Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

CHINESE INVESTMENT IN THE EUROPEAN UNION & NATIONAL SECURITY

Rapidly increasing foreign direct investment from China within the European Union over the past decade has been, in general, greatly fostered by an open and non-discriminatory legal regime. However, 28 Member States retain control over the review of such investment for purposes of evaluating national security concerns within their respective borders. Current trends reveal a strong likelihood of substantial increases within the coming years in Chinese investment touching upon so-called “strategic” or “sensitive” sectors within the European Union nations. Similar Chinese investment in the United States has raised some strong opposition from the federal government on national security grounds. Accordingly, this article compares and contrasts the European Union’s current fragmented system of national security review with that of the United States — a centralized legal regime which provides for exclusive federal government national security review of foreign investment. The question is then posed as to the likelihood of the European Union adopting an American-style unified national security review system to replace the existing fragmented system, especially in light of the newly enhanced legal competence of European Union authorities over issues concerning foreign investment. This article then concludes with an analysis of the advantages to Chinese investors stemming from the creation of such a European-wide system of national security review.     

实力变迁、法律传统与美欧印中贸易政策的演进

国际经济格局的深刻变化引发了美欧印中等主要贸易体贸易政策的变化.这种变化主要体现为其外贸法、外资法和出口管制法的修改,而国际习惯法和国际经济条约对这种修改的约束有限.美欧印中的代表性国际经济法理论分别为"制度管理说"、"规范承诺说"、"贸易民主论"和"责任共担论",这些理论反映了各贸易体的国际经济法传统和理念.以这些理...     

Patent first, ask questions later: morality and biotechnology in patent law

This Article explores the U.S. "patent first, ask questions later" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on "anything under the sun made by man," and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created "moral utility" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not "useful." The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the "patent first" approach, and considers the benefits and disadvantages of the "ask questions first, patents later" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.     

The Open Architecture of European Human Rights Law

The evolution of the European human rights regime is often described as the development of an integrated order with the European Convention of Human Rights as its governing 'constitutional instrument'. It is argued that the regime is better regarded as pluralist - characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in the European Union. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in practice. The analysis of the factors leading to this convergence indicates that central characteristics of pluralism – incrementalism and the openness of ultimate authority – have contributed significantly to the generally smooth evolution of the European human rights regime. This suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.     

The alleged distinction between euthanasia and the withdrawal of life-sustaining treatment: conceptually incoherent and impossible to maintain

Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded. Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.     

Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a Comparative Perspective

Abstract:  The European Union aims to develop a European criminal justice to combat cross-border crimes of smuggling of migrants and trafficking in human beings. This article focuses its attention on European Community/European Union (EC/EU) law and on two Member States, Italy and the United Kingdom (UK). The findings show that there are diversities and ambiguities in the definition of irregular migration. On the contrary, the EU and Member States should concentrate their efforts on the two crimes of smuggling of migrants and trafficking in human beings rather than criminalising irregular migration.     

Regional Technological Differences: The Case of Southern European Union

This paper examines the spatial spillover effects and the productivity rate of patents in southern European Union. It provides a systematic analysis of the relationship between productivity of patents and the factors that generate economically useful new technological knowledge. An applied spatial econometric framework is employed since this approach is particularly useful in the study of the spatial patterns of patents productivity, at the lowest possible levels of spatial aggregation.     

数据财产权益的私法规范路径

数据的本质是信息,应将数据界定为以电子形式存储和处理的体现一定事实内容的信息。数据分类应聚焦非公开数据和公开数据,前者可受商业秘密制度保护,对作为当前主要研究对象的后者如何保护尚无共识。美国与欧盟调整数据财产权益的法治实践表明,应承认数据控制者对其合法收集处理之数据享有独立的财产权益,同时这种财产权益不宜具有绝对性。我国立法未规定数据财产权益机制,实务模式和学理见解存在不同程度局限。应在数据之上创建具备有限排他性的准财产权,使数据控制者得以据此对抗特定类别主体和特定类别行为。应保留《民法总则》第127条,在《反不正当竞争法》第9条之后新增一个条文对数据准财产权保护作出规定。     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

The relation between autonomy-based rights and profoundly mentally disabled persons

A chapter from his forthcoming book "Deciding for the Profoundly Mentally Disabled," Professor Norman Cantor argues persuasively for the right of incompetent persons to have a surrogate make critical medical decisions on their behalf, particularly in the context of refusing life-sustaining treatment. While abusive surrogate decision-making is always a concern, Professor Cantor recommends both substantive and procedural protections in order to preserve intrinsic human dignity for the profoundly disabled.     

Priority and rescue financing in the Commonwealth Caribbean: lessons from the United States of America,United Kingdom and European Union

In investigating the operation of the rescue culture in the Commonwealth Caribbean as compared to the United Kingdom administration regime and Chapter 11 of the United States Bankruptcy Code, this paper laments that the Commonwealth Caribbean and the USA fail to consider key issues of post-petition priority for finance. It also delves into a critical, but overlooked, pillar of strong rescue frameworks: access to finance. Taking guidance from the European Union framework on state aid and the UK Funding for Lending and National Loan Guarantee, the author proposes a fair, transparent and efficient framework encompassing state involvement and state-driven private sector engagement.     

