Busting the Myth of the Unavailability of Insurance Rule's Application to Loss Allocation for Pollution Liability Claims Since 1986

Tens of millions of dollars in pollution liability losses have been mistakenly allocated to general liability insurers under the “Unavailability of Insurance” rule in jurisdictions that employ it. Under this rule, a policyholder is not allocated losses for years when they claim that pollution liability was unavailable – mainly after the advent of the 1986 “absolute” pollution exclusion. Recent research has been compiled to include thousands of pages of evidence that by 1986 and to this date there was and has been a viable pollution liability insurance market that would not only underwrite a current year's risks, but also erase any prior pollution insurance coverage gaps by insuring decades of prior acts. This article looks at this rule and the enormous impact it could have on insurers' pollution liability reserves if it continues to be misapplied.     

Reds Need Not Apply: Communism and the FCC, 1940-60

New communication technologies—particularly the Internet—have drastically complicated the problem of preserving privacy. As a result, a multitude of solutions for this increasingly complex area of the law have been put forth in recent years. This essay concludes, however, that changes in technology do not warrant altering the underlying constitutional balance that was arrived at decades ago in the tort law of privacy. The free speech limits on privacy law were imposed for good reason, and steps to protect the interest in the new online environment should not be ones that upset that careful balance.     

The uncertain future of data retention laws in the EU: Is a legislative reset possible?

The article discusses the CJEU's most important case law, including interpretations presented in recent cases relating to data retention for both national security purposes (Privacy International, La Quadrature du Net) and the fight against serious crime (H.K). The analysis is a starting point for discussing the draft e-Privacy Regulation, in particular a controversial proposal introduced by the EU Council that may limit the Court's jurisdiction in cases involving data retention rules that cover state security.Negotiated over the past five years, the draft e-Privacy Regulation fleshes out EU data protection rules governing electronic communication services. As a result, the way in which obligations under the Regulation are defined is critical in setting a standard for retention rules consistent with CJEU case law for decades to come. At the same time, succumbing to pressure from Member States may have the opposite result – the emergence of new ambiguities concerning not only the admissibility of data retention but also the competence of EU institutions to regulate this area of the telecommunications sector.     

Mapping the development of China's data protection law: Major actors,core values,and shifting power relations

This Article seeks to map the possible paths of the development of China's data protection law by examining the changing power relations among three major actors - the State, digital enterprises and the public in the context of China's booming data-driven economy. We argue that focusing on different core values, these three major actors are the key driving forces shaping China's data protection regime. Their dynamic and multidimensional power relations have been casting the development of China's data protection law with various uncertainties. When persuing different, yet not always conflicting values, these three major actors may both cooperate and compete with each other. Based on our careful analysis of the shifting power relations, we identify and assess three possible paths of the development of China's data protection law. We are much concerned that the proposed comprehensive data protection law might be a new attempt of the State to win legitimacy abroad, while actually trying to reinforce massive surveillance besides economic goals. We argue that a modest alternative may be that this law might show some genuine efforts for protecting data privacy, but still with poor enforcement. Last, we argue that the most desirable development would be that this law could provide basic but meaningful and effective protection for data privacy, and lay a good foundation for further development.     

Protecting the Internet with international law

The Internet remains the odd child of international law. While forever more universal law venues such as conferences, edited volumes or research projects consider “the Internet” a peculiar, interesting aspect of its well-recognized disciplines, international scholarship fails to address the global network as a whole, stalling the application of the fully developed and well-suited international law apparatus to the global community's biggest contemporary challenge. “Internet governance” is still perceived by legal scholars as construed to international relations and, at best, a potential ground for soft law in a distant future. That is not the case: Internet governance, with all its challenges, has been shaping international law for almost two decades. The latest unveilings of the ways in which the Internet impacts global policies and laws caught the public eye with the 2018 Cambridge Analytica scandal and, previously, with the 2013 Snowden revelations, yet as surprising as they might have been to the average user, they are direct results of network's architecture and its governance model. This paper looks at the evolving concept of “Internet's public core” as an opportunity to bridge this dogmatic gap. We identify the scope and meaning of “Internet's core” and assess its legitimacy within existing international normative frameworks. We argue that the technical components crucial to the flawless operation of the global network, such as the Domain Name System and Internet's backbone networks, can be effectively protected with international law.     

