Reform des Schadensersatzrechts

Der im Jahre 2005 vorgelegte Entwurf zur Reform des Schadensersatzrechts (Griss, JBl 2005, 273) hat eine hoch kontroverse Diskussion ausgel?st. Dies ist an sich zu begrü?en, denn die kritische überprüfung konkurrierender Standpunkte und L?sungen im Rahmen offener Auseinandersetzung ist der N?hrboden für rechtswissenschaftliche Erkenntnis und rechtspolitischen Fortschritt. Im konkreten Fall beschleicht den neutralen Beobachter jedoch mitunter der Eindruck, die Konfrontation erfolge aus purer Lust am Konflikt und verschütte damit die weiterführende Debatte zur Sache. Die folgenden überlegungen dienen dem Ziel, die inhaltlichen Weichenstellungen des Entwurfs vor dem Hintergrund des geltenden Rechts und der europ?ischen Entwicklungen unvoreingenommen zu würdigen.     

Besprechungen

Ohne Zusammenfassung     

Die Anlage-Umwelt-Debatte: Alte Konzepte und neue Einsichten

In this article the question is considered whether and to what extent human behavior and personality are innate or learnt. For that reason the biologically orientated research on behavior and American Behaviorism are compared and criticized. The dualism between those two theoretical approaches is resolved in the modern developmental and personality-psychological disposition-environment debate. Human behavior is neither solely biologically determined nor fully learnt. The narrow interconnection of genetic disposition, early formative influences before and immediately after birth and societal influences is illustrated in detail using aggressive and violent behavior as an example. It becomes clear that the human brain is a social organ which awaits social influences in a particular way and personality is accordingly formed.     

Application of likelihood ratios for firearm and toolmark analysis

Historically firearm and toolmark examiners have rendered categorical or inconclusive opinions and eschewed probabilistic ones, especially in the United States. We suggest this practice may no longer be necessary or desirable, and outline an alternative approach that is within a comprehensive logical/Bayesian paradigm. Hypothetical forensic and non-forensic examples are provided for readers who are practicing firearm and toolmark examiners, and the strengths and weaknesses of both approaches are considered.     

Analysis of biofluids for flunitrazepam and metabolites by electrospray liquid chromatography/mass spectrometry

A rapid and sensitive liquid chromatography/electrospray ionization mass spectrometry (LC/MS) procedure has been developed for the analysis of biofluids containing flunitrazepam and its metabolites. Specimens were spiked with deuterated analogs of the analytes. Urine specimens were enzymatically hydrolyzed and blood specimens were untreated. Extractions were carried out using CleanScreen DAU SPE cartridges. The drugs were separated on a C18 column using a methanol-water-ammonium hydroxide (60:40: 0.03 v/v) mobile phase. After determination of base peaks using full scan mass spectrometry, the mass spectrometry method was optimized to operate in selected-ion monitoring (SIM) mode for the base peak of each analyte. Positive findings were confirmed by LC/MS/MS using the same mobile phase and column. This analytical procedure allows for the detection of low levels of flunitrazepam and metabolites in biofluids. It is useful for ascertaining the role of flunitrazepam in cases of drug-facilitated sexual assault.     

Older workers' progression from private disability benefits to Social Security disability benefits

People with medical conditions that limit their ability to work tend to receive short-term disability benefits initially and may then move to long-term and eventually to permanent disability benefits. The progression of older workers (those aged 55 to 64) along that continuum of benefits is documented here with data from a large disability insurance company. The data show that older workers who receive short-term medical disability benefits are three times as likely as younger workers to progress to receipt of Social Security Disability Insurance (SSDI) benefits, although a slight reversal of that trend occurs as workers pass age 62. Musculoskeletal conditions are the most frequent basis of short-term disability claims among older workers, with circulatory conditions running a close second. Furthermore, although all medical conditions are more likely to lead to SSDI benefits among older workers, circulatory conditions do so most frequently. This article discusses industry standards for the management of disability claims at each level of severity. It also addresses common and emerging disability management practices that may reduce the likelihood of impaired workers developing long-term or permanent financial dependence on disability benefits programs.     

Dagher redux: searching for the missing pieces

The most relevant question for any joint venture is, when does the relationship become a jointventure and not simply a price-fixing cartel? With respect to this question, this Article juxtaposes Texaco, Inc. v. Dagher, 126 S. Ct. 1276 (2006), against years of contrary precedent. In Dagher, the Court altered the seemingly settled foundation of antitrust law by changing its view on past holdings and abandoning the ancillary effects doctrine. The Article provides an outline of key holdings prior to Dagher, as well as a discussion of the issues that can arise as joint ventures are formed. Additionally, the authors examine how the decision altered the foundation of joint venture law in the United States. In particular, the Article exposes several important antitrust concerns relating to joint ventures that the Supreme Court did not address in Dagher. Perhaps the most perplexing issue of Dagher is whether the venture at issue would have survived analysis under the Federal Trade Commission's "continuum" approach.