Strategic Lawsuits Against Public Participation: The British Columbia Experience

In 2001, the province of British Columbia (BC) became the first Canadian jurisdiction to enact anti-SLAPP legislation. While this legislation proved to be short lived, the BC experience around the issue of SLAPPs is instructive for law reformers both in Canada and beyond. In this article, the authors describe the legal and political processes that set the stage for the passage of the 2001 law, and its subsequent repeal. They also provide a detailed analysis and critique of key aspects of the debate surrounding the design of the law, and consider its efficacy in identifying, dismissing and deterring SLAPP lawsuits. They conclude with some observations with respect to the current status of the SLAPP issue in BC.     

Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs

In recent years, Strategic Lawsuits Against Public Participation (SLAPPs) have become well-recognized as challenging free speech and public participation in the USA, Canada and Australia. However, in Europe SLAPPs remain largely unrecognized with little consideration of their use and impact. This paper argues that SLAPPs are used in Europe and have been neglected for a number of reasons. In order to examine the European SLAPP situation, this paper focuses on libel law in England and Wales. It considers the debate on free speech that has flowed out of libel cases and concludes by reflecting on what advantages might flow from a refocusing of that debate that includes a recognition of SLAPPs.     

Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case

The tendency of English libel law to protect reputation at the expense of freedom of expression makes the United Kingdom a potentially attractive forum for retaliatory lawsuits against individuals and organizations who lobby or campaign against the interests of large companies. The most prominent recent example of such a lawsuit was the so-called 'McLibel' case, in which McDonald's Corporation sued protesters who had distributed anti-McDonald's leaflets outside some of the company's restaurants. The case is often cited as evidence that the risk of unfavourable publicity generated by retaliatory libel actions is a strong deterrent to using the libel laws to silence public opposition to corporate activities. This article uses a technique widely employed in financial economics research, the 'event study' method, to investigate whether the unanticipated bad publicity attracted by the McLibel case had a negative financial impact on McDonald's, such that future retaliatory lawsuits might be deterred.     

Voluntary Greenhouse Gas Reporting—Not an Option for Much Longer

Based on the worldwide movement toward climate change, voluntary reporting of greenhouse gases is something every business—large and small—should consider doing now. Reporting makes sound business sense and will become mandatory in the US within the next few years. It provides a competitive advantage, baseline protection, input to new regulations, and preparation for emissions trading.

This article suggests that corporate officers have a fiduciary duty to voluntarily report. Not reporting could cost their companies money, unnecessary time catching up, reputation damage, and potential lawsuits from shareholders who believe that the corporate officers knew or should have known to investigate the issue and react.     

浅析反垄断公益诉讼制度

传统诉讼法理论在“无利益即无诉权”的原则下,一般认为作为诉权要件的“诉的利益”是法院进行裁判的前提。因此,对于社会经济安全等社会公益,公民被认为不具有直接利害关系,其原告资格不被承认。然而,随着新型纠纷(垄断公害诉讼、环境纠纷、消费者公益诉讼等)的出现,公民便无法通过司法手段来维护这一公益。反垄断公益诉讼制度的出现,既是诉讼法对其自身只顾及保护私人利益的狭隘性突破,也是对传统诉讼法律制度的超越。     

论环境保护的公众参与

公众参与是我国环境法的一项重要原则。但是由于公众参与环保的法律机制没有较好地形成,使环境保护法的社会性大打折扣。从我国环境保护现状出发,借鉴外国环境法的有效制度,实现公众全方位参与环境保护,是立法的当务之急。     

WHO'S YOUR DADDY?: THE INHERENT UNFAIRNESS OF THE MARITAL PRESUMPTION FOR CHILDREN OF UNMARRIED PARENTS*

Many states have marital presumptions of legitimacy, which provide children born to married parents with protection against paternity lawsuits questioning their legitimacy. However, most states do not have legitimacy presumption statutes for unmarried couples. This lack of equality between married and unmarried couples makes it so that children born to unmarried parents, who have developed a psychological bond with a man they have always thought to be their father, are not afforded the same protection as other children in similar situations, simply because their parents were not married at the time of their birth. Therefore, this Note advocates for states to amend their paternity statutes to provide protection against nonpaternity lawsuits to psychological fathers and their psychological children. State statutes should provide a psychological father with the right to be declared the legal parent of his psychological child in cases where the child's legal father has been substantially absent from the child's life.     

