The Arc and Architecture of Private Enforcement Regimes in the United States and Europe: A View Across the Atlantic

The United States and Europe have traditionally taken very different approaches to the regulation of harmful conduct. Previously, European nations relied almost entirely on the public enforcement of laws, whereas the United States relied on a mix of public and private actors. In the United States, private rights of action have played a central role deterring illegal conduct—and, in fact, provided greater deterrence than public enforcers in some areas of law. They have also allowed injured parties to obtain compensation. Despite their very different histories, the private enforcement systems in the United States and Europe are showing signs of convergence today. Since the 1970s, industry in the United States has waged a potent public relations campaign against private rights of action. This pro-business crusade has depicted corporations as victims of a litigation explosion and cast plaintiffs and their attorneys as unscrupulous mercenaries. This narrative has little, if any, empirical support. Nonetheless, based on this mythology, the Supreme Court and other federal courts have erected a number of procedural obstacles to effective private enforcement of law. While private enforcement is in retreat in the United States, the European Union seeks to strengthen private rights of action, with an emphasis on private enforcement of antitrust law. Recent EU initiatives established some of the foundations for private parties to protect their rights in court. European policymakers, however, have as yet declined to establish effective claims’ aggregation and litigation funding mechanisms, citing the business victimhood mythology spread by private industry in the United States. Encouragingly, a few EU Member States have rejected this paradigm and established some of the elements of strong private rights of action. In particular, Denmark, the Netherlands, Portugal, and the United Kingdom have passed laws that are likely to foster effective private litigation. A comparative analysis of enforcement institutions on both sides of the Atlantic reveals a complex picture. American and European consumers, workers, and other large groups will generally face major obstacles to vindicating their rights. In cases generating larger individual claims, American and European plaintiffs’ lawyers may still be able to use aggregate settlement procedures to hold corporate defendants to account. When understanding its contribution to the deterrence of harmful conduct, private enforcement has to be viewed together with public enforcement. Because much of the enhancement of private enforcement in the European Union arises in the context of antitrust, it is an area ripe for cross-continent examination. With antitrust, the overall enforcement landscapes in the United States and European Union will likely be drastically different in the medium term. Due to limited public enforcement, a decrease in private lawsuits will severely compromise overall antitrust enforcement in the United States. In Europe, strong public enforcement will offset generally weak private enforcement and result in far more effective protection of consumer rights

Standardizing Warhol: Antitrust Liability for Denying the Authenticity of Artwork

Art authentication boards are powerful; their determinations of authenticity can render artwork worthless or add millions of dollars to market value. In the past, boards that denied authenticity of artwork typically risked tort liability for disparagement, defamation, or fraud. In Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., however, an art collector alleged monopolization and market restraint after an authentication board denied the authenticity of his Andy Warhol painting by stamping “DENIED” on the back of it. The case is the first antitrust lawsuit against an authentication board to survive the defendant’s motion to dismiss. The decision therefore suggests potential liability exposure under the Sherman Antitrust Act for art professionals who render opinions on the authenticity of artwork. This Article discusses how Simon-Whelan provides a framework for pleading antitrust claims against authentication boards and considers what standard could be appropriate for analyzing similar claims at trial. This Article also describes how antitrust law governing standards setting and product certification outside the art world could apply to art authentication and organizations setting authenticity standards

The Path of Internet Law: An Annotated Guide to Legal Landmarks

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace

The Path of Internet Law: An Annotated Guide to Legal Landmarks

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace

How Judicial Hostility Toward Environmental Claims and Intimidation Tactics by Lawyers Have Formed the Perfect Storm Against Environmental Clinics: What\u27s the Big Deal About Students and Chickens Anyway?

Since 1976, when the first environmental clinic was started at the University of Oregon’s law school, clinics have proliferated. Today, approximately one out of five law schools has an environmental clinic. With respect to clinics in general, the Association of American Law Schools Directory of Law Teachers lists “nearly 1400 full-time faculty teaching clinical courses.” Yet far from being an uncontroverted part of the academic landscape, clinics—particularly environmental clinics—have endured political blowback from challenging the environmentally destructive behavior of major economic interests. The effectiveness of environmental clinics is no greater than established environmental organizations—perhaps less effective given the length of time it takes for law students guided by faculty to mount a legal challenge and the complexity and difficulty of the cases these clinics take on. Nonetheless, environmental clinics repeatedly find themselves the target of efforts to shut them down, restricted in the types of cases and/or clients they can take on, and limited by supervisory boards with the power of case approval. Why is this? What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim? This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics. Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests. This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job

How Judicial Hostility Toward Environmental Claims and Intimidation Tactics by Lawyers Have Formed the Perfect Storm Against Environmental Clinics: What\u27s the Big Deal About Students and Chickens Anyway?

