United States v Microsoft: High-tech Antitrust

'United States v Microsoft: High-tech Antitrust'. This article considers some of the substantive issues that have been raised by the case brought against Microsoft and that call into question the application of competition law to high-technology industries. Drawing arguments from both the United States and European Union jurisdictions the article focuses in particular on the relationship between intellectual property and competition law. Consideration is also given to product development and bundling, and to predation through innovation. In conclusion the author suggests that competition laws should continue to be applied to this sector, but that traditional analysis needs to be refined, and that intent should be more carefully considered.     

How I met your mother: Mitigating forced marriage in the United States

Forced marriage in the United States is a hidden issue for a growing number of children and young people. Being trapped in a marriage severely impacts a person's well-being, with long-term psychological and physical ramifications. Forced marriage increases the likelihood of domestic violence and sexual abuse, depriving victims of autonomy. To lessen the number of forced marriages, this Note proposes emulating a United Kingdom statute. The statute provides a comprehensive approach with tailored programs and services to serve the needs of victims of forced marriages. Adopting this statute will create uniform law, making forced marriages illegal federally.     

THE IMPACT OF CONTINUING EDUCATION TRAINING ON LAW GUARDIAN KNOWLEDGE,EFFICACY, AND PRACTICE BEHAVIORS

There is an increased demand for law guardians in domestic violence cases, especially those involving child witnesses. Training is required for law guardians to meet child clients’ needs. While workshops and conferences are typical venues for continuing education training, their effectiveness is unknown. This pilot study compared law guardians who attended a conference on community violence and children to nonattendees on several training outcomes. Results showed a positive impact on attendees’ feelings of efficacy and intentions to carry out new practice behaviors post‐conference; differences were maintained at follow‐up. Limitations and implications of this pilot study are discussed.     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.     

Bus interdiction efforts by the police:<Emphasis Type="Italic">United States v. Drayton</Emphasis>

The Supreme Court recently addressed the constitutionality of police interdiction efforts when conducting bus sweeps. The Court held that law enforcement officers are not required by the Fourth Amendment to “advise bus passengers of their right not to cooperate and to refuse consent to searches” (U.S. v. Drayton, 2002, p. 2107). The decision may have implications for how the judicial branch will balance the needs of law enforcement against citizen freedoms in the post-September 11th era. This article explores the surrounding legal issues, the case opinion, and policy implications of this case.     

Tort, Insurance and Incoherence

Some commentators have doubted whether, as is generally believed, liability insurance has had a significant expansionary effect on the law of tort. This article contends that the common assumption is, indeed, correct, and the crucial influence of insurance is clearly seen in the recent cases of Vowles v Evans and Gwilliam v West Herts NHS Trust . Once this has been acknowledged, the consequent radical incoherence in the basis of tort law needs to be confronted. The argument here is that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.     

Civil asset forfeiture, equitable sharing, and policing for profit in the United States

Purpose

Critics of asset forfeiture claim that forfeiture laws create financial incentives that inappropriately influence police behavior. The present study examines the relationship between measures of the financial incentive and legal burdens for civil asset forfeiture on federal equitable sharing payments to local law enforcement to determine whether police behavior is affected by different statutory incentives for forfeiture activity.

Methods

Using LEMAS and DOJ forfeiture data, this study addresses some of the limitations of previous research by using a multi-year average for forfeiture activity, an improved measure of financial incentives for law enforcement, and multiple measures of statutory burdens to law enforcement to determine the impact of forfeiture laws on forfeiture activity.

Results

Consistent with anecdotal reports and limited prior research, findings indicate that agencies in jurisdictions with more restrictive state forfeiture laws receive more proceeds through federal equitable sharing.

Conclusions

Results suggest that state and local law enforcement agencies use federal equitable sharing to circumvent their own state forfeiture laws when state laws are more burdensome or less financially rewarding to these agencies, providing additional evidence that police operations are influenced by financial incentives.     

