal justice workers in particular, have a problem understanding the concept of loyalty at the workplace—to what, to whom, and at what price. Despite the fact that rules and regulations almost never mention loyalty to superiors, this unexamined practice has been sacrosanct regardless of how unworthy, inefficient, or immoral these superiors may be. Furthermore, the obligation of loyalty to persons rather than principles can encourage corruption, promote mediocrity, and demoralize the workers. Ironically, if both workers and superiors were loyal to departmental values, they would, by natural association, be loyal to one another. In criminal justice agencies the selection of loyalty objects can be as intriguing as the fear of being accused of disloyalty is real. This article discusses the arguments for and against personal loyalty to superiors, the risks to public service inherent in such relationships, and the organizational dangers involved in such pacts. As an alternative to personal loyalty to superiors, this article proposes a professional model based on organizational identification and individual accountability in which dutiful supervision is strengthened while superiors are appreciated as philosopher kings, role models, and mentors.     

公务员忠诚义务的若干问题研究——对《公务员法》第12条的解读

《中华人民共和国公务员法》第12条规定了公务员的忠诚义务。公务员忠诚义务兼具伦理道德和法律的双重属性,是一种制度性的忠诚,约束公务员的一切与职务相关的行为。公务员违反忠诚于宪法和法律的义务,应予以追究道义、行政和法律上的责任。     

Language, Culture, and Behavior in Prison: The Israeli Case

The current study describes the everyday life of Israeli prisoners and analyzes the actions they perform and the language they use as a reflection of their constraints, distresses, worldviews, beliefs, and attitudes. Data were subjected to a content analysis, and the salience of the values, norms and argot terms were assessed using two measures, attention and intensity. The inmates’ values and norms and the argot expressions were divided into categories with reference to different aspects of prison experience: prisoners’ adherence to the code, inmates’ interpersonal loyalty, sexual behavior in prison, drugs, violence and miscellaneous.

<Emphasis Type="Italic">Cultural Criminology: An Invitation</Emphasis>… to What?

Since the mid 1990s, a strand of criminology emerged that is concerned with the co-constitution of crime and culture under the general rubric of ‘cultural criminology’. In the titles Cultural Criminology Unleashed and Cultural Criminology: An Invitation, criminologists spearheading this brand of criminology make claims for its originality and its status as a subversive alternative to conventional criminological approaches to studies of crime and deviance. The basis for the ‘new’ cultural criminology is its ostensible ability to account for the culture and subcultures of crime, the criminalization of cultural and subcultural activities, and the politics of criminalization. This paper offers a comparison of cultural criminology to 1960s and 1970s labeling theory to assess whether or not cultural criminology has developed a grammar of critique capable of resolving fundamental contradictions that haunt critical criminology and contesting contemporary administrative criminology. Points of comparison are made through ontological categories of power and criminal identity and a consideration of the epistemological categories of the respective bodies of literature.     

Regulating the Trade in Recreational Drugs

This paper examines the market for illegal recreational drugs. Under the present regime of illegality, the law acts as a barrier to entry of other firms. It also restricts the information available to consumers. Both of these effects increase the market power of traders. Other negative consequences of illegality include the use of violence to enforce contracts, poor quality control and the use of illegal activities to finance the purchase of drugs.However, legalizing the trade is likely to lead to greater drug use in the long run. This follows from the addictive nature of recreational drugs. Initial use of the drugs will drastically reduce consumers' price elasticity at any given level of consumption. Firms can increase the extent of the market by using introduction strategies, reducing consumers' price elasticities. Since newly introduced consumers have no brand loyalty, introduction strategies are public goods for firms. Free rider problems will produce oligopoly and collusion. Legalization will lead oligopolistic firms to expand the market.To avoid these problems it is suggested that the recreational drugs industry should be nationalised, not legalised.     

董事忠实义务及其扩张

董事忠实义务在本质上是董事信义义务,与勤勉义务并列,成为约束董事行为的法定机制。董事忠实和勤勉义务均建立在公司与董事之间的信义关系基础上,均以维护公司整体利益为宗旨,但规制重点不同。忠实义务主要规范董事与公司之间利益冲突关系,勤勉义务旨在推动董事发挥聪明才智,两者共同成为评价董事履职的主要标准。忠实义务与民法中禁止自己代理和双方代理的规则之间关系密切,但在制度功能和义务要素上仍有重大差别,不能彼此替代或混为一谈。随着现代社会中公司交易复杂化以及公司集团现象普遍化,规制公司与董事利益冲突的公司法规则正在从“绝对禁止”向“禁止缓和”发展,忠实义务主体则已适度扩张至控股或主要股东,成为补充调整股东与公司关系的特殊机制。     

Kicking butt? Tobacco Advertising and Promotion (Brandsharing) Regulations 2004

Legal context. This article looks at the provisions of The TobaccoAdvertising and Promotion (Brandsharing) Regulations 2004 implementingEU Directive 2003/33 to approximate the laws of EU Member Statesrelating to indirect advertising and sponsorship of tobaccoproducts through brandsharing. Key points. The Directive is the latest in a series of measuresto control direct and indirect tobacco advertising. Its provisionsand those of the implementing Regulations are widely drawn toprevent use of tobacco trade marks and other features indicatingthe origin of goods or services for non-tobacco products andvice versa if the effect of such use results in brandsharing.Purpose or intended effect is irrelevant—there is no requirementfor ‘mens rea’. There are defences however but absentthese, liability is assessed on the criminal rather than thecivil standard. The Directive also impacts on the procedureof the Patent Office and its assessment of whether trade markscan be accepted for registration. Practical significance. There are practical consequences tooas regards brand clearance and the extent to which identicaland similar marks for tobacco/non-tobacco goods need to be includedin clearance searches.     

