从搭售构成到市场的关联性──对德先诉索尼案的思考

德先诉索尼案被认为是国内第一起以非法垄断为案由的案件,具有理论探讨的重要意义,此案在实体认定上并不能笼统地认为索尼公司实施了非法的搭售。因为索尼公司在数码相机的设备市场上并不具备市场支配地位,同时在产品的销售中不具备搭售的"单一产品"构成要件,因此在销售设备时不成立数码产品和电池的非法搭售。但是,由于设备市场和售后市场的关联性,设备市场的竞争在售后市场是专有市场时无法影响厂商对于售后产品的定价,从而构成对索尼产品的售后市场的垄断地位,并在售后市场上构成搭售。同时,在数码相机市场快速发展,设备产品未来销售的贴现价值偏小的激励下,厂商有足够的动力对售后产品制定高价格,扭曲竞争。因此,在这一意义上,索尼公司的行为构成反垄断法意义上的非法搭售。     

Polygraphs: Erosion of the privacy right

The polygraph is a machine which invades previously private regions in the human being. Its operation is often viewed simplistically and lacking in danger. Such naivete is the subject of this comment. The paper considers the mechanics of polygraph operation, and its theoretical basis; the legal admissibility of the polygraph in a variety of settings, and lastly the impact the polygraph has upon our private lives.Clearly, the polygraph intrudes on the private regions of each individual, and this frightening fact is cause enough to consider the human, social and constitutional implications of its use. The project considers the reliability factor of the polygraph and its questionable use in personnel and business settings; its use in disciplinary procedures and labor arbitration, as well as reviews its place in judicial process and criminal review.Most critically the paper attempts to arrive at a constitutional basis for restrictions on its use in the private sector. Ingenious arguments have been made by opponents of the polygraph, and this paper reviews the substance and content of these constitutional arguments.     

Schedules of controlled substances: rescheduling of buprenorphine from schedule V to schedule III. Final rule

This final rule is issued by the Deputy Administrator of the Drug Enforcement Administration (DEA) to reschedule buprenorphine from a Schedule V narcotic to a Schedule III narcotic under the Controlled Substances Act (CSA). This action is based on a rescheduling recommendation by the Department of Health and Human Services (DHHS) and a DEA review indicating that buprenorphine meets the criteria of a Schedule III narcotic. The DEA published a proposed rule to reschedule buprenorphine on March 21, 2002 (67 FR 13114). The comment period was extended for an additional 30 days until May 22, 2002 (67 FR 20072). The DEA received ten comments but no requests for hearings. This final action will impose the regulatory controls and criminal sanctions of a Schedule III narcotic on those persons who handle buprenorphine or products containing buprenorphine     

Keegstra and R.A.V.: A Comparative Analysis of the Canadian and U.S. Approaches to Hate Speech Legislation

This article argues that the similarities and differences in the approaches and outcomes of the Canadian and United States cases on hate speech are reflective of the similarities and differences in two basic worldviews-communitarianism and liberalism. The article briefly explores the two views, sets out the Keegstra and R.A.V. cases and concludes that the approach in Keegstra reflects a communitarian philosophy while the approach in R.A.V. reflects the liberal philosophical position.     

UNITED STATES V. MICROSOFT: DID CONSUMERS WIN?

United States v. Microsoft and the related state suit filedin 1998 appear to have concluded. In a unanimous en banc decisionissued in late June 2004, the U.S. Court of Appeals for theD.C. Circuit rejected challenges to the remedies specified ina settlement reached in late 2001 and approved by the districtcourt in November 2002. We examine the remedies imposed in theUnited States, in terms of both their relationship to the violationsfound and their impact on consumer welfare. We conclude thatthe remedies addressed the violations ultimately found by theCourt of Appeals (which were a subset of those found by theoriginal district court and an even smaller subset of the violationsalleged, both in court and in public discourse) and went beyondthem in important ways. The remedies imposed appear to havestruck a reasonable balance between protecting consumers againstthe types of actions found illegal, on the one hand, and, onthe other hand, avoiding excessive restrictions that would harmconsumers by restricting Microsoft's ability to compete in pro-competitiveways.     

T.V. crooks: Implications of latent role models for theories of delinquency

Reviewing the literature on the effect of television viewing on behavior, the authors suggest that if indeed the content of television programs can encourage antisocial behavior in some groups of viewers, the image of crime and characteristics of criminal actors presented on television may play an important role in the adoption of criminal behavior by lower-class adolescents. Data are presented that indicate the variance between the view of crime presented by the television media and that found in official statistics. The implications of this discrepancy for models of delinquency are discussed.     

Facebook Threats: the Missed Opportunities of Elonis V. United States

When the Supreme Court of the United States reversed the conviction of a man who posted vile, threatening messages on Facebook, it concluded that the federal law used to prosecute him lacked the necessary level of intent. In effect, the Court stopped there, saying it was “not necessary to consider any First Amendment issues.” In considering the Court's adoption of judicial minimalism in Elonis v. United States, this article suggests that, even within that framework, there existed chances to explore relevant issues. This included advancing a better understanding of the seriousness of cyber threats. In spite of embracing the importance of context in evaluating this and other cases, the Court rejected the opportunity to provide important perspective. Proscribing true threats does not compromise free speech values; it enhances them. The ideas of free speech and civilized speech can coexist.,     

Institutional Arrangements and the Dynamics of Agenda Formation in the U.S. Supreme Court and Courts of Appeals

The manner in which agenda change occurs demonstrates how institutional arrangements influence agenda priorities in the Supreme Court and Courts of Appeals. A neo-institutional theoretic perspective is employed to examine the dynamics of agenda formation in these courts. The article finds that the Supreme Court's agenda choices influence the decisions of litigants, interest groups, and lawyers to appeal certain cases to the Courts of Appeals. While the Supreme Court's agenda primarily is influenced by internal factors, it is constrained by agenda changes in the appeals courts. Critically, it is shown that these federal appellate courts exist within an endogenous system with respect to agenda formation, as both courts respond to agenda changes made in the other over time.     

Review of A. V. Obolonskii and V. D. Rudashevskii's the Methodology of Systems Research on Problems of State Administration

The monograph under review is devoted essentially to general questions of the systems approach and systems methodology and to their interpretation with respect to the field of state administration. In this area the authors have arrived at some new findings of scholarly and practical interest. But the main feature of the book is its bringing the general principles of the systems approach to a level of concreteness at which its effective application at the level of a branch of state administration is possible. There are as yet few similar studies in Soviet legal literature.