General Counsel Research Articles

Evidence for the Non-Evidenced: An Argument for Integrated Methods and Conceptual Discussion on What Needs to be Evidenced in Psychotherapy Research

Evidence for the Non-Evidenced:An Argument for Integrated Methods and Conceptual Discussion on What Needs to be Evidenced in Psychotherapy Research Femke Truijens (bio), Melissa Miléna De Smet (bio), Reitske Meganck (bio), and Mattias Desmet (bio) With its focus on evidence, psychology has grown into a mature, professional, and scientifically supported practice over the last decades. In general, psychotherapy and psychological counselling have shown to be more efficacious than waiting it out (Wampold & Imel, 2015) and a staggering 350 specific treatments have been scientifically supported as effective (Kazdin, 2015). Although, evidencebased treatments seem to work equally well, not all people benefit from evidence-based treatments, and it often remains unclear why. This raised the field-wide concern of what works for whom (Meganck et al., 2017) and sparked a wealth of research on specific ingredients, common factors, process factors, and intra- and inter-individual predictors (Cuijpers, Reijnders, & Huibers, 2019). Considering that about 10% of people in treat ment deteriorate (Lambert, 2011) or experience treatment burdens (Demain et al., 2015), this shift towards more fine-grained and complex mechanisms is not just a scientifically interesting but rather a clinical-ethical imperative. In the first place, this asks for a joint thinking exercise on the philosophical and methodological foundations of both our science and practice. It is not a question whether but rather which evidence we need where general evidence does not fit. Concretely, this asks for discussions such as between Truijens et al. (2021), McLeod (2021), and Kious (2021). Discussions like these have the tendency to become dichotomized: science versus practice, objective versus subjective, quantitative versus qualitative, aggregated versus individualfocused. The responses by McLeod and Kious represent different poles in the debate, as both [End Page 137] provide thorough and nuanced arguments yet end up in almost opposite directions—let's call it "statistical/methodological foundationalism" versus "person-centered/constructivist pragmatism." However, as the parties in the debate do share their clinical aims, the question is whether an either–or approach brings us any further. Especially considering the much-discussed research–practice gap (Iwakabe & Gazzola, 2009), we urge to look for common ground rather than for differences. Indeed, we can take the methodological foundation of evidence (see Kious, 2021) as our starting point and dig deeper into the local validity of epistemic assumptions that are easily taken for granted (see McLeod, 2021). One prominent assumption in psychotherapy research is the assumption of generality. Using probability statistics, we study "the majority" based on mean behavior and outcome, which we assume to be distributed in an orderly manner. By prioritizing a statistics-based methodology, we inherently define "evidence" in a methodological rather than a conceptual way. For example, in the use of mean statistics the exception will by principle be regarded as outlier or error. Consequently, we have limited means to study where the mean does not hold, such as people with more severe, chronic, or complex symptoms or less response to evidence-based treatment protocols. This way, cases that are part of everyday clinical practice in research contexts become "error." This conceptualization-by-methodology has impact on clinical practice and research epistemology. We tend to assume that if we design a study properly, use validated measures, provide every participant with the exact same procedure, the design is internally valid and will thus suffice in principle to reach our purported evidence (Kious, 2021). In Truijens et al. (2021), we discussed three vignettes that show a problem in the execution phase of research that may pose substantial problems to the validity of evidence, regardless of the thoroughness of the trial's design (Meganck et al., 2017). Kious (2021) is quick to assume that these are mere exceptions, but as McLeod argues correctly, we have frankly no idea whether this regards random or systematic error. By using cases instrumentally (Stiles, 2007) we have not argued that we have provided conclusive evidence, but rather that we need to gather such evidence to know more about assumptions that are easily black boxed by statistics. A truly evidence-based science and practice requires evidence for all principles as well as real-world variations, not just the ones that suit our method best. Only when such...