Encryption: A 21st Century National Security Dilemma

As the 21st century approaches, encryption is presenting a national security dilemma in the US. While the use of strong encryption for computerized data is essential in protecting our nation, widespread, unregulated encryption poses serious problems on two levels: encryption could inhibit the government's ability to enforce the law as well as gather foreign intelligence. As a result, the government has established export controls on encryption products and proposed a 'key recovery' system designed to enable law enforcement officers to access encrypted data in the course of lawful investigations. The export controls have been ineffective and counterproductive policy and are arguably unconstitutional under the First Amendment. However, export controls are the only viable solution to the intelligence gathering problem and will need to survive these political and legal attacks or our national security could be jeopardized. Key recovery will be difficult and costly to implement and has come under attack by civil liberties' groups. Nevertheless, a cost-effective compromise on key recovery is necessary to meet the needs of law enforcement. Such a system, if it mirrored current electronic surveillance law, would effectively balance individual privacy rights and governmental interests and thus should survive constitutional scrutiny. Congress and President Clinton ought to enact key recovery legislation soon before the use of encryption becomes commonplace. A failure to act intelligently and effectively on this critical, cutting-edge issue could compromise our nation's future.     

Voices heard and unheard – A Scandinavian perspective

Children's rights to participate in legal processes concerning them have been a key policy issue for the Scandinavian legislators during recent decades. From the 1980s, there have been frequent amendments to the law to secure the position of the child. Despite numerous provisions stating the right of the child to express his or her views and for these to be considered before decisions are taken, there are continuing obstacles to full recognition of children as legal subjects. Too often children's voices are not heard or not heeded. This article explores the reasons for this and argues that the ambition to promote equal parenthood is one reason for the failure to give the child's views real impact on decision-making in matters concerning children.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

Mental health and fitness to plead proposals in England and Wales

Proposals to reform fitness to plead legislation have been published by the Law Commission in England and Wales; they include a new test of decision making capacity and a new psychiatric test that has yet to be fully developed. Although proposals have met with some support, there have also been detractors. The history of fitness to plead is reviewed and current case law (including the 1836 Pritchard criteria) is examined. Although existing arrangements have been criticised, this may be attributable to inconsistent practical application, rather than inherent conceptual flaws. The Pritchard test has largely stood the test of time and has emerged relatively unscathed. Fitness to plead is not a medical construct, but rather a legal entity and any new test would be likely to introduce its own difficulties. A capacity based assessment could enhance debate and disagreement and increase court time in many cases, presenting new resource implications with questionable benefit. As the existing Pritchard criteria, amended by case law, already include a five limb test that closely resembles a capacity assessment (ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence) and given the difficulties in introducing a functional test format in other jurisdictions, the Law Commission's proposals should now be set aside, perhaps for another day: reconsideration may be possible some decades hence, pending enhanced scientific developments within psychiatry and better understanding of the mind.     

Returning to the Past: The South Australian Colonisation Commission,the Colonial Office and Aboriginal Title

In the closing decades of the twentieth century many scholars sought to both address and redress the ways in which indigenous people's rights in land had been treated historically by colonisers in Anglophone settler societies. More recently, this work has been criticised by a new generation of legal historians who have sought to delineate more carefully the role that the law actually played in the treatment of aboriginal title in the past. In keeping with the latter approach, this article seeks to recover the manner in which the indigenous people's interests in land were treated in the British colony of South Australia at the time it was founded in the early-to-mid nineteenth century. It emphasises the manner in which the colonisers, the South Australian Colonisation Commission, rather than the British Colonial Office, deployed a range of legal arguments, especially in the context of political negotiations between these two parties. It concludes that the imperial government's treatment of indigenous interests in land was primarily determined by its perception of the relationships of power on the ground between the colonial state, the settlers and the Aboriginal people rather than by its application of any particular legal principle or norm.     

Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice

During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published that have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe's judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches, the Court is perceived as just one more political player among other actors and institutions, able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial lawmaking are based on a non‐trivial and non‐political rationality and cannot be understood appropriately without paying attention to the context of European law.     

