Suppliers to a sellers’ cartel and the boundaries of the right to damages in U.S. versus EU competition law

While customer damage claims against price-cartels receive much attention, it is unresolved to what extent other groups that are negatively affected may claim compensation. This paper focuses on probably the most important one, suppliers to a downstream sellers’ cartel. The paper first identifies three economic effects that determine whether suppliers suffer losses due to a cartel by their customers. We then examine whether suppliers are entitled to claim net losses as damages in the U.S. and the EU, with exemplary looks at England and Germany, delineating the boundaries of the right to damages in the two leading competition law jurisdictions. We find that, while the majority view in the U.S. denies standing, the emerging position in the EU approves of cartel supplier damage claims. We show that this is consistent with the ECJ case law and in line with the new EU Damages Directive. From a comparative law and economics perspective, we argue that more generous supplier standing in the EU compared to the U.S. is justified in view of the different institutional context and the goals assigned to the right to damages in the EU. We demonstrate that supplier damage claims are also practically viable by showing how supplier damages can be estimated econometrically.     

Profiling,Information Collection and the Value of Rights Argument

In the United States and elsewhere, there is substantial controversy regarding the use of race and ethnicity by police in determining whom to stop, question, and investigate in relation to crime and security issues. In the ethics literature, the debate about profiling largely focuses on the nature of profiling and when (if ever) profiling is morally justifiable. This essay addresses the related, but distinct, issue of whether states have a duty to collect information about the race and ethnicity of persons stopped by police. I argue that states in the U.S. do have such a duty on the grounds that such information collection would help secure the value of persons' human rights against discrimination and unfair policing. Nonetheless, a large number of states do not require it. I begin by distinguishing rights from the value of rights, and arguing that under certain conditions persons have claims to the value of rights themselves, and that states have duties to secure that value. I then turn to the issue of profiling and offer the value of rights argument in favor of information collection about the race and ethnicity of persons stopped by police.     

Flooding the Permafrost: The Role of Environmental Claims in the Effort to Regulate Global Warming Emissions

This article focuses on the role that public and private claims play in spurring, supporting, supplementing, and, at times, impeding, climate change initiatives. Sections 1 and 2 describe the essential features of greenhouse gases and briefly detail the history of federal initiatives and the collapse of will that precipitated many of the claims filed by states, municipalities, and environmental groups. Section 3 discusses plaintiffs' early challenges and efforts to compel regulatory action; nuisance actions that have been filed by states, public interest groups, and individuals; and the possible trajectory of future claims. Section 4 discusses the role of climate change claims in enforcing compliance, improving corporate responsibility, and promoting interorganizational benchmarking in governmental and market-based standards programs. Section 5 concludes with a discussion of the precautionary principle and ways in which companies can protect themselves against future climate change-related claims.     

将有债权处分的法律构造与顺位安排

在处分情形,将有债权是处分人尚未取得的债权,包括绝对将有债权与相对将有债权。绝对将有债权有广义和狭义之分,区分标准在于基础法律关系是否存在。将有债权处分是现有债权处分之变体,属于一种预先处分。将有债权处分涉及基础合同有效、公示预先完成、客体预先特定、债权可让与性四要件。将有应收账款质押应当登记,将有应收账款让与本身虽与公示无涉,但登记和预先通知会直接影响顺位关系。将有债权的描述应足够清晰,第三人能够据此合理识别所涉债权。将有债权处分具有自动取得效果和即时取得效果。在处分人取得债权时,处分自此时自动生效。将有债权的多重处分首需适用"登记最优—通知次优—比例分配"规则,补充适用"处分在前,顺位优先"规则。同一将有债权被处分和被代位执行的,应适用"完成在前,顺位优先"规则。将有债权处分欠缺破产保护效果,处分人在破产后取得的债权归属破产财产。     

‘Couldn't You Have Got a Computer Program to Do That for You?’ Reflections on the Impact that Machines Have on the Ways We Think About and Undertake Qualitative Research in the Socio-Legal Community

This article addresses the role that computer software programs play in the sort of textual analysis that has typically been the preserve of the qualitative researcher. Drawing on two distinct research projects conducted separately by the authors, it considers the transformation of social science software from a competent assistant that can help to sort and retrieve data, to an intelligent assistant capable of independently finding trends and counter-arguments, to a co-investigator capable of doing things that human researchers cannot. In addition to challenging some of the claims of ‘siliconistas’, this article considers the impact of new technology on the aesthetics of research and the professional identity of qualitative researchers. In doing so, it raises some important questions about how well we are training early-career academics for the challenges that they are likely to face in the future world of socio-legal empirical research.     

