Towards Better Regulation of the Legal Professions in the European Union

This article starts by discussing a number of public interest explanations for regulating the markets of legal services: information asymmetries, negative externalities and public goods. Since professional associations of lawyers meet the requirements for acting as effective lobbyists, the article subsequently investigates private interest explanations. Empirical work to test alternative theories of professional regulation so far remains limited and the results are ambiguous. Even if empirical studies are able to show that there exists a correlation between levels of professional regulation and profits earned, firm policy conclusions cannot be drawn as long as quality is not adequately assessed. After an overview of the theoretical and empirical literature, the article suggests a number of best practices for policy making. The two most important guidelines seem to be the following. Regulation should not be profession-focused but targeted at market failures in particular segments of the legal services markets. Changes of the regulatory infrastructure that create scope for competitive self-regulation may be the best way for coping with market failures and at the same time reducing the scope for rent-seeking

Kirra’s Aboriginal epistemic talk: Driving her bildungsroman

This research discovered a bildungsroman as a structural device for understanding the storytelling embedded in a long duration of talk. Bildungsroman refers to a literary genre that is a particular way of constructing a life story through talk about stages-of-life, moral agency, psychological troubles, identity, and responsibility, and ethnicity. The structural device of a bildungsroman was discovered through the application of the principles, policies, and analytical techniques of Ethnomethodology and Conversation Analysis (EMCA). Aboriginal peoples often transmit their culture through storytelling. A long duration of talk was recorded with a nineteen year old Aboriginal woman, here named Kirra. This phenomenon is reflected throughout the series of ten connected conversations that orient to significant stages in her life. Through the talk Kirra discloses stages-of-life that have characterised her progress from infancy to her coming-of-age as a young adult. Kirra’s talk encompasses episodes, phenomena, and obstacles that she has overcome to achieve a degree of maturity, dignity, and autonomy. Her construction of a bildungsroman is characteristic of Aboriginal discourse whereby their individual lives and their culture are constituted in storytelling. The conversational structures she employs, her moral agency, and her use of membership categorisation devices support the integrity of the choices she makes in her story. This achievement Kirra proposes to pass on to her community in the form of a book. The findings of the study make a distinctive contribution to the scope of Ethnomethodology and Conversation Analysis research, through discovery and analysis of the bildungsroman as a powerful organising conversational phenomenon, providing new ways of analysing storytelling structures in talk. Further, this research has the potential to contribute in distinctive ways to understanding the Aboriginal episteme as shown in day to day talk

Consumer Sales Law from an Economic Perspective

Introduction: In the European internal market consumers have a wide choice of products that become increasingly available through cross-border shopping. Sometimes sellers frustrate consumers‟ contractual expectations by delivering goods that are not of satisfactory quality. To guarantee a minimum level of consumer protection, EC Directive 1999/44 requires that goods must be in conformity with the contract of sale.1 This rule applies regardless of whether the seller behaved negligently. In cases of non conformity consumers have a choice of different remedies for breach of contract by the seller, such as repair or replacement or price reduction. The Directive has been presented as a significant step towards creating an internal consumer market, which would be impeded by fragmented and heterogeneous consumer protection rules. It may be followed in the future by further harmonization initiatives in the field of consumer sales law. From an economic perspective, two sets of questions arise. First, it may be asked whether legal intervention is necessary to guarantee quality in markets for consumer goods. The standard economic answer to this question is that legal rules may cure market failures, in particular problems of asymmetric information. However, any legal intervention must be justified by a benefit-cost analysis to enhance economic efficiency and avoid counterproductive effects. Consumer protection should be increased only up to the point where its marginal cost equals its marginal benefit. Moreover, market failures should not be replaced by government failures, which lead to outcomes that are worse than those of imperfect markets. Second, Law and Economics scholars have critically analyzed the question relating to the best level of government for designing regulatory responses to market failures. Should rules of consumer protection be enacted at the European level or should regulatory action be taken by the Member States? The economic analysis of federalism and regulatory competition provides several useful insights that are also relevant for discussing the desirability of harmonization of consumer sales law to further market integration