Unincorporated Treaties and Small States

For small, developing, common law dualist jurisdictions aspiring to good governance based on the rule of law, their written constitutions are normally expressed to be their supreme law which regulates the allocation of governmental powers and accords their citizens a measure of predictability in the evaluation of their civil rights and determining their civic responsibilities. Predictably, therefore, competent decision‐makers of such states are extremely wary of international developments in treaty‐making and judicial decision‐making which, unwittingly or by design, operate to subject the interpretation and application of their supreme law to external determinants hostile or indifferent to their indigenous value systems. In the premises, dualism as historically understood and practiced by small, weak, sovereignties is seen as a normative prophylactic device for safeguarding and sustaining their preferred values. Drawing on a wealth of case law and legal literature, this article undertakes an in‐depth evaluation of the legal ramifications of unincorporated treaties on dualist jurisdictions, with particular emphasis on small Caricom Member States. Reference is made to the Caribbean Court of Justice (CCJ), which has been called upon to examine and pronounce on recent innovative determinations of the Judicial Committee of the Privy Council (JCPC) and which have been expressed by competent regional decision‐makers to introduce unacceptable levels of uncertainty into the administration of criminal justice in the Caribbean Community. It is submitted that the determinations of the JCPC reached in Thomas v Baptiste and reaffirmed in Neville Lewis v Attorney‐General of Jamaica, which ratified unincorporated treaties concluded by the executive, appear to have far‐reaching negative implications for the Member States of the Caribbean Community.     

Preferential Treatment, Social Justice, and the Part-time Law Student – The Case for the Value-added Part-time Law Degree

There has been growing pressure to increase diversity in legal education and the legal profession in England and Wales. While this has focused upon the absence of certain groups such as women, ethnic minorities, and the disabled, there has been no specific discussion of part-time law students. Drawing on questionnaires and focus groups with part-time law students across England and Wales, this article examines how their background and experiences may hamper their ability to participate and succeed in higher education and legal practice. In response to the consistent omission of part-time students' needs from attempts to enhance social diversity in universities and the legal profession, it also argues that affirmative action is now necessary and justified in respect of these students. Pragmatic suggestions are made for a contextual approach to affirmative action for part-time law students which adds value to their degree. Finally, the potential effects of affirmative action on part-time law students themselves and upon the gatekeepers to the legal profession are explored.     

亚洲法研究:过去、现在与未来

亚洲法研究始于二十世纪五、六十年代的美国,其后在欧洲、亚洲国家陆续展开。存在两种主要的亚洲法研究进路,一是以"法律与发展理论"为代表的西方法律视角;一是基于亚洲法的内部立场。美国的"法律与发展理论"经历了三个阶段的发展历程,各个阶段有其自身的特征。亚洲的亚洲法研究始于日本,韩国、中国等国家也正逐步展开,但其也存在若干困难。未来的亚洲法研究需要亚洲国家加强合作以及建立起对亚洲法的身份认同。     

Education,Languages and Linguistic Minorities in the EU: Challenges and Perspectives

Although, with the coming into force of the Lisbon Treaty, two provisions of EU primary law now refer to ‘minorities,’ there are no explicit EU competences and policies to promote the rights of minority groups in education. Nevertheless, EU law has a strong potential to impact the educational rights of linguistic minorities in Member States. To evaluate the right to access education, with an emphasis on the needs of minorities to preserve their identity, this paper first discusses the EU's relevant competences in education (Part II) and then in languages (Part III). Based on the analysis of relevant EU provisions, the paper concludes that EU law is unlikely to offer meaningful protection to linguistic minorities without explicitly endorsing their educational rights. However, to do so, the EU needs a stronger competence in education and minority rights.     

Legal Regime and Contractual Flexibility: A Comparison of Business's Organizational Choices in France and the United States during the Era of Industrialization

We compare the law governing business organizational forms inFrance and the United States during the nineteenth century andfind that, contrary to the conventional wisdom, the contractingenvironment in the U.S. was neither freer nor more flexiblethan in France. U.S. businesses had a more limited menu of organizationalchoices and also much less ability to adapt the basic formsto meet their needs. Moreover, American law did not evolve anymore readily in response to economic change than French law.In both nations, major changes in the rules governing organizationalforms required the passage of new statutes.     

Death in the Line of Duty: Game Warden Mortality in the United States, 1886–2009

Game wardens are conservation law enforcement officers who enforce fishing and hunting laws. It has been suggested that the occupation of game warden is the most dangerous and deadly job in law enforcement. Little research, however, has been directed toward the study of game warden deaths. In an attempt to extend our understanding of the deadly nature of this occupation, this study examined the number and causes of line of duty deaths for state game wardens in the United States from 1886 to 2009. Findings suggest that gunfire was the most frequent cause of death of game wardens during this time period. Other factors responsible for large numbers of game warden fatalities included vehicle accidents, drowning, aircraft accidents, and heart attacks.     

