Legal Privilege Research Articles

Mandate of Compassion: Prevention of Cruelty to Animals in Palestine, 1919–1939

ABSTRACTThis article reconstructs the history of animal protection organisations in Palestine from the British occupation to the beginning of World War II. Although Arab and Jewish mandate state subjects consistently rejected these organisations, animal protection remained an important part of the mandate government throughout the political upheavals of the interwar period. Despite their seemingly apolitical nature, animal welfare associations enjoyed unique legal privileges and drew support from the most prominent British personnel in Palestine. Managing cruelty and compassion towards animals, I argue, was a means of making Palestine part of the British Empire. Animal protection functioned both as a tool for direct financial control over agriculture, and as an educational project that promoted an emotional ‘civilizing mission.’ In the spirit of inter-war British imperial humanitarian networks, animal welfare created civilizational hierarchies through compassion, and revised the role of the human-animal divide in imperial culture.

Legal Professional Privilege in EU Antitrust Enforcement: Law, Policy & Procedure

This article discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU [Treaty on the Functioning of the European Union] by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.

Borderland Narratives: Negotiation and Accommodation in North America's Contested Spaces, 1500-1850 ed. by Andrew K. Frank and A. Glenn Crothers

Reviewed by: Borderland Narratives: Negotiation and Accommodation in North America's Contested Spaces, 1500-1850 ed. by Andrew K. Frank and A. Glenn Crothers James L. Hill Borderland Narratives: Negotiation and Accommodation in North America's Contested Spaces, 1500-1850. Edited by Andrew K. Frank and A. Glenn Crothers Contested Boundaries. (Gainesville and other cities: University Press of Florida, 2017. Pp. [vi], 217. $74.95, ISBN 978-0-8130-5495-7.) Andrew K. Frank and A. Glenn Crothers have assembled an impressive volume that aims to provide a comprehensive overview of the past, present, and future of borderlands scholarship. The editors' introduction constructs a framework for the chapters that follow by providing an excellent synopsis of borderlands historiography. Ranging from Herbert E. Bolton's pioneering work of the 1920s to the contested meanings of the term borderlands in modern-day scholarship, the historiographical overview is a valuable resource for scholars and students in need of a comprehensive review of the field. Each of the contributing authors seeks to take borderlands scholarship in new directions, whether geographically, chronologically, or thematically. As the editors observe, each author interprets the meaning of borderlands differently. Frank's chapter on Seminole ethnogenesis frames Florida as a political and ethnocultural borderland both shared and contested by Creek migrants, enslaved and refugee Africans, and American colonizers throughout the early 1800s. The author revises scholarly interpretations of the Second Seminole War, arguing that the war interrupted, but did not eliminate, an ongoing process of Seminole ethnogenesis that involved both African and Creek peoples. Also examining the Native South, Tyler Boulware focuses on the mechanism through which the creation of social and cultural borderlands occurred: the proliferation of horses. Boulware argues that the mobility offered by horses undermined efforts to set firm territorial boundaries and facilitated [End Page 139] cross-cultural connections among various Native and Euro-American populations. Meanwhile, Carla Gerona conceptualizes borderlands as "geographic zones marked and marred by disappearances" (p. 97). Complicating historical narratives about early Spanish entradas along the Gulf Coast and into modern-day Texas, Gerona argues that significant numbers of both Spaniards and Native people simply vanished as a result of the violence, death, and dislocation that these encounters produced. Other authors in the volume define borderlands as areas that complicated social and legal boundaries, existing in tension with ideas about race and slavery in the antebellum United States. Rebekah M. K. Mergenthal argues that the Missouri Valley (specifically, the surprisingly permeable boundary between the state of Missouri and the federally designated Indian Territory) functioned as a borderland between slavery and freedom for people of African descent. Mergenthal shows that enslaved people labored in bondage to both white and Native masters in Shawnee territory, where slavery should not have existed according to federal law, and that refugees from slavery along the border often chose to flee to more distant Illinois and Iowa instead. Moving farther south, to antebellum St. Louis and its environs, Julie Winch finds a racial borderland where free people of color flouted legal restrictions that sought to limit their access to education, mobility, and property ownership and crossed racial boundaries as it suited them. Looking at the complicated case of the mixed-race Clamorgan family, Winch finds that the descendants of French trader Jacques Clamorgan and his multiple black concubines navigated complex webs of Spanish and American law in their attempts to defend claims to freedom, property, and various legal privileges. The editors emphasize their inclusion of the Ohio Valley under the borderlands framework as particularly significant. Three of the volume's eight chapters focus on this region. Rob Harper's chapter analyzes Dunmore's War as an example of how borderlands environments created opportunities for building coalitions among diverse peoples. Harper frames modern-day Kentucky as a contested zone in the 1760s and 1770s, where a wide range of British colonists and Native peoples vied for control. Harper argues that through negotiations with rival speculators, land-hungry backcountry settlers, militia officers, and Delaware and Haudenosaunee chiefs, Virginia's last royal governor, Lord Dunmore, fleetingly but successfully asserted claims to a sizable chunk of the southern Ohio Valley. Philip N. Mulder and Michael Pasquier examine the Ohio Valley as both...