EIA Directive Procedural Guarantees as Substantive Individual Rights in IL v. Land Nordrhein-Westfalen

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did not affect the outcome of the project’s authorization decision, Member States may restrict standing only to individuals’ claims based on procedural defects where it prevented their participation in the entire decision-making process. Drawing from Advocate General Hogan’s opinion in IL v. Land Nordrhein-Westfalen, this paper advocates for designating the procedural guarantees themselves as substantive individual rights. The existing EIA Directive and Aarhus Convention procedural rights are rendered ineffective if the information required to be disseminated in environmental impact statements is not provided. Lacking this information and blocked from challenging these decisions in court, individuals cannot be informed participants, cannot access a review procedure, and cannot fully execute their rights under EU law. If unchanged in light of this rights designation, current Member State laws may violate the Charter of Fundamental Rights of the European Union, the Treaty on the Functioning of the European Union, and general principles of Community law.

Some Remarks on the ‘Shechita Case’ of the ECJ

This study strives to answer why the European Court of Justice’s (ECJ) ‘Centraal Israëlitisch Consistorie van België’ judgment, delivered on 17 December 2020, triggered heated reactions. Similarly, sharp criticisms were articulated regarding the recent decision of the Belgian Constitutional Court (Grondwettelijk Hof), where the Court upheld the national legislation on the ban of slaughter without prior stunning per the aforementioned ECJ judgment. This study examines the historic, theological, and scientific background of shechita and halal slaughter with reference to the aforementioned framework. Furthermore, the study strives to introduce the pros and cons of the issue to help the reader decide whether the ritual slaughter — the slaughter of animals without prior stunning but following certain rules aimed at sparing animals from useless suffering — is as humane as the modern non-religious method, where the slaughter is conducted with prior stunning. This study also examines the different theological interpretations on the acceptability of stunning animals before slaughter. In the second part, the study briefly introduces the freedom of religion-related case law of the European Court of Human Rights, and thoroughly analyses its Cha’are Shalom ve Tsedek decision. Moreover, it examines the ECJ’s two ritual slaughter cases, namely the Liga van Moskeeën and Œuvre d’assistance cases, which preceded the Centraal Israëlitisch Consistorie van België case. As a brief excursus into the jurisprudence of the national constitutional courts, this study also introduces two cases brought by the constitutional courts of Germany and Poland. Finally, the third part thoroughly analyses the Advocate General’s opinion and the judgment delivered in the Centraal Israëlitisch Consistorie van België case of the ECJ to highlight the reasons for the different interpretations of the very same EU law.

Resolving Administrative Cases Concerning Child Under the Foreign Custody of Same-Sex Persons Without Violating National Principles on Filiation as the Ratio Decidendi of the Supreme Administrative Court (NSA) Resolution of 2 December 2019

Resolving Administrative Cases Concerning Child Under the Foreign Custody of Same-Sex Persons Without Violating National Principles on Filiation as the Ratio Decidendi of the Supreme Administrative Court (NSA) Resolution of 2 December 2019

Examination of date tampering on Abraham Lincoln's pardon of Patrick Murphy, RG 153 entry 15, case MM761 (ARC identifier: 1839980)

On January 26, 2011, the Pardon of Patrick Murphy, a document in the U.S. National Archives and Records Administration (NARA) Record Group 153 (RG 153) Records of the Office of the Judge Advocate General (Army), was submitted to conservation for examination. The record was examined with special focus on the handwritten “1865” to the left of Abraham Lincoln's signature. All analysis techniques were non-sampling, non-invasive, and non-damaging as retaining the integrity of cultural heritage is very similar to the forensic handling of evidence. Microscopy, transmitted light, Ultraviolet-induced visible fluorescence, and X-Ray Fluorescence (XRF) spectroscopy analysis confirmed that the ink used to write the “5”, in the April 14, 1865 date is different from the remaining text written by Lincoln and these analytical forensic-inspired techniques allowed scientists and conservators to “set the record straight” about the modern forged “5” for future generations of researchers.

