The Proposed Framework for Environmental Strict Liability in Europe: The Polluter Pays…Possibly

On January 23, 2002, the European Union took a bold step toward developing a common approach to environmental liability, one that imposes a strict liability standard aimed at ensuring that the “polluter pays”. However, opinion is divided both on the merits of this standard and on the approach taken at the EU level. This article examines how the EU's proposal and the imposition of environmental strict liability may herald a new era for environmental experts, insurers, and lawyers across Europe.     

Deterioration or refinement? Impacts of an increasing number of lawyers on the lawyer discipline system in Japan

This paper discusses the impacts of an increasing number of lawyers (bengoshi) on the lawyer discipline system in Japan. Due to a relatively small number of lawyers up until the 1990s, few people, including citizens and lawyers themselves, cared about the misconduct of lawyers. However, there appears to be a recent change in this tendency. The sudden increase in the number of lawyers after the Justice System Reform in 2001 focused citizens’ awareness on quality in the practice of law. Some lawyers claim that the increase in the number of young lawyers has deteriorated the quality of legal services, thereby damaging public trust in lawyers. In this paper, I analyze lawyer discipline cases from 1988 to 2015 that are available to the public. The result shows that while the number of disciplinary cases actually has increased since 2004, it is not young lawyers but primarily experienced senior members who have contributed to the increase. In conclusion, I argue that an increase in lawyer discipline is a positive phenomenon for the Japanese bar in developing detailed ethical standards, thereby providing better legal services.     

Medical aspects of malpractice crisis in Greece: medical responsibility: a doctor's view

Malpractice and medical liability have been introduced into Greek reality over the last decade. Forensic sciences hold a key role in the investigation of medical liability cases. Along these lines, the medical examiner stands between colleagues and lawyers, who have divergent intentions in the investigation of such cases. This article offers an overview of the rapidly changing reality in Greece and approaches medical liability from the doctor's viewpoint. The role of forensic science and the medical examiner is portrayed, along with the emerging difficulties in the investigation of medical liability cases. Also attempted is an interpretation of the crisis phenomena that are very often seen between doctors and lawyers. However, the intent of this article is to search for ways to turn competition and tension between medical and law professionals into cooperation and understanding for the best interest for both professions and, more importantly, for the community.     

Young Lawyers and Work in the Public Interest

Much of the discussion of the bar's "public interest" effort has centered on the apparent unwillingness of lawyers, including young lawyers, to pursue public interest rather than traditional careers. To the extent that it is agreed that public interest work should be increased, the problem has been viewed as one of supply of lawyers rather than one of demand for their services. In this paper, just the opposite is argued; a variety of evidence is brought forth to suggest that the current public interest effort is limited mainly by the number of jobs available in that sector. In this light, various methods of increasing the funding of the public interest sector, and hence the number of jobs, are reviewed.     

Parental-leave policy for male lawyers in Helsinki and Montreal: cultural and professional barriers to male lawyers’ use of paternity and parental leaves

Family policies in Finland and French Canada (Québec) include fathers’ rights to paternity and parental leaves, which have resulted in more fathers using parental leave. Yet this policy has a limited outreach to male-dominated professions, including the legal profession. In this article, we examine attitudes to paternity and parental leaves among male lawyers and the motives behind their decisions to use or not use them. We approach the issue from the perspective of the legal profession’s professional ethos, which impacts lawyers’ attitudes and practices regarding work-life balance. In our analysis, we draw on 20 Finnish and 18 Quebecois interviews with current and former male lawyers from private law practices in two urban civil-law contexts: Helsinki, Finland and Montreal, Canada. The findings indicate that, in traditionally male-dominated professions, it is not enough to provide men with a statutory right to paternity and parental leave. There is also a need for organisational solutions and peer encouragement in the work environment so that men feel comfortable taking leave.     

Types and Causes of lawyers' Professional Liability Claims: The Search for Facts

Lawyers have become concerned about the rising numbers and the rising amounts of professional liability claims, which have in turn driven up liability insurance premiums and temporarily even caused an alarming contraction in the supply of insurance coverage. This article examines the state of factual information that could be used to measure and explain the development. It goes on to discuss the potential role that increased knowledge of the types and causes of professional liability claims could play in efforts to reverse the development, followed by a discussion of the difficulties of obtaining usable data from the two principal potential sources—lawyers and their insurers. The second half of the article describes and evaluates the work of the American Bar Association's Special Committee on Lawyers' Professional Liability in developing, in cooperation with the major insurers, a comprehensive data collection and reporting system for lawyers' professional liability claims.     

