Comment on Francis van Loon,stephane delrue,and wim van wambeke, “sociological research on litigation: perspectives and examples”

The sociology of law has a long-standing tradition and indeed produced a vast literature in the area of litigation. Meanwhile, a complementary perspective has been presented which we discuss with the following four perspectives: the relationship between legal economists and legal sociologists; the project of Van Loon, Delrue, and Van Wambeke; an overview of law and economics research with respect to the legal process; and the question of whether both approaches are complementary.     

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition. This revised version was published online in July 2006 with corrections to the Cover Date.     

Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.     

Misuse of private information as a tort: The implications of Google v Judith Vidal-Hall

The Court of Appeal in the recent decision of Google Inc v Judith Vidal Hall¹ has made a number of remarkable rulings in the area of privacy. An important aspect of this decision is that it clarified the legal foundation in which an action for unauthorised disclosure of private information is found. However, the decision itself is not without flaws. This paper seeks to analyse potential problems with the action being classified as a tort as well as the scope of misuse of private information being a form of privacy protection.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

Mine host is searching for a ‘neutrality’ principle!

This article examines the Advocate-General's comments on the ‘hosting’ provision in the eCommerce Directive (00/31/EC). He suggests the existence of a ‘neutrality’ principle in respect of intermediary liability, which operates irrespective of an intermediary's knowledge about the legality or otherwise of the hosted content. This article critically examines this suggestion within the broader debate about the role and responsibilities of intermediaries in a cyberspace context.     

从"马萨诸塞州诉环境保护总署"案谈美国公民公益诉讼制度及对我国的启示

2007年4月美国联邦最高法院对"马萨诸塞州诉环境保护总署"案的终审判决,体现了公民诉讼制度的立法本意。该案进一步明确了公民诉讼的性质,肯定了地方政府和非政府组织或公民为适格的原告,降低了原告关于损害事实的证明负担,淡化了因果关系要求。借鉴美国制度,建立公益诉讼制度,赋予相关机关、社会团体和公民提起环保公益诉讼的权利,是我国有效治理污染的唯一途径。     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

The Adaptive Capacity of Markets and Convergence in Law: UK High Yield Issuers,US Investors and Insolvency Law

This article examines the increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: where the market is poorly adapted to the legal environment and reinforces other pressure for change, where the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and where both legacy and adapted structures exist, potentially pulling in different directions at the same time.