RBG: Nonprofit Entrepreneur

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a judge in 1980. How can we evaluate RBG’s performance in this role? If she had led a for-profit business, we could track its profits. But the test of a nonprofit’s success is not how much money it makes, but how much good it does in the world. To operationalize this somewhat abstract test, I have urged nonprofits to assess their work with three questions, which this Article applies to RBG’s impact litigation: First, how important was the problem RBG was trying to solve? Second, how effective was her response? Third, what were RBG’s comparative advantages in this work? To begin with the first question, RBG targeted an enormously significant problem. In the 1970s, gender discrimination had deep roots in U.S. law. Constantly encountering discrimination in her own career, RBG was emphatic that people should be judged by their ability, not their gender. Yet to advance this meritocratic vision, she had to change the way male judges thought about these issues. Second, how effective was RBG in pursuing this goal? She delivered extraordinary results, crafting a litigation strategy with three key strengths. First, instead of striving to accomplish all her goals in one case, RBG proceeded in stages, so that each new case built on the last one. Like a chess grandmaster, she thought several moves ahead. Second, RBG had a gift for seeing cases through the eyes of (skeptical) male judges, so she chose cases carefully, hunting for compelling facts. Third, ever mindful of her audience, she framed legal issues in ways that resonated with male judges. Along with targeting an important problem in an effective way, a nonprofit also should have comparative advantages in doing its work. This brings us to the third question: What were RBG’s unique strengths in leading the ACLU Women’s Rights Project? She had the courage to take controversial positions and the legal firepower to prevail. As both a successful professional and a devoted spouse and parent, RBG modeled her nonprofit’s mission in her own life. Yet although these issues were deeply personal for her, she rarely showed impatience or frustration. By temperament, RBG was unfailingly polite and collegial. She also knew that venting could set back her cause, and her goal was to do good, not to feel good. By combining this steely self-control with strategic thinking, determination, and eloquence, RBG was stunningly successful. In analyzing RBG’s record as a nonprofit leader, this Article draws not only on the historical record and RBG’s writings, but also on my own experiences with her. I served as her law clerk during the October Term 1994, her second year on the Supreme Court. Over the next twenty-five years, RBG was a generous mentor and a dear friend. We had countless conversations about her impact litigation.