论完善我国公司立法中的董事忠实义务制度

本文阐述了董事忠实义务的根据、董事的法律地位、忠实义务的体现 ,董事忠实义务与注意义务的联系与区别 ,针对公司制度存在的问题 ,在评价国外相关立法的基础上 ,提出了完善我国立法中董事忠实义务规定的建议。     

Are science parks and incubators good “brand names” for spin-offs? The case study of Turin

In recent years there has been an increasing focus on universities’entrepreneurial orientation and their ability to exploit and transfer scientific knowledge to the commercial sector. Spin-off firms are recognised as an important opportunity for universities. This paper aims to examine the university spin-off firm context, with particular attention to the relationship with science parks-incubators and their importance as brand names. Evidence is taken from Turin case-study. Turin has a consolidated university framework: the University and the Polytechnic are examples of success all around Europe. A particular characteristic of Turin is given by the presence of two science and technology parks and two incubators.     

Post-sale confusion

Legal context: Recent case law has established that post-sale confusion isrelevant to determining whether registered trade mark infringementhas occurred under UK law. This raises questions as to whatthat relevance is in practice and as to whether the common lawof passing off should develop accordingly so as to take post-saleconfusion into account. Key points: In this article, the authors review the case law on the relevanceof post-sale confusion to actions for trade mark infringementand passing off. They conclude that U K law does regard post-saleconfusion as relevant to trade mark infringement, provided thatthere is also sufficient similarity on a mark-for-sign basisat the point of sale. They argue that the tort of passing offshould develop in the same way. Practical significance: Brands can be harmed even where there is no confusion at thepoint of sale. The law's development to recognize this providesimportant weapons for brand owners, particularly in the contextof ‘look-alike’ products.     

Criminal justice and ethical ideology: an exploration of a loyalty-truthfulness dilemma

The notion of loyalty is well established in the criminological literature pertaining to ethics, ethical decision making, and ethical and ideological orientations. The present research addresses the topic of ethics and loyalty in an attempt to address three research questions germane to these areas within criminal justice and criminology. Using two samples equivalent in characteristics other than academic major, this research examines: (1) what impact gender, college major, and the ethical perspective of the observer and the nature of the actor’s action have upon the observer’s attitude toward the action (specific act of deception/truth); (2) what impact gender, college major, and the ethical perspective of the observer and the nature of the actor’s action have upon the observer’s perception of the social attractiveness of the deceiver; and (3) what impact gender, college major, the ethical perspective of the observer, and the nature of the actor’s action have upon the observer’s perception of the task attractiveness of the deceiver. Using a vignette design in this exploratory research, attempts are made to shed light on the impact of gender, major (criminal justice v. others), and ethical orientation on perceptions of an actor confronted with an ethical dilemma of loyalty versus disloyalty involving deception.     

Incumbency Effects under Proportional Representation: Leaders and Backbenchers in the Postwar Italian Chamber of Deputies

We study incumbency effects for individual legislators from two political parties (Christian Democracy and the Italian Socialist Party) in Italy's lower house of representatives over 10 legislatures (1948–92) elected using open‐list proportional representation. Our analysis finds no reelection advantage for the average incumbent legislator. Only a tiny elite in each party successfully creates an incumbency advantage. We find incumbents advantaged for reselection by their political party. We interpret reselection advantage as a party loyalty premium. Our study depicts a political environment monopolized by party leaders who reward party loyalty but hamper legislators in appealing directly to voters.     

论“忠”之法律义务及其限度

＂忠＂在初始意义上作为道德要求而存在,鉴于其对共同体的存立、公共职责的履行、契约法理论的补充及情感关系的维系具有重要意义,现代立法将＂忠＂写入法律文本,使其由道德要求转化为法律义务。作为法律义务的＂忠＂,约束着＂特殊信任关系＂中的法律主体。现代立法并非鼓励对个人的忠诚,也不强求对某特定意识形态或政策目标的服从。在公法上,其强调的是对通过正当程序成为共同体价值目标的普遍认同与一体遵行;在私法上,意在预防受托人滥用委托权限。＂忠＂之立法规范作用于行为,是可描述及可预测的行为标准。对＂忠＂之规范的违反,会引发相应的法律责任。     

A Case Study of Semiotic Distinctiveness in Brand Names

Brand names constitute a form of value for commercial products, because they suppose a savings of search costs for the consumer. The law, as a consequence, has the obligation to protect brand names. But the number of attractive brand names is not infinite and sometimes companies seek brand names which are reminiscent of others. In this article a conflict between two companies for the distinctiveness of two brand names is addressed: one Spanish company used the English common noun doughnut for a product similar to the American pastry, while the other company had already registered donut as a brand name, in addition to its variants. This second company sued the first on the grounds that the names were not distinctive. Here we offer the arguments presented to the judge in defense of the distinctiveness of doughnut and the judgment.     

透视美国公司法上的董事忠实义务——兼评我国《公司法》对董事忠实义务之规定

集中管理模式之下的公司董事具有相当大的权力,股东与董事之间难免会产生代理成本,为此法律规定了董事对公司和股东负有信托义务。信托义务主要包括注意义务和忠实义务。我国现行《公司法》对董事忠实义务的规定不够完善,建议我国《公司法》扩大董事忠实义务责任主体的范围,规定举证责任分配,归入权的具体行使主体、行使方式、行使期限等。