SLAPPs: Intent or Content?Anti-SLAPP Legislation Goes International

Due to the increasing interest in adopting anti-SLAPP legislation outside of the USA (where it was first implemented), the definition of what constitutes a SLAPP is being questioned. Some commentators have advanced the suggestion that, in order to account for jurisdictional differences, outside of the USA it is the motivation to intimidate or chill public speech that is the aspect of a SLAPP on which anti-SLAPP legislation must focus. However, defining SLAPPs by the initiator's alleged intent to intimidate can render anti-SLAPP legislation, in any jurisdiction, ineffective. SLAPPs should be defined by the involvement of public participation, rather than by the intent of the SLAPP plaintiff. Effective anti-SLAPP legislation employs procedural protections that are engaged once a threshold demonstration has been made that the case involves protected public interest communications. Generally, this approach is appropriate to adopt in any jurisdiction where the legislature desires to protect public interest communications.     

Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time

Has federal antidiscrimination law been effective in moving women and minorities into management? Early studies show that government affirmative action reviews improved the numbers, and rank, of blacks, but evidence of what has happened since 1980 is sparse. There is little evidence that civil rights lawsuits improved the employment status of women or African Americans. We examine establishment‐level effects of compliance reviews and lawsuits on the percentage of women and blacks in management. We find that compliance reviews, which alter organizational routines, had stronger and more lasting effects than lawsuits, which create disincentives to discriminate. We also find that deregulation was more consequential for compliance reviews than for lawsuits: Compliance reviews initiated in the 1980s were less effective than those initiated in the 1970s. Not so for lawsuits. Compared to lawsuits, compliance reviews appear to have a greater capacity to elicit lasting organizational change, but their effects are mediated by the regulatory environment.     

民事公益诉讼的功能承担与程序设计

民事公益诉讼的原告资格问题不属于诉讼担当,而属于实体适格问题。为此,立法者应当在实体法律规范中赋予"法定机关和有关组织"具体的实体请求权。而且,为了避免金钱损害赔偿带来的证明与分配上的困难,以及保证有关组织的独立地位,我国民事公益诉讼的请求权内容未来应当限定在"非金钱损害赔偿请求权"之上;仅例外情形才允许通过民事公益诉讼的途径主张"没收不当收益"请求权并上缴基金,这对于纠正市场失灵亦具有重要意义。此外,为了实现高水准的公益保护,我国还有必要增设有关既判力扩张与禁止滥诉的规定。总体而言,民事公益诉讼承担着"预防保护与监督"的功能,其与任意的诉讼担当、代表人诉讼、债权让与等制度共同存在,并分别在实现不确定人群的集合利益、少量确定人群的个体权利、大量不确定人群的大规模损害赔偿请求权以及大量不确定人群的小额损害赔偿请求权等领域发挥作用。     

Does it pay to pollute? Shareholder wealth consequences of corporate environmental lawsuits

In this paper, we employ the event study methodology to examine shareholder wealth consequences of corporate environmental lawsuits filed in the US Circuit Courts from 1980 to 2001. We find that stocks of defendant firms experience significant negative abnormal returns around the lawsuit filing dates. When the plaintiffs are government entities, the abnormal returns of the defendant stocks are significantly negative. On the other hand, when the plaintiffs are individuals or nonpublic business entities, the abnormal returns are statistically insignificant. When lawsuits are filed under EPA's superfund statute, defendant firms experience significant loss in equity value. For shareholders of the average firm in our sample, the empirical evidence suggests that it does not pay to pollute if the firm is sued.     

Reform of lawsuit system and revision of filing conditions

Currently the Civil Procedure Law stipulates rather “high conditions” for lawsuits and the reason is that in the institutional design, we have equated the conditions of adjudicating the merits with those of lawsuits and the initiation of lawsuits. The trial of conditions of adjudicating the merits are usually conducted after the beginning of lawsuits, while in China it is carried out before the beginning of lawsuits, and thus the related procedures have become a kind of “pre-lawsuit procedures”, and theoretical and institutional confusions and contradictions arise. This article is of the opinion that filing conditions should be separated from those of adjudicating the merits, and the trial of the latter should be incorporated into the proceedings. A “dual” trial structure should be constructed, that is, the trial of conditions for adjudicating the merits goes parallel with that of merit disputes. In the attempt to improve civil procedures, attention should be given to the institutionalization of conditions of adjudicating the merits, which should be reasonably designed and integrated into relevant systems. When reforming the lawsuit system, we should also adjust the courts’ trial organs. We recommend not setting up any case-filing or appeal divisions and removing the existing “separation of case-filing and trial”. __________ Translated from Law Study, No. 6, 2004     

城市规划编制过程中的听证会设计

听证会是正式的公众参与城市规划编制方式。政府规划部门应作为听证会的一般发起主体和组织者,控制性详细规划地段内的利害关系人应作为特殊提起主体。听证事项应限于对社会公共利益有重大影响的事项,并适当将某些事项排除。对于不同的听证事项可采取不同的听证模式。听证参加人应分为居民代表和专家代表,合理设置人数比例。听证主持人可由同级人民代表大会中具有规划知识背景的工作人员担任,以确保其公正性;听证参加人享有陈述和质询的权利;听证会记录应作为城市规划编制和审批的必备参考。违反听证规则时应追究相关工作人员的责任,但一般不影响城市规划的整体效力,可以补听证和申请国家赔偿方式救济。     