Patenting of Research Results Related to Genetic Resources from Areas beyond National Jurisdiction: The Crossroads of the Law of the Sea and Intellectual Property Law

The conservation and sustainable use of marine biodiversity beyond national jurisdiction has attracted increasing attention from international fora over the last 15 years. A particular issue that is currently debated surrounds the regime for research activities related to biological resources from areas beyond national jurisdiction. This article considers the implications of patenting the research results of such activities in the context of the United Nations Convention on the Law of the Sea. It concludes that policy clarification is needed in order to ensure that any regime for bioprospecting in areas beyond national jurisdiction provides incentives for researchers and prospectors to continue uncovering the mysteries of the deep oceans, including through the issuance of patents, while at the same time ensuring a fair sharing of the benefits of research results with all States.     

The European Union-Turkey Controversy over Cyprus or a Tale of Two Treaty Declarations

When the European Council in 2004 decided to open accessionnegotiations with Turkey, it linked Turkey's accession processwith the Cyprus problem and made the signature of an AdditionalProtocol to the EC-Turkey Customs Union Agreement extendingthis Agreement to the ten new Member States of the Union, includingthe Republic of Cyprus, a precondition for the start of accessionnegotiations. Not having been recognizing the Republic of Cyprussince 1963, Turkey had to avoid everything that could be interpretedas a recognition of the Republic of Cyprus when concluding theAdditional Protocol. This led Turkey in September 2005 to makea "Declaration on Cyprus" when signing the Protocol which, inturn, triggered a counter declaration by the European Communityand its Member States. The two declarations do not qualify asreservations but are general statements of policy or, at best,interpretative declarations that do not have any effect on thesubstance of the Protocol and that are not binding upon theparties.     

Forgetting the First Amendment: How Obscurity-Based Privacy and a Right to Be Forgotten Are Incompatible with Free Speech

The privacy of personal information on the Internet has received special attention recently in both the United States and the European Union, and legislative and regulatory proposals regarding the reform privacy law abound. This article examines several prominent theories that undergird the American First Amendment and attempts to demonstrate that the concept of a privacy interest arising out of the obscurity of information, as a social normative principle, and the right to be forgotten, as a legal mechanism concerned with the European idea of dignity-based privacy, are fundamentally at odds with the right of freedom of speech.     

Biotechnological invention patents: a legal-economic analysis]

Not without controversy, patents have traditionally been considered as elements which stimulate and protect inventive activity. In this article, we look at the economic advantages of a patent system and also at the possible critcisms. We then examine the application of patents in modern biotechnology. After concluding that current intellectual property laws do not come out clearly against the protection of biotechnology inventions, we then review the proposals for European Union regulation in the form of a directive which would clarify patenting possibilities.     

Website accessibility and the European Union: citizenship,procurement and the proposed Accessibility Act

Websites can be accessible to all if they are designed according to certain principles. Website accessibility has long been a European Union policy priority, particularly with the growth of egovernment services and the related impact on citizenship. A number of studies, while showing some improvement in accessibility, indicate the need for accessibility improvement in relation to egovernment services. This article outlines the European Union's policies on accessible websites and the related legislation. A theme in the development of disability related Directives is fragmentation and the lack of harmonising principles. Public procurement has been used as an extremely effective tool to increase accessibility in the United States, and it is this approach that lies at the heart of the proposed Accessibility Act. This initiative seeks to harmonise standards and policies on accessibility to harness fully the power of the internal market and the commercial impetus in order to increase access. While the Accessibility Act is currently being drafted after recent public consultation, this article evaluates the potential impact it could have on the accessibility of European Union public, and ultimately, private websites.     

Restoring Dignity and Harmony to United States-European Union Data Protection Regulation

Global data protection laws can be described, at best, as contradictory in philosophy and practice. The 2015 decision by the Court of Justice for the European Union declaring the mechanism for data transfer between the United States and European Union known as “Safe Harbor” invalid and the criticism of its replacement, Privacy Shield, is representative of the conflict in this area. Such contention often stems from the differences in privacy rationales and theories of the United States and European Union. This article examines the recent developments in data protection regulations, and makes the argument that issues such as data protection, and specifically data shared with intelligence agencies, should be analyzed through the privacy principle of dignity and that the law of confidentiality should be applied to data protection cases, thereby instilling more harmony into the data privacy approaches of the United States and the European Union.     

Dismantling or Strengthening Labour Law: The Case of the European Court of Justice

Abstract: The European Court of Justice is increasingly accused of dismantling labour law. The unusually sharp criticism is mainly motivated by four determining, though concealed reasons. First, the fact that many decisions address conflicts familiar to national law which are however largely repressed in the national context; second, the crisis of the national labour markets and the ensuing attempts to fence them off from the consequences of advancing integration; third, the inconsistent policies of a Union caught between the prevailing orientation towards a distinctly economic Community and the demands of a slowly progressing political Union; and fourth, the Union's difficulties to meet its own claims. As a result, the Court of Justice is more and more distracted from its judicial role and forced into a regulatory function. Hence, it is important to recall that a consistent integration process inevitably requires abandoning national regulations and creating a growing body of common rules intended to realise the common objectives. Further, the Union must more than ever attempt to correct its structural deficiencies and lay down fundamental rights, both in order to give direction to its regulatory interventions, and to limit them. Finally, the time has come for a clear specialisation of the European Court of Justice itself, as well as a systematic review of the conditions governing preliminary rulings, in order to avoid any further instrumen-talisation of the Court for the solution ofinternal conflicts of the Member States.