Since 1976, when the first environmental clinic was started at the University of Oregon’s law school, clinics have proliferated. Today, approximately one out of five law schools has an environmental clinic. With respect to clinics in general, the Association of American Law Schools Directory of Law Teachers lists “nearly 1400 full-time faculty teaching clinical courses.” Yet far from being an uncontroverted part of the academic landscape, clinics—particularly environmental clinics—have endured political blowback from challenging the environmentally destructive behavior of major economic interests. The effectiveness of environmental clinics is no greater than established environmental organizations—perhaps less effective given the length of time it takes for law students guided by faculty to mount a legal challenge and the complexity and difficulty of the cases these clinics take on. Nonetheless, environmental clinics repeatedly find themselves the target of efforts to shut them down, restricted in the types of cases and/or clients they can take on, and limited by supervisory boards with the power of case approval. Why is this? What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim? This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics. Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests. This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job

Linking the Culpability and Circumstantial Evidence Requirements for the Spoliation Inference

Today  Real  estate  companies  face  the  challenge  where  extensive  renovations  on  existing housing built before 1980 must be performed. Conditions have changed and the housing need performance-­‐enhancing measures that meet today's quality. With a current renovation rate,  it  would  take  30  years  to  meet  the  renovation  needs.  The  renovation  rate  must therefore rise dramatically, which requires the real estate companies to act consistently in accordance with commercial principles and in an economically, socially and environmentally responsible way. The  paper  discusses  renovation  strategies  in  four  municipal  housing  companies  in  the Stockholm  suburbs.  The  report  includes  surveys  of  four  ongoing  renovation  projects; Fastighets AB Förvaltaren in Sundbyberg project Hundloken 3, Stiftelsen Signalisten in Solna project Ritorp, Sollentunahem in Sollentuna project Svalgången och Väsbyhem in Upplands Väsby project Dragonvägen. The main purpose of this study was to analyze the practices of redevelopment projects. What opportunities and obstacles arise and how do the housing companies choose to respond to the current societal requirements. How do you work with redevelopment projects and how do you finance these.  The purpose of this paper is not to provide a clear and definite conclusion; the basis of the thesis has therefor been case studies. As the needs and conditions vary depending on the renovation project; there are no standard solutions, but there are important issues to be highlighted. It can be noted that the hard part of a renovation project is to get a flow without any barriers, where both the tenant's needs and wishes are taken into account and at  the same time it has to be economically and socially reasonable for the companies to implement the great need of renovation. The study indicates to some important questions to  have  in  consideration  when  renovating;  a  social  responsibility  to  not  stop  the  ever growing housing queue and a financial responsibility to ensure that the tenant is possible to take on the new rent increase that comes with refurbishment and also reasoning about the grounds  on  which  one  should  get  the  right  to  appeal  renovations.  The  results  generated  in this report should be seen as a basis for further discussion on the issue.Fastighetsbolag  står  idag  inför  utmaningen  där  omfattande  renoveringar  på  befintliga fastigheter byggda innan  1980-­‐talet  måste realiseras. Förutsättningarna har ändrats  och fastigheterna  behöver  prestandahöjande  åtgärder som  möter  dagens  kvalitet.    Med  en nuvarande   renoveringstakt   skulle   det   ta   30   år   att   tillgodose   renoveringsbehovet. Upprustningstakten måste således öka radikalt, vilket ställer krav på fastighetsbolagen att agera  konsekvent  enligt  affärsmässiga  principer  och  på  ett  ekonomiskt,  socialt  och miljömässigt försvarbart sätt. Den  här  uppsatsen  behandlar  renoveringsstrategier  på  fyra  kommunala  allmännyttiga fastighetsbolag i Stockholmsförorter. Rapporten innefattar undersökningar av fyra pågående renoveringsprojekt; Fastighets AB Förvaltaren i Sundbyberg projekt Hundloken 3, Stiftelsen Signalisten  i  Solna  projekt  Ritorp,  Sollentunahem  i  Sollentuna  projekt  Svalgången  och Väsbyhem i Upplands Väsby projekt Dragonvägen.   Huvudsyftet med studien har varit att analysera tillvägagångssätt vid ombyggnadsprojekt. Vilka förutsättningar och hinder uppstår och  hur  väljer  man  att  bemöta  de  aktuella  samhällskraven.  Hur  arbetar  man  kring ombyggnadsprojekt och hur finansieras dessa.  Avsikten med uppsatsen är inte att lämna någon tydlig och klar slutsats, utgångspunkten i uppsatsen har därför varit fallstudier. Då behov och förutsättningar varierar beroende av renoveringsprojekt finns inga standardlösningar, men däremot finns det viktiga frågor att lyfta fram. Det man kan konstatera är att det svåra i ett renoveringsprojekt, är att få ett flöde utan  hinder där såväl hyresgästens behov och önskemål beaktas samtidigt som det för företagen ska vara företagsekonomiskt och samhällsekonomiskt försvarbart att genomföra det stora behovet av upprustningar. Studien indikerar för en del viktiga punkter att tänka på; socialt ansvar att inte stoppa upp den ständigt växande bostadskön och ett ekonomiskt ansvar att se till att det för hyresgästen är möjligt att ta sig an ny hyreshöjning som kommer med renovering samt resonemang kring på vilka grunder man ska få rätten att överklaga renoveringar. Det resultat som uppkommer i rapporten bör ses som underlag för vidare diskussion                                                               kring                                                               frågan