Law versus technology: Blockchain,GDPR, and tough tradeoffs

Inconsistency between the way in which the law is structured, and the way in which technologies actually operate is always an interesting and useful topic to explore. When a law conflicts with a business model, the solution will often be changing the business model. However, when the law comes into conflict with the architecture of hardware and software, it is less clear how the problem will be managed.In this paper, we analyze the contradiction of blockchain technology and the requirements of GDPR. The three contradictions we examine are (i) right to be forgotten versus irreversibility/immutability of records, (ii) data protection by design versus tamper-proofness and transparency of blockchain, and (iii) data controller versus decentralized nodes. We highlight that the conflicts can be handled through focusing on commonalities of GDPR and the blockchain, developing new approaches and interpretations, and tailoring the blockchain technology according to the needs of data protection law.     

Goodbye to All That? The Rule of Law,International Law,the United States,and the Use of Force

The attitude of past United States administrations to public international law, particularly but not exclusively governing the use of force, has often seemed ambivalent, or sometimes decidedly hostile (where the conduct of the United States itself was called in to question). This paper considers the attitude of many of those with power or influence in the Bush administration (particularly that of the 'neo-conservatives'), and the implications of their often thinly disguised contempt for public international law which might seek to constrain the exercise of United States power. The conclusion is that while the academic arguments which seek to justify this American 'exceptionalism' are worthy of serious examination, they are ultimately inadequate and in the interests of neither the rest of the world, nor, finally, the United States itself.     

The Legal Profession in the european Union – a Comparative Analysis of Four Member States

Cross-border legal practice has finally become reality in Europe mainly thanks to two factors: the legal framework offered to EC lawyers by the EC legislator and the effect of globalization on legal profession. This article focuses primarily on the success of EC/EU efforts in abolishing obstacles to the free movement of lawyers. Particular attention is drawn to the Establishment Directive, adopted in 1998, opening up new perspectives for lawyers. Secondly, it discusses how globalization has contributed to this development. In relation to the above, this article also explores the new concept of establishment stemming from the expansion of law firms in Europe. Thirdly and mainly, it considers the national positions and the difficulties in harmonizing the legal professions throughout Europe. The examples of four Member States: the UK, France, Germany and Italy demonstrate how much they differ from each other as far as the needs, expectations and rules governing the legal profession. This revised version was published online in August 2006 with corrections to the Cover Date.     

Establishing a compulsory drug treatment prison: Therapeutic policy, principles, and practices in addressing offender rights and rehabilitation

A Compulsory Drug Treatment Correctional Center (CDTCC) was established in Australia in 2006 for repeat drug-related male offenders. Compulsory treatment law is inconsistent with a therapeutic jurisprudence approach. Despite the compulsory law, a normative offender rehabilitation framework has been established based on offender moral rights. Within moral rights, the offender rehabilitation framework addresses the core values of freedom (supporting autonomous decision-making) and well-being (supporting support physical, social, and psychological needs). Moral rights are underpinned by a theory or principle which, in this instance, is a humane approach to offender rehabilitation. While a law that permits offenders to choose drug treatment and rehabilitation is preferable, the article discusses the establishment of a prison based on therapeutic policy, principles, and practices that respond to participants as both rights-violators and rights-holders. The opportunity for accelerated community access and a therapeutic alliance with staff has resulted in offenders actively seeking to be ordered into compulsory drug treatment and rehabilitation.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

台湾地区行政法学之变革、挑战与新世纪展望

台湾地区自1987年解严后,社会发展朝气蓬勃、进步迅速,行政法学在此背景下吸收多元丰富的养分而有诸多变革。行政法总论如公私区分理论、法律保留原则面对新的挑战,行政组织法则有独立机关、行政法人的建置,电子化科技的使用更对行政行为理论产生革命性冲击。而全球化、高科技化不但加速信息交流,就连疾病、灾害的传播也是一日千里,部门法应如何因应调整,亦在台湾行政法学者的关注之中。回顾并检讨现况,才能展望行政法的未来。     

法学专业实习之反思与借鉴

法学专业实习作为实践教育的重要环节,在法学本科教育中有着重要的作用。面对当前法学本科教育专业实习日益严重的形式化倾向,有必要反思法学专业实习的必要性,并在此基础上实现法学专业实习模式的创新。本文以全新的教育观念为指导思想,在比较借鉴世界各国法学实践教育经验的基础上,结合我国的法学教育实际及在实践中积累的经验,提出可行的建议。