Optimal Enforcement of Safety Law

Given the threats of our current 'risk society', there is an ever-increasing demand for safety regulation to counter the harmful effects of an equally growing number of dangerous activities. Claims for more safety and security abound, ranging from concerns about people killed in traffic accidents and consumers harmed by unsafe products to anxiety about environmental disasters (global warming) and terrorism. This state of affairs poses difficult issues for policy makers. While government resources are necessarily limited, demands for safety and security are in principle without bounds. It is thus unavoidable that difficult choices must be made and priorities must be set. The Law and Economics literature has developed a comprehensive normative framework to prescribe optimal legal policies when individuals behave rationally. It is well established that enforcement agents should not aim at a minimum level of violations of legal norms but at an optimal level. The main goal of this paper is to apply the insights from the Law and Economics literature on optimal law enforcement to the area of safety regulation. Our paper distinguishes between the form of the sanctions (monetary versus non-monetary), the role of private parties versus public agents in enforcement (e.g. group actions), the timing of the enforcement measures (preclusion, act-based sanctions and harm-based sanctions) and the division of competencies between central enforcement authorities and decentralized enforcement agencies. Furthermore, we discuss several criticisms on the rational choice model (especially related to terrorism) and briefly discuss compliance strategies as alternative approach to deterrence strategies

The preventive function of collective actions for damages inconsumer law

From a deterrence perspective, private enforcement of consumer law can be insufficient for several reasons. Individual consumers may find it too costly to start a lawsuit (‘rational apathy’) or they may not even know that an infringement has occurred (‘information asymmetry’). If public enforcement is not available, or if the budget of public authorities is limited and used for other purposes, the problem of under-enforcement will persist. Collective actions may be able to mitigate these problems. If many consumers can join their claims, the costs per claim decrease so that the rational apathy problem might be overcome. If consumer associations have standing, they might be able to acquire better information regarding infringements than individual consumers are able to do. However, collective actions pose problems of their own. The leading plaintiff or the organisation issuing the collective action could try to advance its own interests, rather than furthering overall consumer interests. Moreover, a large-scale lawsuit might harm the reputation of the defendant and thus create the possibility of ‘frivolous suits’. The paper discusses a number of possibilities to overcome these problems. Ultimately, private and public enforcement will need to co-exist, since collective actions are not a perfect instrument to achieve optimal deterrence

The Principles of European Tort Law

__Abstract:__ The goal of the _Principles of European Tort Law_ is to serve as a basis for the enhancement and harmonization of tort law in Europe. This paper takes a critical look at these _Principles_ from a Law and Economics perspective. The first part of the paper questions the traditional arguments in favour of harmonization, such as the need to achieve a ‘level playing field’ for industry and the reduction of legal uncertainty which may hinder cross-border trade. There are several economic arguments in favour of diverging tort laws: the possibility to satisfy heterogeneous preferences and the learning processes generated by competition between legal orders. Economic arguments in favour of harmonization are weak. There is no need for central rules to internalize externalities; a race to the bottom is unlikely and the amount of transaction cost savings may be low. The second part of the paper examines whether the _Principles_ may contribute to ‘better’ tort law. Large parts of the _Principles_, such as the fault standard and some of the rules on causation, are in conformity with economic insights. According to Article 10:101, damages serve the goal of compensation but also the aim of preventing harm. However, it is shown that several provisions of the Principles are not in conformity with the goal of prevention. The analysis focuses on the limitation of damages to normal losses, the different levels of protection in functio

Ectopic expression of Thy-1 in the kidneys of transgenic mice induces functional and proliferative abnormalities.

Hybrid human--mouse Thy-1.1 genes were injected into pronuclei of Thy-1.2 mice to produce transgenic animals. A hybrid gene composed of the 5' part of the mouse Thy-1.1 gene combined with the 3' human untranslated regions was expressed abnormally in the kidney podocytes, which resulted in severe protein-uria and subsequent death in several founder mice. A hybrid Thy-1 gene composed of the human coding region with the 5' and 3' flanking regions of the mouse gene was expressed abnormally in a different part of the kidney (the tubular epithelia), which resulted in a proliferative kidney disorder. In addition, a neoplasm was found in the brain of one of these mice. These results show that the Thy-1 protein can play an important role in the activation, proliferation, and differentiation of many different cell types