Public Rewards and Innovation Policy: Lessons from the Eighteenth and Early Nineteenth Centuries

There has been renewed interest in recent years in using prizes and rewards to promote innovation. History has played a central role in public debates in the UK about the merits of such interventions, with the Longitude Prize 2014 being self‐consciously modelled on its eighteenth century precursor. Similarly, historical case studies have been used extensively in the scholarly literature in this area. However, it is striking that there has been little engagement with parliament's role generally in rewarding inventors in the eighteenth and early nineteenth centuries and how this formed part of a broader system of rewards. The article explores how this system operated and demonstrates that it formed an established part of the legal landscape for many decades. It considers the extent to which a more complete understanding of the historical use of prizes and rewards during the key period of Britain's industrialisation might inform current debates.     

(Let's) playing by the rules: A choice of law rule for communication of copyright material from video games to the public,through Let's Plays

Several proposals have been made regarding a choice of law rule for ‘ubiquitous infringements’ (the unauthorised dissemination of copyright material online) but none have been implemented by national courts, which continue to struggle with the issue of what law determines whether ubiquitous infringements have occurred. This article explores fresh solutions to that issue, focusing on the scenario where copyright material from video games is communicated to the public, through its inclusion in Let's Plays (playthroughs of video games streamed from platforms like YouTube), or where such use of that material, under the terms of a license, is contemplated. In this scenario, the issue of infringement should be governed by the law of the place of the video game developer's incorporation, as a proxy for laws qualifying as the lex loci protectionis (law of the country where protection is sought (Fawcett & Torremans (2011)), abbreviated as the LLP). Where any party can prove specific differences between the law of the place of the developer's incorporation and a law qualifying as the LLP (called State A's law for ease of reference), in aspects essential for deciding whether infringement has occurred, the forum court must issue separate rulings as to whether (i) the claimant's copyrights under State A's laws have been infringed; and (ii) the claimant's copyrights under laws besides those of State A have been infringed. Courts should also adopt, as a mandatory rule of their domestic law, a rule precluding de facto infringements of copyrights in video games and/or their constituent elements from giving rise to liability for infringement.     

The Freedom of Information Act 1966–2006: A Retrospective on the Rise of Privacy Protection Over the Public Interest in Knowing What the Government's Up To

The tension between an individual's right to privacy and the public's right to obtain government-held information represents a conflict between two vital democratic values. The solution to resolving this tension lies in striking an appropriate balance between a person's need to be let alone and society's need to be informed. The crafters of the Freedom of Information Act (FOIA) intended to set such a balance when they created two privacy exemptions to the statute. In instances when the government refuses to release a record on privacy grounds, then a requester may turn to the courts to interpret what the law instructs. Consequently, the judiciary has significantly shaped the contours of the FOIA over the years. This article examines whether the Supreme Court's current FOIA-related privacy framework comports with the FOIA as reflected in its legislative history.     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.     

Law enforcement information sharing: A Florida case study

Many attempts have been made over the last several decades to improve communication among law enforcement agencies. This article is a case study of a “low-level” data sharing project in Florida that could serve as a national model. The Florida Law Enforcement Data Sharing Consortium is a partnership between the University of Central Florida and more than one hundred law enforcement agencies. It offers an inexpensive, yet technically advanced alternative to the proprietary data sharing model. Its distributed architecture was endorsed by the Markle Foundation, the 9/11 Commission, and the 2004 National Security Act. Civil liberties concerns raised by this and other types of data sharing projects are discussed.     

Bad medicine: prescription drugs, preemption, and the potential for a no-fault fix

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs' lawyers alike.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Bucking the Party Line: Calavita's Invitation to Law & Society (In Which the Author Is Invited to a Party Where He Encounters Many Old and Familiar Faces,Becomes Argumentative,Stays Up Too Late,and Finally Departs in Search of New Adventures)

Intended as a short survey text, Kitty Calavita's Invitation to Law & Society expertly summarizes many of the central themes of law and society scholarship as they have developed over the past fifty years. It also clearly identifies the field's object of attention: “real” law. I use this commentary on the book as an opportunity to assess the field as it enters its sixth decade. How has the field changed? What are its defining characteristics? What is “real” law? Does law and society research have a future?