Inter-Agency Evidence Sharing in Competition Law Enforcement

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/ evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.

'An aid to mental health': natural history, alienists and therapeutics in Victorian Scotland

In the nineteenth century natural history was widely regarded as a rational and ‘distracting’ pursuit that countered the ill-effects, physical and mental, of urban life. This familiar argument was not only made by members of naturalists’ societies but was also borrowed and adapted by alienists concerned with the moral treatment of the insane. This paper examines the work of five long-serving superintendents in Victorian Scotland and uncovers the connections made between an interest in natural history and the management of mental disease. In addition to recovering a significant influence on the conduct of several alienists the paper explores arguments made outside the asylum walls in favour of natural history as an aid to mental health. Investigating the promotion of natural history as a therapeutic recreation in Scotland and elsewhere reveals more fully the moral and cultural significance attached to natural history pursuits in the nineteenth century.

BAILII, Legal Education and Open Access to Law

The British and Irish Legal Information Institute (BAILII) entered the online legal information landscape in 2001 with charitable status as a provider of UK and European judgments, and has over the past decade or so moved from a system quickly put together with any materials which could be found, to a system which provides a core resource to professionals in law. In this article we provide an overview for the law teacher of the system’s first years and we then look at whether usage in law schools has matched that of the professional, how the JISC funded Open Law project enabled development for law students, and where we might go in the future as part of the Legal Information Institute collective which operates under the ‘Free Access to Law’ banner.
As members of the Open Law team who sought funding, carried out the research and implemented the project, it seems to us that the project was generally successful. Our indications were that prior to Open Law the use of BAILII by students was low – it was not readily found or discussed by lecturers, was difficult to use, and generally less user friendly than it could have been. The changes implemented by Open Law appear to have changed that position considerably. However, our findings also indicate that there is much work to do to re-energise digital legal information as a legal education research field.

Civil Society Aid to Post-Communist Countries

A major debate within foreign aid literature is whether civil society can be ‘purchased’ through outside assistance.We test this proposition by exploring the influence of aid provided by the United States Agency for International
Development on post-communist civil rights environments. A review of research critical of international assistance highlights the risk of unsustainability, polarization and dependence among recipient civic organizations.We argue that
a more effective stimulant is socio-economic growth, which stimulates committed constituencies, higher citizen expectations and pressure on the state to protect civil freedoms. Using cross-sectional, time-series data from 27
post-communist countries, we find no evidence that aid independently promotes stronger civil rights environments but that economic growth produces substantial improvements. Further, any aid effectiveness appears to be conditional on economic strength.We conclude that developmental organizations should reassess how and where civil society aid is targeted.

Enforcing Employment Discrimination Law - Potential Transplants from Italy to Britain and Vice Versa?

While substantive EU non-discrimination law has been harmonized in great detail, the enforcement regime for EU non-discrimination law consists merely of a few isolated elements. Thus, the pursuit of unity through harmonization in substantive EU law is accompanied by considerable regulatory autonomy for Member States in securing the efficiency of those laws, reflecting the diversity of national enforcement regimes, and resulting in twenty-seven different national models for enforcing discrimination law in labour markets. This article pursues two connected arguments through a comparison of rules for enforcing non-discrimination law in labour markets in Britain and Italy. First, it argues that enforcing non-discrimination law in labour markets is best achieved when responsive governance, repressive regulation and mainstreaming equality law are combined. Second, the article submits that diversity of national legal orders within the EU is not necessarily detrimental, as it offers opportunities for mutual learning across legal systems.The notion of mutual learning across systems is proposed in order to analyse the transnational migration of legal ideas within the EU. Such migration has been criticized in debates about the ‘transplantation’ of legal concepts or legal irritation through foreign legal ideas, in particular by comparative labour lawyers. However, EU harmonization policies in the field of non-discrimination law aim to impact on national labour laws. The article develops the notion of mutual learning across legal systems in order to establish conditions for transnational migration of legal ideas, and demonstrates the viability of these concepts by applying them to the field of non-discrimination law

Sex Offender Registration: Some Observations on ‘Megan’s Law’ and the Sex Offenders Act 1997

“Megan’s Law” in the United States and Part 1 of the Sex Offenders Act 1997 in the United Kingdom, make provision for the creation of a register which will record the names and addresses of all persons convicted or cautioned for a sexual offence. Arguments expounded in favour of the legislation include the supposedly high recidivism among sex offenders, the inadequacy of supervision provisions, and the resulting need to ‘track’ the dangerous offender for public protection. In practice, however, there are a plethora of obstacles, such as cost and inadequate policing resources, which may impede its effectiveness in aiding law enforcement and reduce it to symbolic significance only. In addition, there are an array of ethical objections to the legislation, such as it breaches civil liberties and constitutes ‘double jeopardy’, which may prevent meaningful imposition.

Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.