New Vision: Liberating the BBC from the Licence Fee

There is a long history of governments restricting competition in broadcasting and changing the definition of public service broadcasting in a way that seems to serve producer interests. The current definition of public service broadcasting used by Ofcom is not coherent. The nature of the broadcast market has changed to such a degree that public service broadcasting should no longer be delivered largely by one institution. Indeed, we should go further: there is no need for specific policy in relation to public service broadcasting. Niche providers are often better than the BBC at ensuring the broadcasting of good quality content to meet minority tastes. The fact that the market for broadcasting is now an international industry means that many artistic, educational and cultural programmes, which might not have been economic in the past, may now be economic and not need subsidy. Changes in technology mean that the current approach to financing, owning, and regulating the BBC is no longer tenable. There is nothing to stop the subscriber-owned mutual from having fully commercial or fully charitable arms for different purposes. This is a common approach for mutual and co-operatives and would also allow the exploitation of the overseas market and a wide array of joint ventures. The BBC should lose its legal privileges and be treated in the same way as all other news and media organisations for competition and other purposes.

The Morality of the Market Process and the Normative Implications of Catallactic Competition

Do markets make the conditions for moral action possible? To answer to this question, I will develop the normative implications of competition in the market process. As a value-free science, positive economics illustrates the economic consequences of different forms of competitive behavior for resource allocation and income distribution. In this paper, I explore the normative implications of competition under alternative institutional arrangements. I distinguish between catallactic competition, based upon an individual’s willingness and ability to pay for resources generated through trade and productive specialization, and non-catallactic competition, based upon legal status and privilege generated through political exchange. I argue that the normative implications of substituting market, or catallactic, competition for non-market, or non-catallactic, competition is to provide the conditions for human flourishing. Whereas catallactic competition tends to liberate the individual from arbitrary assignments of resources and income based on creed, gender, race, or legal status, non-cattalactic competition tends to confine an individual’s potential for self-actualization to such arbitrary assignments.

The Trajectory and Diaspora of Women Imprisonment: An Analysis

In Bangladesh, a very limited number of studies are prevalent to understand the condition of women prisoners. To know the real situation in this regard, we collected data by in-depth interviewing with 10 released women prisoners of two purposively selected jails (from Dhaka and Tangail district) from the two central districts of Bangladesh. For data collection and analysis for this study, we applied the qualitative method (case study). We analyzed the socio-economic factors behind their crime commission, their perception towards jail administration and the impact of their incarceration on their children. The findings revealed that lower socioeconomic condition can be a factor behind the women’s criminal outbreak. Lack of accommodation, proper food, drugs, prison atmosphere, staff's behavior, and employment opportunities are the major problems faced by the prisoners in jails. Their perception regarding jail administration was considerably adverse. We also found that mothers’ incarceration significantly influences their children regarding various short and long term exposure to behavioral problems. Moreover, children with incarcerated mothers are found to be more likely to suffer from mental health issues and deprived of the mainstream academic curriculum. Extensive separations from children have been shown to have an impact on incarcerated mothers as well. The legal rights and privileges for the women prisoners are in many cases absent in most of the cases analyzed here.