Drug liability litigation: toward better dental care

Seattle attorney Ann Pearl Owen reviews the proliferation of litigation involving dental anesthesia and drug liability, ties it to trends in dentistry and pharmaceutical manufacturing, and finds a positive role for trial lawyers.     

Missed breast cancer: the legal factors

Any reading of the relevant legal authorities confirms the special difficulties involved in the diagnosis of breast cancer. In many cases a delayed diagnosis of breast cancer is made at a time when a patient's position has become terminal. It is an easy task for lawyers and expert witnesses to determine in hindsight what should have been done at some point in the past. This article describes how the courts have dealt with this issue and comments on appropriate procedures and approaches to both protect the interests of the patient and confine liability for the medical practitioner.     

Agents of Change or Unchanging Agents? The Role of Lawyers within Russian Industrial Enterprises

The transition from state socialism toward market capitalism has led to an almost endless supply of new laws and legal institutions. Industrial enterprises need to adapt to this new institutional regime. In-house lawyers are well placed to be agents of change in facilitating this adjustment. Using survey data from 328 Russian enterprises, the article examines the role of company lawyers, asking whether they have fulfilled this potential. Legal expertise is not in short supply, but lawyers are marginalized within the enterprise. They focus on established, routine tasks, such as handling labor relations or drafting form contracts, rather than on shaping enterprise strategies in the newer areas created by the transition, such as corporate governance or securities law. The failure of in-house lawyers to emerge as agents of change in Russia reflects a continuation of their low status during the Soviet era and the lack of professional identity among these company lawyers.     

The Practice of Law With LGBT‐Parent Families

In this article, I examine how a history of legal conflict has produced a constantly evolving professional identity for lawyers representing lesbian/gay/bisexual/transgender (LGBT) clients on family matters. Drawing on in‐depth interviews with 21 lawyers, I describe variation across areas of specialization, advertising, clientele, and access to professional networks. In addition, I focus on how sociopolitical and legal context shapes professional identity and practice for these lawyers, demonstrating the importance of practice location for this group of lawyers. Although interviews were conducted prior to national marriage recognition, these findings provide insight into the future development of the LGBT family law profession post‐Obergefell.     

The New Business of Nanotechnology: Exploring Commercial Opportunities and Risks

There is an Alice-in-Wonderland awe associated with nanotechnology. While the technology is both exciting and hopeful for many good reasons, for businesses, and the lawyers who counsel them, the lack of certainty in areas involving potential risk is unsettling. The U.S. Environmental Protection Agency (EPA) is only now beginning to think through how best to apply the authority it has under the traditional environmental statutes, and to adopt regulatory programs and policies to address the potential risks and regulatory challenges nanotechnology invites. While research is progressing briskly on key hazard and exposure nanotechnology issues, much remains to be done leaving commercial applications of nanotechnology in new, unsettled waters. This article identifies some of these challenges and the non-conventional, innovative ways that lawyers, business managers, risk assessors, and others must embrace to manage risk and avoid liability effectively.     

论有限责任公司股权的回购

我国公司法虽明文规定了股份有限公司回购自己股份的范围,但对有限责任公司的股权回购问题却未置可否,而司法及学说对此的态度也是莫衷一是。有限责任公司兼具人合性的特征,且对回购股权有特殊的现实需求。从比较法的角度来看,国外主要国家均在不同程度上放宽了对公司回购自己股份的管制,对有限责任公司更为宽松。因此,我国应放开对有限责任公司回购自己股权的限制。在此前提下,为保证股东间的公平、维护债权人的利益及公司治理的公正,我国应立法制定一系列有关程序、财源、违反的效果及惩罚等方面的配套规定。     

Vico and Imagination: An Ingenious Approach to Educating Lawyers with Semiotic Sensibility

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as “given” even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because clients often can achieve their objectives when their lawyers crudely manipulate the symbols of law, these endeavors pay very well. Well-paid lawyers tend not to ask too many questions. Consequently, semiotics is, at best, misunderstood by lawyers; more likely it is wholly unknown. A lawyer’s avowed instrumentalism is the very problem to be addressed in this regard. For the scope of discussion, I refer to Vico’s famous On the Study Methods of Our Time and draw my conclusion for the lawyer of our time.     

