Criticizing the image of the student as consumer: examining legal trends and administrative responses in the US and UK1

There is widespread concern that higher education is being compromised by being turned into a ‘commodity’ to be ‘consumed’. This article represents an initial attempt to explore the trends in both the UK and US, and considers how the law has responded to them. It argues, however, that there is an important distinction to be drawn between ‘commodification’ and ‘consumerism’. Education has always been a commodity to be bought and sold; the true danger lies in the move to a ‘rights-based’ culture where students (and politicians) see education merely as something to be ‘consumed’ rather than as an activity in which to participate. Whilst the law seems thus far to have been something of a bulwark against this movement, it remains an open question as to whether this will continue to be the case if HEIs do not themselves act more proactively in challenging this damaging view of higher education.     

RICO: The genesis of an idea

In 1970, the Congress enacted the Organized Crime Control Act. Title IX of the 1970 Act is the Racketeer Influence and Corrupt Organization Act or RICO. This Act had its origins in legislation going back as far as 1934, but coming forward to 1961. The 1970 Act borrowed ideas from this earlier legislation, principally “enterprise,” but also the use predicate statutes to define “racketeering activity.” The ideas are not new, but their combination affects how prosecutors and law enforcement agents investigate, try, and sanction violations of the Act. RICO’s drafting also reflects organizational theory and economic analysis. The investigation and prosecution of a single crime committed by an individual on a single day and in a single place maybe done using one set of procedural and evidentiary rules. Nevertheless, the investigation and prosecution of patterns of diverse offenses committed by, through, and against licit and illicit enterprises require sophisticated procedures, evidentiary rules, and criminal sanctions. In addition, antisocial conduct is more than a challenge to the administration of criminal justice; it also requires the full panoply of civil sanctions, including public injunctions as well private enforcement of injunctive relief and treble damages. RICO has had a profound effect on the prosecution of organized crime, white-collar crime, and other forms of similar criminal behavior. William J. & Dorothy K. O’Neill Professor of Law, Notre Dame Law School; A.B. 1957, University of Notre Dame; J.D. 1960, Notre Dame Law School. Professor Blakey was the Chief Counsel of the Subcommittee on Criminal Laws and Procedures of the United States Senate Committee on the Judiciary in 1969-70 when the Organized Crime Control Act of 1970, Pub. L. No. 91-542, 84 Stat. 922 (1970) was processed, Title IX of which is the Racketeer Influence and Corrupt Organization Act or RICO. For a general treatment of the statute from a variety of perceptive, see the collection of law review literature in G. Robert Blakey & Kevin Roddy, “Reflections on Reves v. Ernst & Young: Its Meaning an Impact on Substantive, Accessory, Aiding, Abetting and Conspiracy Liability under RICO,” 33 Amer. Crim. L. Rev. 1345, 1348 n. 3(1996).     

Managing commercial risks in open source software licensing

Legal context: The article reviews the commercial risk allocation clauses intypical open source licence terms and discusses their enforceabilityand implications. Key points: The enforceability of warranty disclaimers and limitation ofliability clauses in common open source licence terms is questionable,particularly in a cross-border context, and commercial licensorsshould take additional steps to protect themselves from down-streamrisks. Practical significance: Open source software presents a number of unusual commercialissues, because it is available free of charge and the providerstry to disclaim warranties and liabilities. End users and resellershave to adjust their own in- and out-licensing models to accommodatethis situation.     

Environmental dispute resolution and hazardous waste cleanups: A cautionary tale of policy implementation

New York State experimented with replacing their litigation-oriented system for achieving toxic dump site cleanup with one promising to lower transaction costs through alternative dispute resolution. Our analysis of outcomes is informed by three generations of implementation work focusing on (1) the motivations and incentives shaping individual behavior, (2) the larger organizational and political factors associated with variation across cases, and (3) the generic properties of policy implements. This mosaic approach to explanation produces, we believe, a more lifelike picture of use to policy makers for understanding the dynamic and interrelated nature of their choices.