Facing the Consequences

Many philosophers endorse deterrence justifications of legal punishment. According to these justifications, punishment is justified at least in part because it deters offenses. These justifications rely on empirical assumptions, e.g., that non-punitive enforcement can’t deter or that it can’t deter enough. I’ll challenge these assumptions and argue that extant deterrence justifications of legal punishment fail. I begin by isolating, in a simplified form, important claims common to deterrence justifications. I then endorse an uncontroversial claim about punishment and explore its implications for enforcement. These implications undermine the simple versions of the deterrence claims. I then evaluate several modifications of the claims to see whether they can be improved upon. I argue that they can’t easily be improved upon. In the process, I examine contemporary deterrence research and argue that it provides no support for deterrence justifications. I conclude by considering objections.     

Working with law students to develop legal literacy materials

This paper sets out the findings of a teaching development project undertaken with undergraduate law students at the University of Leicester (UOL) in 2013–2014, funded by the Higher Education Academy (HEA). In the course of this project, students were actively involved in the design, development and delivery of five interactive workshops for primary school children, each built around a particular theme and each designed to help develop an aspect of the children’s legal literacy. The aims were to assess the impact on the learning experience of student participants; to assess whether it may be possible to incorporate this form of activity within the undergraduate curriculum and to assess whether it may be possible to create a sustainable model for use in the future, with new groups of students and a wider number of schools. The most positive outcomes of the project relate to the students’ self-reporting of the development of transferable skills and their reported increase in self-confidence, as a result of being involved in the project. The role of group work in the development of transferable skills is also evident. By far the weakest area was the demonstration and development of legal research skills. The authors reflect on these findings, and comment on some of the unforeseen benefits and challenges of the project, before drawing conclusions as to its future viability.     

Alexy on Necessity in Law and Morals*

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.     

Shoemaker on Sentiments and Quality of Will

In this comment, I raise a number of concerns about David Shoemaker’s adoption of the quality of will approach in his recent book, Responsibility from the Margins. I am not sure that the quality of will approach is given an adequate grounding that defends it against alternative models of moral responsibility; and it is unclear what the argument is for Shoemaker’s tripartite version of the quality of will approach. One possibility that might fit with Shoemaker’s text is that the tripartite model is meant to be grounded in empirical claims about the structure of encapsulated emotions; but I argue that those empirical claims are not made out, and that regardless it is doubtful whether this is the most helpful model of the emotions to deploy in this context. In contrast, I propose that the quality of will approach is better defended in ethical terms, by reference to the vision of the value of living together as equals (in some sense) that is embodied in P.F. Strawson’s picture of the engaged attitude, and the emotions involved in it.     

Legal Truths and Falsities*

This paper has a two‐pronged thesis. First, laws should be understood as making factual claims about the moral order. Second, the truth or falsity of these claims depends as much on the content of the law as on whether the lawmaker has political authority. In particular, laws produced by legitimate authorities are successful as laws when they guide subjects' behavior by giving subjects authoritative reasons for action. This paper argues that laws produced by legitimate authorities accomplish this task (i) by being on their own sufficient to change the moral state of affairs, which (ii) thereby generates for people new moral reasons to act that they can read right off of the legislation.     

Looking Back and Forward on Asbestos Claims

There have been many developments in the asbestos claims arena. Asbestos costs have been affected by a number of important developments in the past two years, and it is expected that activity level will be high this year. Particularly significant in 2014 was the Garlock case, which set a precedent for increased transparency of relevant facts in asbestos litigation. In addition, there are legislative activities at the federal and state levels that include increasing transparency. This article focuses on trends in asbestos litigation, and highlights that there are environmental insurance products available for new exposure to asbestos.     

The Horizons of the Constitution: <Emphasis Type="Italic">Politeia</Emphasis>, the Political Regime and the Good

How do we think about the word politeia when this involves a reaching back to the past? The response, pursued in this paper, is that in the classical understanding of politeia there is a significant connection between the question of the ‘good’ and the constitution; a connection which has become occluded or obscured by modern constitutional thought. In support of this understanding of politeia it must be acknowledged that what is meant, in this paper, by ‘good’ is very different from that conventionally found in contemporary constitutional, legal or political theory. In an effort to disclose how politeia unravels this novel sense of ‘the good’ the paper will closely consider the philosophical work of Hans-Georg Gadamer on Plato. The paper claims that this largely neglected work is of importance to contemporary constitutional philosophy, particularly in so far as it focuses, as in this paper, on classical traditions or origins within constitutional thought.     