论刑事诉讼中实体公正与程序公正之关系

程序公正近年来在我国法学理论界引起很大争论与探讨,就刑事诉讼中实体公正与程序公正之关系,各种观点百家争鸣,而该问题不仅为诉讼理论问题,且关系到诉讼中人权保障、诉讼模式等一系列实质内容,但有些提法抛开法律文化背景与法制现状,一味强调程序优先或过分坚持实体优先,有失偏颇。     

Incomplete antitrust laws and private actions for damages

Our purpose in this paper is to identify some of the implications that derive from the incompleteness of antitrust laws. Since with regard to certain anticompetitive conduct, the law remains substantially incomplete up to the first relevant court judgment, in terms of policy it is worth concentrating on stand-alone claimants who, not relying on earlier judgments, face very high evidentiary requirements, while generating large positive (information) externalities for potential follow-on claimants. The paper is structured as follows. In Sect. 2, we introduce the notion of incompleteness of the laws and address the process of production of evidence in antitrust lawsuits. Sect. 3 provides a survey of EU national case law and our summary of the results puts emphasis on incomplete laws, evidentiary requirements and stand-alone lawsuits. Sect. 4 presents a framework model to distinguish the decision-making processes for stand-alone and follow-on claimants in the presence of incomplete antitrust laws. In Sect. 5 we introduce a vector autoregressive model that we test with reference to the US antitrust law enforcement regime. Sect. 6 discusses some policy options and concludes the paper.     

关于服务相对人公共服务程序参与权研究

建设服务型政府必须考虑保障服务相对人能够有效参与到程序之中。服务相对人公共服务程序参与权具有重要功能,在确定服务相对人公共服务程序参与权时,准确把握服务相对人的范围以及程序参与权的内容具有重要意义。当前,应该通过多种途径为服务相对人实现公共服务程序参与权提供法律保障。     

论个人信息保护的行政规制路径

个人信息保护存在私法诉讼与行政规制两种主要路径,私法诉讼多以侵权之诉的形式展开。由于个人信息处理者与信息主体的地位失衡,信息主体举证困难,维权难度高;由于损害难以界定,诉讼存在成本与收益不均衡的激励困境;同时,个别性的诉讼也难以有效回应系统性的社会风险。行政规制路径以基本权利的国家保护义务作为法权基础,在专业性、信息充分程度、治理效率等方面具有比较优势。个人信息保护立法应当更妥善地处理两种路径的协调。未来个人信息保护的行政规制路径需要进一步明确规制体制,充分运用行政处罚、自我规制、内部管理型规制、第三方规制等多元化的规制机制。     

Minimizing employee benefits litigation through effective claims administration procedures

With the marked increase in employee benefits litigation, employers and benefit plan sponsors are searching for ways to avoid such lawsuits, minimize their exposure in such lawsuits, and maximize their ability of prevailing in such lawsuits. Benefit claim processing and administration have become fertile areas for lawsuits. Consequently, improving benefit claim processing and administration obviously becomes important, and an area where affirmative actions by the employer and plan sponsor will produce many litigation-related benefits. This article will discuss, in a very simple and straightforward manner, various actions an employer or plan sponsor can take which will decrease the number of lawsuits, minimize the potential exposure if a lawsuit is filed, and maximize the ability of prevailing if a lawsuit is filed.     

美国对外国国家的送达制度

美国《外国主权豁免法》明确规定了对外国国家的送达程序,以区别于《联邦民事诉讼法》中的送达程序。这些特殊的送达规则以及送达实践强调被送达的外国国家实际接收和接受送达的效果,更加注重程序公正,在某种程度上给予外国国家更多的正当程序保障,增强审判程序和判决的可接受性,减少或避免国家豁免诉讼可能带来的政治风险。中国应对在美国法院被诉时,应当充分利用美国《外国主权豁免法》中的送达规则和实践,更好地维护我国的尊严和主权。     

公立高等学校性质的行政法透视

近些年发生的以高校为被告的案件层出不穷,但司法机关应当以何种立场来解决涉高校的诉讼案件却缺乏统一标准,究其根本原因乃在于对高等学校性质是什么或者应当是什么没有足够的认识。事实上,无论是将公立高等学校定位于一般的事业单位,还是行政法意义上的法律法规授权的组织抑或第三部门,都难以自恰地解释高等学校在实践中存在的多重身份以及由此产生的多重法律关系和法律纠纷,但如果将其定位于公务法人则可以在某种程度上克服上述缺陷。