The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction by Alison Peck

Reviewed by: The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction by Alison Peck Michael A. Olivas The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction. By Alison Peck. (Oakland: University of California Press, 2021. Pp. 240 pp. Notes, bibliography, index.) Sometimes there are books that leave you much better for the experience. This is one of them. When I retired from teaching immigration law in late 2019 after nearly four decades, I was the most senior such teacher in the country. I had studied immigration law at Georgetown University with Charles Gordon, who was also the general counsel for the Immigration and Naturalization Services. I recall his explaining then how disorganized its structure was, including what my notes called “conflicts of interest that hurt immigrants and the cause of justice.” Alison Peck brought these memories back in her masterful book, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction, which has thirteen chapters in three sections, “Crisis in the Immigration Courts,” “From World War II to 9/11: The Ghost of the Fifth Column,” and “The Future of the Immigration Courts.” Peck is Charles Gordon’s successor in critiquing the Department of Justice (DOJ) and what she calls its roots of dysfunction, showing, for example, how the 1940 assignment of immigration “judges” by the DOJ was compromised by its singular lack of independence and even specific term limits for the judges. In several chapters she reveals the uncomfortable truth that concerns over [End Page 217] various wars, communism, and national security contributed to the jerry-rigged apparatus that exists now, after more than eighty years of existence. What the late John Le Carré treated in fiction, Peck narrates in fascinating and detailed non-fiction prose. Her tour of the topic begins with a chapter called “The Attorney General’s Immigration Courts,” a telling title. Chapter 9, “The Reckoning,” shows that clever media manipulation has deep roots in World War II, and chapter 10, “Un Día de Fuego,” shows that the nomenclature for the Patriot Act, created in the aftermath of the September 11, 2001, terrorist attacks, should have alerted all of us that truth had already become a casualty of war. While Peck’s description of the administrative apparatus that arose and led us to this unsatisfactory situation serves a purpose, her first table (9) clearly reveals how political and dysfunctional immigration courts became during the Trump administration, whose disastrous policies broke the system, exposing its long-established flaws and using them to grind immigration to a halt. Here she shows that during thirteen presidential administrations, from Franklin D. Roosevelt through Barack Obama, there was a total of nineteen “self-referrals,” whereby an attorney general reserved to himself or herself an immigration case that would ordinarily have been resolved by the Board of Immigration Appeals process. She memorably calls this evasion of traditional rules the same as “moving the goalposts midway through a game with life-or-death consequences” (8). President George W. Bush did so ten of these nineteen times. In only four years, however, Donald Trump’s attorneys general moved the goalposts another seventeen times, almost as many as had occurred in the previous seventy-six years. These figures stunned me, despite my career experience. I constantly asked myself why I did not know the scope of all of these finger-on-the-scale events and why it had not been revealed previously in the hundreds of immigration books and articles I have read carefully over the years. This information alone is justification for the book. Alison Peck has dug deeply into impressive archival materials, including presidential libraries and what must have been secretive meetings with those who had access to classified materials and had to remain unnamed. She also has an adept writing style that usefully organizes much complex material into several narratives that synthesize large amounts of data and events. Having narrated her way to the present day, she provides an epilogue that surprisingly focuses on George W. Bush’s retirement artwork in which immigrants are among his subjects, likening them to Lady...

The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency's published decisions. This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing Co. is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining. This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections. Few initiatives in General Counsel Abruzzo’s agenda could prove more effective in carrying forth the Board’s statutory mission.

Digital Transformation and the Legal Profession: How Corporate Legal Departments Should Digitally Transform to Create New Forms of Value

Due in part to the COVID-19 pandemic, enhancements in technology, as well as shifts in the macroeconomic and socioeconomic dynamics of globalization, Digital Transformation (DT) has become an enterprise-wide imperative for most multinational companies (MNCs). As such, legal departments are being challenged to embrace enterprise DT and start their own department’s DT journeys. Despite these trends, there is little scholarship and research about how MNC legal departments attempt to meet the DT challenge: What are GCs doing to support enterprise level DT, and how are they digitally transforming their own departments? And importantly, is what they are doing effective and value-accretive? How should they approach their DT journeys?Based on interviews of 23 General Counsels and Chief Digital Officers of S&P 500 MNCs along with the authors’ professional experience, we investigate in-house legal departments’ response and approach to DT and recommend a new model approach. Standard depictions of MNC legal departments suggest that they are viewed as cost centers. And much of the literature focuses on how GCs can add value by improving efficiency and lowering cost. The literature also appears to assume law firms provide more creative, strategic, value-additive advice than in-house legal departments. Contrary to such depictions, we contend that DT can enable legal departments to add value that external providers cannot, and that goes far beyond efficiency generation, cost reduction, and increased speed-to-market. We identify a Legal DT Maturity Framework that maps corporate legal departments’ DT trajectory into three common phases. We argue that the current three-phased approach to DT that many GCs utilize generates some added value but does not enable the full potential of DT to be harnessed. Drawing upon lessons from our interviewees’ experiences and our own, we articulate a best-practices model for how legal departments should approach DT to generate new forms of value and shift from being a cost center to a revenue generator and value creator. Our model demonstrates that the GC, as internal to the MNC, has an advantage (as compared to external providers) in understanding the MNC’s strategic priorities and risk preferences and, therefore, is better at identifying the right and best opportunities to leverage and exploit to the MNC’s advantage.In addition to filling some of the gaps in the literature, this article provides a vision that has broad applicability beyond the MNC legal department context and can be used as a model for law firms and other legal services providers to harness DT in their own contexts, so as to stay at pace with—and better serve—clients with the never-ending DT challenges emerging on their horizons.

