UNITED STATES COURTS AND THE OPTIMAL DETERRENCE OF INTERNATIONAL CARTELS: A WELFARIST PERSPECTIVE ON EMPAGRAN

E. Hoffmann–La Roche Ltd. v. Empagran S.A. concerned aprivate antitrust suit for damages against a global vitaminscartel. The central issue in the litigation was whether foreignplaintiffs injured by the cartel's conduct abroad could bringsuit in U.S. court, an issue that was ultimately resolved inthe negative. We take a welfarist perspective on this issueand inquire whether optimal deterrence requires U.S. courtsto take subject matter jurisdiction under U.S. law for claimssuch as those in Empagran. Our analysis considers, in particular,the arguments of various economist amici in favor of jurisdictionand arguments of the U.S. and foreign government amici againstjurisdiction. We explain why the issue is difficult to resolve,and identify several economic concerns that the amici donot address, which may counsel against jurisdiction. We alsoanalyze the legal standard enunciated by the Supreme Court andapplied on remand by the D.C. Circuit, and we argue that itsfocus on "independent" harms and "proximate" causation is problematicand does not provide an adequate economic foundation for resolvingthe underlying legal issues.     

Relationship between blood and urine alcohol concentrations in apprehended drivers who claimed consumption of alcohol after driving with and without supporting evidence

For various reasons, many people suspected of driving under the influence of alcohol (DUIA) are not apprehended sitting behind the wheel, but some time after the driving. This gives them the opportunity to claim they drank alcohol after the time of driving or after they were involved in a road-traffic crash. Alleged post-offence drinking is not easy for the prosecution to disprove, which often means that the DUIA charge is dropped or the person is acquitted if the case goes to trial. The routine practice of sampling and measuring the concentration of alcohol in blood (BAC) and urine (UAC) and calculating urine/blood ratios (UAC/BAC) and the changes in UAC between two successive voids furnishes useful information to support or challenge alleged drinking after driving. We present here a retrospective case series of DUIA offenders (N = 40) in half of which there was supporting evidence of an after-drink (eye witness or police reports) and in the other half no such evidence existed apart from the suspect's admission. When there was supporting evidence of an after-drink, the UAC/BAC ratio for the first void was close to or less than unity (mean 1.04, median 1.08, range 0.54–1.21) and the UAC increased by 0.21 g/L (range 0.02–0.57) between the two voids. Without any supporting evidence of post-offence drinking the mean UAC/BAC ratio was 1.46 (range 1.35–1.93) for the first void, verifying that absorption and distribution of alcohol in all body fluids and tissues was complete. In these cases, the UAC between successive voids decreased by 0.25 g/L on average (range 0.10–0.49), indicating the post-absorptive phase of the BAC curve. Long experience from investigating claims of post-offence drinking leads us to conclude that in the vast majority of cases this lacks any substance and is simply a last resort by DUIA offenders to evade justice. Unless supporting evidence exists (eye witness, police reports, etc.) of post-offence drinking the courts are encouraged to ignore this defence argument.     

De Novo Advanced Adult‐Onset Offending: New Evidence from a Population of Federal Correctional Clients

Adult antisocial behavior is almost always predated by delinquency during childhood or adolescence; however, there is also evidence of adult‐onset criminal offending. This study examined this controversial subgroup of offenders using self‐reported and official data from a total population of federal correctional clients selected from the Midwestern United States. Difference of means t‐tests, chi‐square tests, and logistic regression models found that 11.7% of clients had an adult onset of offending and 2.7% of clients (n = 23) had an onset occurring at age 60 years or older. This group—introduced as de novo advanced adult‐onset offenders—had high socioeconomic status, mixed evidence of adverse childhood experiences, and virtually no usage of drugs with the exception of alcohol. These offenders were primarily convicted of social security and white‐collar crimes and evinced remarkably low psychopathology and criminal risk. More research is needed to replicate the phenomenon of de novo advanced adult‐onset offending.     

The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor

This note considers the radical significance of Supreme Court's judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that the decision marks the coming of age of the ‘common law constitution at work’. The radical potential of UNISON lies in its generation of horizontal legal effects in disputes between private parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the lens of UNISON and common law fundamental rights. The note identifies the various ways in which the common law tests of employment status might be ‘constitutionalised’ in the light of UNISON.     

Quality of low secure services in the UK: development and use of the Quality of Environment In Low Secure Services (QELS) checklist

Low secure services provide care for psychiatric patients whose risk cannot be safely managed in other settings. The physical environment in these units plays an important role in supporting recovery and risk management. We developed the Quality of Environment in Low secure Services (QELS) checklist to assess the quality of the physical environment of these services. Using recommendations from previously published standards we piloted a draft checklist with a weighted scoring system reflecting the views of patients and providers. The checklist showed good criterion validity and inter-rater reliability. Data collected from 33 low secure services showed considerable variation in the quality of the physical environment. The QELS checklist provides an accessible and reliable means for managers and clinicians to assess whether the quality of the physical environment of low secure units meets recommended standards and can be used to support efforts to improve the quality of care delivered by these services.     

Perceived altruism: a neglected factor in initial intervention

Perceived altruism, an attitude that clients may attribute to those who work with them, was examined in a qualitative and quantitative study about the impact of volunteers in drop-in centers for youth at risk in Israel. Data were collected by interviews, observations, case studies, and questionnaires. The results show that the volunteers' unique contribution affected the service as a whole. The beneficiaries knew that volunteers were servicing them, perceived volunteers as true altruists, were satisfied to the degree of preferring their services over that of paid workers, and were positively affected by the encounter with volunteering. A significant impact was that volunteers set a living example of the possibility of human goodness via personal encounters and demonstrated the existence of a responsive society with mutual, unconditional caring. These results exhibit practical implications for innovative interventions with youth at risk and illustrate the significance of the psychology of goodness.     

The Distance Selling Directive: Points for Future Revision

The EU Distance Selling Directive that was implemented in UK law in the Consumer Protection (Distance Selling) Regulations 2000 has provided guidelines for the protection of consumers undertaking distance transactions. The following paper discusses the provisions of the Directive with particular reference to e-commerce via the Internet, highlighting some possible areas for further consideration. Articles within the Distance Selling Directive are examined for problems of legal interpretation and implementation. There is discussion of: Article 2 (Definitions) and difficulties with its fundamental concepts of 'supplier' and 'consumer'; unnecessary exemptions in Article 3 (Exemptions); the 'local taxes' headache (and others) in Article 4 (Prior Information) and using e-mail under Article 5 (Written Confirmation of Contract). Under Article 6 (Right of Withdrawal), the 'cooling off period', exempted goods and services, refunds and reclaiming goods, and for Article 7 (Performance) substitute goods and contract law implications, are investigated. Finally Article 8 (Payment by Card) looks at protection against fraudulent card use.