Race as a factor in university admissions

In two recent cases, Grutter v. Bollinger, 539 U.S. 306. (2003) and Gratz v. Bollinger, 539 U.S. 244. (2003), the Supreme Court held that the Equal Protection Clause permitted state schools to use race-sensitive admissions in order to obtain the educational benefits that flow from a diverse student body. The diversity-based argument for race-sensitive admissions, scholarships, awards, and other opportunities at universities should have been rejected because it does not consider the full range of costs and benefits and because the more narrow educational effects probably weigh against such programs. However, this does not suggest that applicants’ race, ethnicity, and gender should be ignored. Rather the same consideration that led to the defeat of the diversity argument, i.e., reasoning capacity, supports the consideration of demographic factors. However, attention to such factors further undermines the consequentialist case for affirmative action.     

Punishment and Paperwork: White-Collar Offenders Under Community Supervision

This article examines how changes in penal ideology may affect the experiences of white-collar offenders under community supervision. In-depth interviews with white-collar offenders on their experiences while under federal probation are used to examine how changes in criminal punishment have undermined the traditional reintegrative and rehabilitative goals of community supervision. The analysis suggests that shifts to a more managerial, actuarial model that seeks depersonalized efficiency has unintended consequences that delegitimatize the criminal justice system, and foster sentiments of degradation. Based on these findings, considerations for future research are discussed.     

The effect of board size and composition on European bank performance

Banks are “special” financial institutions generating distinct corporate governance challenges. The present paper examines the relationship between two of the most pertinent corporate governance factors—that is, the size of the Board of Directors and the proportion of non-executive directors—and firm performance on a sample of 58 large European banks over the period 2002–2004. The empirical analysis embraces a number of bank-specific variables. Our results reveal that bank profitability is negatively related to the size of the Board of Directors, while the impact of Board composition, although positive in all models, is, in most cases, insignificant. The results are robust after controlling for firm-specific variables.      

Schadenersatzreform – Gefährdungshaftung und Unternehmerhaftung

Der Entwurf eines neuen ?sterreichischen Schadenersatzrechts sieht Regelungen der Gef?hrdungshaftung sowie der Unternehmerhaftung vor. Der Beitrag untersucht die jeweilige Ausgangslage, das Reformanliegen und die Konsequenzen einer Reform.     

<Emphasis Type="Italic">Peters Edition v. Batt</Emphasis>: The Intertextuality of Silence

The article deals, on the one hand, with a legal conflict between a musical performer/arranger, Mike Batt, and the estate of a composer of avant-garde music, John Cage, over copyright. It is also concerned with the field of intertextuality – how meaning is created in a text or in a work of art, whether it is visual, musical or verbal, through allusions and quotations to previous texts or works of art. The controversy, which did not reach the courts because of a pre-trial settlement, was over an author’s rights to silence, or, as in this case, a silent piece of music. The central issue discussed is the way in which silence may be considered – if at all, to be protectable.     

The European airline industry: law and economics of low cost carriers

This article offers an analysis of the European airline industry in order to understand the new dynamics of the competitive field. The liberalization process did not lead the entrance of competitors similar to incumbents, but a new organizational model has been developed, the one of low cost carriers. The incumbents’ reaction to the liberalization process coupled with the entrance of low cost companies into the sector are hence considered. Two theories are analysed: the contestable markets theory, to understand the theoretical vision that has influenced the liberalization process, and the core theory, a modern approach to the concept of destructive competition that, according to some authors, is a recurring problem in the sector. While numerous barriers to entry still exist, the paper examines how the organizational model of low cost companies has helped new entrants to overtake these obstacles. By the same token, the application of the core theory does not seem to justify strategic alliances taking place in these years. The competitive framework is definitely clearer if we analyse sector changes in a different way, from the point of view of low cost companies considered as new market actors.     

Competitive Liberalization,Competitive Imperialism,and Intellectual Property

Aggressive pursuit of free trade agreements (FTAs) and customs unions (CUs) by major and minor trading powers alike challenges the conventional wisdom in favor of such pursuit – competitive liberalization. An equally plausible explanation for an active bilateral and regional trade agreement policy, one which effectively de-emphasizes multilateralism, may be competitive imperialism. The protection and enforcement of intellectual property rights is one area in which new provisions, going beyond multilateral rules, are being negotiated and written into FTAs and CUs. Such provisions may yield insights into which characterization of bilateralism and regionalism – competitive liberalization or competitive imperialism – is more apt. Rice Distinguished Professor, The University of Kansas, School of Law, Green Hall, 1535 West 15th Street, Lawrence, KS 66045-7577, USA. Tel. +1-785-8649224. Fax. +1-785-8645054. www.law.ku.edu. J.D., Harvard (1989); M.Sc., Oxford (1986); M.Sc., London School of Economics (1985); A.B., Duke (1984). Marshall Scholar (1984-86). Member, Council on Foreign Relations, Royal Society for Asian Affairs, and Fellowship of Catholic Scholars. Author, Modern GATT Law (Sweet & Maxwell 2005), International Trade Law: Theory and Practice (2nd ed. 2000, 3rd ed. forthcoming 2007-08), and Trade, Development, and Social Justice (Carolina Academic Press 2003). I am thankful to my Research Assistant, Mr. David R. Jackson (B.A., George Mason University, 1992; J.D. Class of 2007, University of Kansas), for his indispensable help on this work. I also am grateful to Dr. Mohammed El Said, University of Central Lancashire (UCLAN), for his consistent support and friendship, and for what he has taught and continues to teach me about international trade and intellectual property.