论在我国援用海事赔偿责任限制的性质及其影响

目前 ,我国理论界对援用海事赔偿责任限制的行为是否为诉还存在颇多争议 ,基于此 ,本文通过对其他国家海事赔偿责任限制的适用程序的比较 ,在立足于我国《海事诉讼特别程序法》的基础上 ,分析在我国船舶所有人等援用海事赔偿责任限制的性质以及由此产生的影响 ,以期明确相关的理论和实践问题。     

National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC

The national implementation of the International Criminal Court(ICC) Statute has proven to be more difficult than initiallyanticipated. Most States Parties have either not incorporatedthe ICC crimes into their domestic laws, or they have done sousing different forms of wording. This article examines theimplementing legislation of several states to demonstrate howinadequate implementation of the ICC crimes might prevent statesfrom exercising their primary jurisdiction in criminal proceedings.In turn, this might affect the admissibility of a case beforethe ICC. To this end, this article also explores whether flawedimplementation of the ICC crimes amounts to unwillingness orinability of the state to genuinely prosecute. This articleargues that implementation of the Statute is of paramount importanceto the future of the ICC.     

Blind Spots: The Effects of Information and Stakes on Fairness Bias and Dispersion

Mounting empirical research provides evidence of fairness bias and its economic and social effects, where fairness bias refers here to a deviation of claims from unbiased justice due to a personal stake. A far less appreciated issue is dispersion of fairness views and claims, which is also important for its effects on disagreements, empirical analysis, and philosophical theories. This study undertakes a systematic analysis of the effects on fairness bias and dispersion of two variables: stakes and information. Most philosophical and social science analyses related to justice and bias associate heightened bias with increased information and, conversely, impartiality with the elimination of certain information. Less attention has been paid to the opposing impact of information, which is to supply the facts needed to achieve justice more reliably. An important open question is whether, on balance, increased information helps agents to achieve fairer outcomes or whether biased use of such information contributes to less fair outcomes. This study focuses on a set of previously reported experiments that share certain features and subjects them to a new analysis. The results of this analysis suggest that, although information is often used in a self-serving way, increased information can, under certain conditions, contribute to fairness claims becoming less biased and less dispersed, both for stakeholders as well as impartial spectators.     

Legal Rights and the Limits of Conceptual Analysis: A Case Study

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions.     

Personal and Political Reconciliation in Post-Genocide Rwanda

The majority of scholarly research on Rwanda currently focuses on determining the causes of and participation in the genocide. In this paper, we explore a variety of questions that have come to the forefront in post-genocide Rwanda. In particular, we are concerned with the prospects for peace and justice in the aftermath of the gross abuses of human rights that occurred and, to that end, we consider the potential uses and limits of restorative justice initiatives in the process of healing and reconciliation in Rwanda. We argue that restorative justice initiatives have moved the country closer toward reconciliation than retributive measures, such as the International Criminal Tribunal for Rwanda. That said, we also suggest that the Rwandan government, despite claims that it seeks to achieve reconciliation, has not shown a serious commitment to healing the wounds that persist between either individual Rwandans or the groups that they comprise. In the end, then, we make a case for the importance of pairing a comprehensive search for justice in Rwanda with a commitment to truth-telling and accountability by the victims and perpetrators of the genocide, as well as by current government officials.     

Genetic citizenship: DNA testing and the Israeli Law of Return

The Israeli State recently announced that it may begin to use genetic tests to determine whether potential immigrants are Jewish or not. This development would demand a rethinking of Israeli law on the issue of the definition of Jewishness. In this article, we discuss the historical and legal context of secular and religious definitions of Jewishness and rights to immigration in the State of Israel. We give a brief overview of different ways in which genes have been regarded as Jewish, and we discuss the relationship between this new use of genetics and the society with which it is co-produced. In conclusion, we raise several questions about future potential impacts of Jewish genetics on Israeli law and society.     

Understanding judicial discretion

The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of judges. In this context, the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions.     

合同无效时建设工程优先受偿权的教义学探析

由于对《合同法》第286条及相关司法解释的理解不同,司法实践中对合同无效时施工单位能否主张建设工程优先受偿权存在争议。作为对债权平等性的法定突破,建设工程优先受偿权必须具备充足的正当性基础;同时,出于对其他债权人利益衡平之考虑,必须严格限制可以优先受偿的债权的范围。合同无效体现了法律的否定性评价,相关司法解释不具有赋予特定情况下的无效施工合同以有效合同效果的正当性,因此产生的债权不应具有优先受偿之效力。