对我国行政性垄断与事业单位限制竞争行为的理性思考

行政性垄断是破坏市场经济秩序的主要原因之一,事业单位的限制竞争行为是我国目前经济生活中的一种突出现象,二者具有质上的同一性和行为的社会危害性。本文从分析这两类行为的概念与特征着手,探讨和比较了二者的成因、表现形式及危害,并给出了规制两类行为的初步思路。     

Black and Blue Bloods: Protecting Police Officer Families from Domestic Violence

Officer‐involved domestic violence (OIDV) is a national problem, with police officer families having higher rates of domestic violence than non–police officer families. OIDV is also an underresearched problem with few studies or proposed solutions. Many victims of OIDV do not report their abuse precisely because their abuser is a police officer, whom they fear is in a unique position to protect him/herself from any legal consequences. Often, OIDV complaints are not investigated properly in a nonbiased manner. While a handful of police agencies around the country have developed specific policies and procedures to deal with OIDV, Washington State has enacted legislation that requires its police agencies to adopt OIDV‐specific policies. The International Associations of Chiefs of Police (IACP), an organization that addresses various issues confronting law enforcement, has also developed a model policy on OIDV. This Note proposes that, in light of the Washington legislation and the model policy proposed by the IACP, each state should enact a statute that requires its police agencies to develop policies on OIDV. This Note also outlines a specific set of procedures that such statutes should, at a minimum, require its police agencies to adopt, ranging from educating police officers on domestic violence to developing guidelines on responding to and investigating OIDV complaints.     

Protecting digital identity in the cloud: Regulating cross border data disclosure

Widespread use of cloud computing and other off-shore hosting and processing arrangements make regulation of cross border data one of the most significant issues for regulators around the world. Cloud computing has made data storage and access cost effective but it has changed the nature of cross border data. Now data does not have to be stored or processed in another country or transferred across a national border in the traditional sense, to be what we consider to be cross border data. Nevertheless, the notion of physical borders and transfers still pervades thinking on this subject. The European Commission (“EC”) is proposing a new global standard for data transfer to ensure a level of protection for data transferred out of the EU similar to that within the EU. This paper examines the two major international schemes regulating cross-border data, the EU approach and the US approach, and the new EC and US proposals for a global standard. These approaches which are all based on data transfer are contrasted with the new Australian approach which regulates disclosure. The relative merits of the EU, US and Australian approaches are examined in the context of digital identity, rather than just data privacy which is the usual focus, because of the growing significance of digital identity, especially to an individual's ability to be recognized and to transact. The set of information required for transactions which invariably consists of full name, date of birth, gender and a piece of what is referred to as identifying information, has specific functions which transform it from mere information. As is explained in this article, as a set, it literally enables the system to transact. For this reason, it is the most important, and most vulnerable, part of digital identity. Yet while it is deserving of most protection, its significance has been largely under-appreciated. This article considers the issues posed by cross border data regulation in the context of cloud computing, with a focus on transaction identity and the other personal information which make up an individual's digital identity. The author argues that the growing commercial and legal importance of digital identity and its inherent vulnerabilities mandate the need for its more effective protection which is provided by regulation of disclosure, not just transfer.     

Correspondence

The viability and desirability of a finance-led growth regime is first assessed against the historical evidence about the many alternative regimes that have been proposed as successors to Fordism. A purely hypothetical model is then built by assembling various hypotheses derived from the observation of current American trends. The imposition of financial norms, such as shareholder value, requires a new and coherent architecture for the mode of governance of firms, the form of competition, the wage labour nexus and the objectives of monetary policy, public budget and tax system. According to the model, any requirement for increased profit has a variable macro-economic impact on wages and economic activity according to the size of accelerator effects and the relative importance of wage and profit in income formation. The stability of an equity-based regime depends on monetary policy which controls financial bubbles and thus the diffusion of finance may push the economy into a zone of structural instability. The next major financial crisis may originate in the USA whose economy approximates most closely to the model. But, the so-called American 'new economy' combines diverse but interdependent structural transformations: diffusion of Information and Communication Technologies, search for new rules for competition, increased flexibility in wages and employment, shift from manufacturing to services. Finance is an element in, but not the whole of, this complex emerging regime.     

The EU Proposal for a General Data Protection Regulation and the roots of the ‘right to be forgotten’

The EU Proposal for a General Data Protection Regulation has caused a wide debate between lawyers and legal scholars and many opinions have been voiced on the issue of the right to be forgotten. In order to analyse the relevance of the new rule provided by Article 17 of the Proposal, this paper considers the original idea of the right to be forgotten, pre-existing in both European and U.S. legal frameworks. This article focuses on the new provisions of Article 17 of the EU Proposal for a General Data Protection Regulation and evaluates its effects on court decisions. The author assumes that the new provisions do not seem to represent a revolutionary change to the existing rules with regard to the right granted to the individual, but instead have an impact on the extension of the protection of the information disseminated on-line.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

On Desire,Transcendence and Sacrifice

This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness. Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.

How to control interception-does the UK strike the right balance?

This Article critically analyses the regime for intercepting the content of communications under the Regulation of Investigatory Powers Act 2000 in the light of the recent ruling by the European Court of Human Rights in Kennedy v the UK. It looks at the safeguards for privacy protection provided such as the requirement for a warrant and the roles of the Investigatory Powers Tribunal and the Interception of Communications Commissioner and whether these safeguards are compliant with Article 8 of the European Convention of Human Rights.     

Guidelines for the responsible application of data analytics

The vague but vogue notion of ‘big data’ is enjoying a prolonged honeymoon. Well-funded, ambitious projects are reaching fruition, and inferences are being drawn from inadequate data processed by inadequately understood and often inappropriate data analytic techniques. As decisions are made and actions taken on the basis of those inferences, harm will arise to external stakeholders, and, over time, to internal stakeholders as well. A set of Guidelines is presented, whose purpose is to intercept ill-advised uses of data and analytical tools, prevent harm to important values, and assist organisations to extract the achievable benefits from data, rather than dreaming dangerous dreams.     

Children's Rights and the Politics of Food: Big Food Versus Little People

This article traces the battle in the United States during the Obama administration, continuing into the Trump administration, to protect children's rights to food. It explores barriers to development of sound, science‐based food policies, including the refusal to recognize food as a human right, anti‐science denialism, hostility toward government regulation, and relative powerlessness of children. It points to the role of a “Big Food Pyramid” composed of powerful food industry and large scale distribution and marketing interests in blocking sound policies in prenatal and infant nutrition, school lunches, SNAP and WIC, the marketing to children of high fat and fructose‐laden products, and campaigns to increase youth fitness. While predicting a continuing assault at the federal level on children's rights to safe and healthy foods, the article highlights the positive role of consumer demand in shaping marketing, labeling and production of food and opportunities for leaders in the food industry and in government at local, municipal and state levels to continue the battle for sound food policies.