Gratitude and Forgiveness as Predictors of Subjective Well-Being Among Young Adults in Pakistan

The present study was aimed to explore the impact of gratitude and forgiveness in predicting subjective well-being in young adults. The sample for the study included 300 participants between the ages of 18 and 24 years who were conveniently selected from a university in Karachi city. Gratitude Questionnaire (McCullough et al., 2002), Heartland Forgiveness Scale (Thompson et al., 2005) and Flourishing Scale (Diener et al., 2010) were used as the measures to collect data. Multiple linear regression analysis revealed gratitude to be nonsignificant predictor of subjective well-being, whereas, forgiveness was found to be a significant predictor of subjective well-being . Further, weak positive relation of gratitude with subjective well-being (r = .14), and forgiveness with subjective well-being (r = .34) has been found. However, the explanatory power of this model was revealed to be significant (R2 = .12), suggesting that the variables share an important association which needs further extensive study. This study implies that forgiveness and gratitude may be effectively used in psychotherapy and substantially integrated in general counselling for young adult clients.

The Hoge Raad judgment of 20 December 2019 in the Urgenda case: an overcautious policy for reducing GHG emissions breaches Articles 2 and 8 of the European Convention on Human Rights

The judgment of the Hoge Raad (hereafter HR) given on 20 December 2019 in the Urgenda case upheld the Court of Appeal judgment of 9 October 2018 ruling on a collective interest action brought by the Urgenda Foundation on behalf of 886 Dutch citizens objecting to the inadequacy of measures to reduce greenhouse gas (GHG) emissions in the Netherlands. The HR largely endorsed the particularly detailed advisory opinions delivered on 13 September 2019 by Procurator General F.F. Langemeijer and Advocate General M.H. Wissink. The HR judgment is of particular interest in view of the personal, temporal and substantive scope of Articles 2 and 8 of the European Convention on Human Rights (hereafter ECHR). In recent years there has been an increasing debate on the link between climate change and positive obligations of a preventive nature that are incumbent upon States under human rights law. In the landmark Urgenda case, the HR held that, given the severity of the impact of climate change, the Dutch State is subject to a duty of care in accordance with Articles 2 (right to life) and 8 (right to privacy and family life) ECHR, which have direct effect, and is required to adopt mitigating measures. These measures must involve a 25% reduction of GHG emissions by the end of 2020, instead of the government's projected reduction of 20%. This target is deemed to be necessary so as to limit the concentration of GHG in the atmosphere to 450 ppm in order to prevent the dangerous climate change that would be associated with any temperature rise in excess of 2°C.

Health promotion and preventive health care service guidelines for the care of people with spina bifida.

Individuals with Spina Bifida (SB) have unique lifelong medical and social needs. Thus, when considering how to promote health and offer preventive care, providers must adapt general healthcare screening and counseling recommendations to their patients’ physical and cognitive impairments along with discerning how to monitor secondary or chronic conditions common to the population. This article provides an update on the health promotion and preventive health care guidelines developed as part of the Spina Bifida Association’s fourth edition of the Guidelines for the Care of People with Spina Bifida. The guidelines highlight accommodations needed to promote general preventive health, common secondary/chronic conditions such as obesity, metabolic syndrome, hypertension, musculoskeletal pain, and considerations for preventing acute care utilization for the SB population throughout the lifespan. Further research is needed to understand the effectiveness of preventive care interventions in promoting positive health outcomes and mitigating potentially preventable acute care utilization.