The software Proteus – UsedSoft changing our understanding of software as ‘saleable goods’

One of the ongoing conundrums in the field of IT law is the nature of software. Pragmatic solutions have been adopted, and lawyers and developers alike have become comfortable that contracts and licences can be drafted and concluded in relative certainty despite the fundamental conceptual problem. As Atiyah's Sale of Goods puts it:

?…?the key to the conundrum is not to get lost in metaphysical questions as to whether or not software is goods, but to focus on who is being sued in respect of what sort of defect, and to be clear as to the basis on which liability is being imposed. (Atiyah 2010, 78–79)     

Conceptualising legal culture and lawyering stress

Recent evidence of the prevalence of stress and mental health issues among Australian lawyers has led to calls for legal culture to be changed to promote a better work–life balance and wellbeing for practitioners. Yet three decades of empirical studies in North America have shown consistently high levels of job satisfaction among lawyers. This paper investigates the role of legal culture in sustaining the paradox of satisfied lawyers under working conditions that may be conducive to stress. Drawing on Bourdieu's theory of practice and the literature on work stress, the paper conceptualises the relationships between the demand of legal work, the culture of legal practice, and lawyering stress. It concludes with a discussion of the implications of this kind of analysis for reforming the legal profession. In spite of the difficulty of cultural change, the paper argues that as consciousness is raised and the field changes, alternative models of practice will need to emerge, so that lawyering stress may become a mechanism for change not reproduction.     

Limited Liability and the Public''s Health

Corporations, through their products and behaviors, exert a strong effect on the well-being of populations. Industries including firearms, motor vehicles, tobacco, and alcohol produce and market products negatively impact public health. All of these industries are composed of corporations, which are legal fictions designed to provide limited exposure to liability, through a variety of mechanisms, for their investors and directors. This means that when actions are taken on behalf of a corporate entity, the individuals responsible generally will not face personal liability for the negative results of those actions. To illustrate this point, this article considers corporate products or practices that have caused harm in varied settings, and analyzes the role that limited liability played in these cases. In addition, the article identifies ways to modify or eliminate some of the principles and practices that accompany limited liability.     

Prospective lawyers’ rape stereotypes and schematic decision making about rape cases

Abstract

Two studies explored stereotypic information processing in rape cases by prospective lawyers in Germany. In Study 1, 451 undergraduate law students rated rape scenarios varying with respect to defendant–complainant relationship and coercive strategy (force versus exploitation of the complainant's alcohol-induced defencelessness). Acceptance of rape myths was also measured. Likelihood of defendant liability was rated to be lower when there was a prior relationship between the parties and when the defendant exploited the complainant's defencelessness as compared to when he used force (except in the ex-partner rapes where blame was higher in the alcohol-related than in the force-related cases). Complainant blame was higher when there was a prior relationship between the parties and was higher in the alcohol-related cases than in the force-related cases, except in the ex-partner rape where the pattern was reversed. Participants with high rape myth acceptance held the defendant less liable and blamed the complainant more, especially when the two had known each other. Study 2 largely replicated these findings with 129 postgraduate trainee lawyers and showed that sentencing recommendations also varied as a function of defendant–complainant relationship and coercive strategy. Providing participants with the legal definition of rape did not reduce reliance on rape stereotypes.     

我国《公司法》修订中商事连带责任的重构——基于“连带”的历史发展脉络

我国《公司法》存在用连带责任替代连带之债、连带责任与无限责任、补充责任混同使用的现象,给理论与司法实践造成困扰。究其原因是对商事连带责任与民事连带责任的关系界定不清,对公司法中的商事连带责任制度缺乏体系化思考与精细化设计。连带之债起源于罗马法的整体之债,形成于中世纪注释法学的理论抽象,发展于近现代民法。近现代商法将法定原因连带责任引入商事规范,构建了商事连带责任制度。商事连带责任与民法连带之债共同具有给付与清偿的整体性特征,但商事连带责任也具有自身的商事特性。由于商事信义义务的道德标准高于民事诚信义务,商事法定连带责任相对于民事连带责任的适用范围更为广泛。基于商事领域的公司股东有限责任制度,商事连带责任可为有限连带也可为无限连带。我国《公司法》未来的修订应在我国《民法典》连带之债规定的基础上对商事连带责任进行体系化贯通,谨慎设定法定连带责任,厘清连带责任与无限责任的关系,对有限连带责任与无限连带责任、连带清偿责任与补充清偿责任进行细化区分。     

Poetic Justice: An Interpretation of Lawyers’ Reactions to Verse Judgments

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.     

合伙企业有限责任否认与非自愿性债权人保护

20世纪后半期以来,有限责任发展的路径是向合伙企业的迅猛扩张,但在有限责任全面松绑的情况下,如何运用有限责任否认法理来保护债权人特别是非自愿性债权人却是个新问题。合伙企业有限责任否认分有限责任滥用与未滥用两种情况,但应注意:在有限责任未滥用的情况下,非自愿性债权人纯粹承受有限责任的负面价值极不公平,应在一定条件下否认有限责任;在有限责任滥用的情况下,适用法人人格否认的典型情形对合伙企业也不能简单适用,合伙企业的有限责任否认有自己的特殊之处。