AG Hogan advises CJEU to rule that disclosure of evidence in court proceedings is not a communication to the public

Abstract Opinion of Advocate General Hogan in Case C-637/19 BY v CX, EU:C:2020:650, 3 September 2020 In his Opinion on 3 September 2020, Advocate General (AG) Hogan advised the Court of Justice of the European Union (CJEU) to rule that the electronic transmission by a party to proceedings of protected materials as evidence to a court does neither constitute a communication nor a distribution to the public under, respectively, Articles 3(1) and 4(1) of Directive 2001/29 (the InfoSoc Directive).

OPERATING IN A COVID-19 ENVIRONMENT FROM SHUT DOWN TO REOPENING: INDUSTRY INSIGHTS

OPERATING IN A COVID-19 ENVIRONMENT FROM SHUT DOWN TO REOPENING: INDUSTRY INSIGHTS

The Economic Succession Doctrine in Private Enforcement of EU Competition Law: 'Nothing Extraordinary' After Skanska Industrial?

The article analyses the recent judgment of the Court of Justice of the European Union (CJEU) in Skanska Industrial. In its preliminary ruling, the CJEU recognised for the first time the so-called “economic succession doctrine” in damage claims concerning a breach of EU competition rules. In the judgment, the CJEU relied on its well-established case law. From this point of view, the ruling is “nothing extraordinary”. Nevertheless, the judgment represents an important milestone that contributes to the development of damage claims in Europe. The article first discusses the origins of the economic succession doctrine, which derives from the broad concept of “undertaking” developed by the CJEU case law and the so-called “single economic entity” doctrine. Afterwards, the article discusses the Skanska Industrial case, in particular by comparing the opinion of Advocate General (AG) Wahl with the CJEU ruling in the case. The article concludes by discussing the potential consequences of the CJEU ruling in Skanska Industrial on private enforcement of EU competition law, as well as the questions that remain open after the judgment. After Skanska Industrial, it remains unclear how the disclosure of evidence will take place in practice in the context of a damage claim following a corporate restructuring. Secondly, the limits of the economic succession doctrine remain unclear: it is unclear when a corporate restructuring indeed leads to the establishment of a “new” undertaking, free from the antitrust liability acquired by its predecessor. Finally, it remains unclear whether Skanska Industrial case law could also be extended to other remedies besides damage claims, such as actions requesting a court injunction, compensation for unjust enrichment, or a declaration that a contract is null and void. The article argues that in the coming years the CJEU will probably be called to clarify SkanskaIndustrial case law in order to answer these remaining questions.

Antitrust Damage Claims: A View From Efta Court

Articles 101 and 102 TFEU have become a pattern for competition rules provided in Articles 53 and 54 of the EEA Agreement, which entered into force on 1 January 1994. Both EU competition law and EEA competition law can be enforced before national courts. Lodging damage claims in the EU was facilitated by Directive 2014/104/EU. The so-called Antitrust Damages Directive was highly inspired by the jurisprudence of the Court of Justice of the European Union. Although Directive 2014/104/EU has not been incorporated into the EEA law, damage claims resulting from violations of EEA competition rules are judged by national courts in the EEA Member States, which is why some aspects of private enforcement of competition law have become a point of interest for the EFTA Court, being – together with the Court of Justice of the European Union – the EEA court. Firstly, the article aims at checking if the EFTA Court jurisprudence on antitrust damage claims follows the guidelines formulated in the case law of the Court of Justice. Since the positive answer to this question is highly probable, secondly, the article aims at identifying the extent of the impact of EU jurisprudence in private enforcement cases on judgments of the EFTA Court. The article concludes that the EFTA Court’s activities regarding antitrust damage claims follow the route indicated by the Court of Justice of the European Union. Four identified judgments regarding – directly or indirectly – antitrust damage claims (Nye Kystlink, Fjarskipti, Schenker I and Schenker V), delivered by the EFTA Court, seem to strengthen its position as an institution that is able to guarantee a coherence between EEA and EU competition law. EFTA Court’s judgments in private enforcement cases are also a point of interest and reference for EU Advocates General and can become an inspiration for both EU and national case law.

Amateur sport and Union citizenship in the Biffi case: Towards a European sporting citizenship

This essay focuses on the relation between amateur sport and Union citizenship, analysing the recent Biffi ruling of the European Court of Justice. It examines the opinion of the Advocate General and the Judgment of the ECJ, starting from the established case-law according to which sport is subject to EU law insofar as it constitutes an economic activity. Taking into account the possible application of the Treaty in light of the indirect impact on economic activities of the amateur athlete, the study analyses the legal implications of Article 165 TFUE considering the social function of sport. Finally, the paper illustrates to what extent the Biffi case represents a simple clarification of the existing legal relationship, a coherent case-law development, or another seismic ECJ ruling on sport.

Vicarious Liability of Member States for Their Overseas Countries and Territories: Commission V. United Kingdom and Commission V. The Netherlands

Comment to Case C-391/17, Commission v. United Kingdom, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:919 and Case C-395/17, Commission v. The Netherlands, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:918 The judgments analysed both deal with the vicarious liability of Member States for their Overseas Countries and Territories (OCTs), an important issue of EU constitutional law.1 Both judgments also deal with the consequences of the duty of sincere cooperation for a loss of own resources to the EU budget due to acts or negligence of Member States. There are several technical complexities which make a rapid reading of the judgments, which differ somewhat in the two cases, more difficult. These complexities relate, first, to specific detailed issues on the application of the Overseas Association Decision of 1991 (1991 OCT Decision),2 and, second, to the liability of Member States for a breach of EU law towards the Union itself and towards other Member States. To sum up, the principle of vicarious liability of Member States for acts or negligence of their OCTs is clearly affirmed by the judgments in Commission v. United Kingdom and Commission v. The Netherlands. The Opinions of Advocate General Bobek provide further confirmation for that conclusion, even though he advised against accepting the specific claims of the Commission. The reasoning of the Court clearly shows that this vicarious liability is a consequence of the duty of sincere cooperation, as would have probably appeared even more clearly by endorsing the reasoning of Advocate General Cruz Villalon in his Opinion in Prunus, or the reasoning of this commentator, which is supported by the scholarship on EU overseas law.

Beyond Food Safety – EU Food Information Standards as a Facilitator of Political Consumerism and International Law Enforcement Mechanism

In Case C-363/18 Organisation juive europeenne, Vignoble Psagot Ltd v Ministre de l’Economie et des Finances (“Occupied Territories case”), the Court of Justice of the European Union (CJEU or Court) was tasked with deciding what information on its country of origin or place of provenance is mandatory for business according to existing European legislation. This casenote summarizes the interpretative decisions taken by the Advocate General Hogan (Advocate General or AG) and the Court in their opinion and judgment, respectively. It then considers the broader implications of this case from several perspectives: first, from the perspective of political consumerism and its (potential) role in EU internal market law; second, from the perspective of the enforcement of international law; and third, from the perspective of the coherence of EU food and consumer law including its behavioural dimension.

Information Lawfare: An Underutilized Instrument of National Power

The U.S. legal system is known as the envy of the world. Yet law as an instrument of national power has been woefully understudied. Traditional academic frameworks for studying the instruments of national power do not consider the full potential of law to be used as a weapon of war between states, a concept known as “Law-fare.” Meanwhile, U.S. adversaries understand that law can be a potent weapon, both to achieve concrete military objectives and to win battles in the information domain, and have wielded it against the U.S. As war escalates in the information domain, information law-fare will be a critical piece of any party’s strategy. Through a case study of the U.S.’s strike that killed Iranian Major General Soleimani in January 2020, this short article demonstrates how information law-fare can be used, and why the U.S. must develop its offensive and defensive law-fare capabilities. This paper won a prize in the 2020 Air Force Judge Advocate General School's National Security Law Writing Competition.