Use-Based Welfare: Property Experiments in Chicago, 1895–1935

Use-based welfare achieves redistribution by reallocating rights to use and benefit from idle resources, rather than through tax and transfer. How and why has this form of welfare provision emerged as an urban institution, and what affects whether it endures? This article compares projects to grant poor and unemployed Chicagoans access to land for gardens and small farms between 1895 and 1935, explaining how this form of social support came about through experiments with rules, norms, and forms of property. While social policy is typically understood as emerging through the realization of rights to public support, use-based welfare turns instead on efforts to create a legal privilege for the needy to use idle resources. During the Progressive Era and the Great Depression, this form of relief was pitched as both an alternative and a complement to welfare based on tax and transfer. Yet efforts to establish it as a permanent institution repeatedly failed, due to implementation challenges, opposition from people committed to treating land and food as commodities, and the nonemergence of a social movement to defend land access. Recognizing the historical dynamics of use-based welfare offers a new perspective on the contemporary resurgence of urban farming as a strategy for addressing unemployment and poverty.

Ethical issues in legal practice

This article analyses the different regulations that affect legal practice in Europe nowadays and the implications derived from those regulations which have evolved significantly in the past decade, to the extent of changing relevant concepts and institutions of the legal profession, from professional secrecy (legal professional privilege or client attorney privilege) to independence of lawyers. It also focuses on the application and interpretation of those regulations by the competent operators, watchdogs, surveillance bodies, courts and judges and even parliamentary chambers, closing with a general reflection on the perception of the role of legal advisors in contemporary societies.

Legal privilege in EU competition law and the potential implications of Brexit

The status of legal advice provided by lawyers being protected by privilege in EU competition investigations has been the subject of much legal scrutiny in the past two decades. This article provides a recap of the current legal position in EU law, analyses how that position might change for UK qualified lawyers post-Brexit and also considers the position of advice provided by EEA qualified lawyers in English proceedings post-Brexit.

What gives them the right? Legal privilege and waivers of consent for research.

Waivers of informed consent for research participation are permitted in the United States under the Common Rule, the Health Insurance Portability and Accountability Act regulations, and the US Food and Drug Administration's Exception from Informed Consent rule for emergency research. We assess the novel question regarding what legal right researchers have to carry out research procedures on or about another person, be it experimental medical intervention, psychological or social manipulation, or invasion of privacy, without the permission of their subjects. Our analysis frames waivers of consent as a species of presumed consent, and we address the underlying empirical question of whether it is reasonable to believe that subjects from whom no consent is sought would in fact agree, if asked. A scoping review of what is known about participation and refusal rates in United States-based research suggests that a large minority, on average, do not agree to take part in research. Refusal rates vary widely. This suggests that, while researchers may assert the social utility of their studies are high enough to justify waivers, there is reason to suspect that many who would be enrolled under a waiver of consent would not want to be enrolled. We conclude that waivers should be rare and that institutional review boards and researchers must explicitly address study acceptability in the community at large and the target population of their proposed research.

The afterlife of Enlightened Absolutism: commemoration of Maria Theresa and Joseph II and the politics of liberal reform in nineteenth-century imperial Austria

ABSTRACTThis article sheds new light on the ways that the enlightened Habsburg rulers Maria Theresa and Joseph II were perceived in the Austrian political landscape of the 1860s, focusing on the liberal school reform bills of 1868 and 1869. In this period when State–Church relations emerged as a crucial political topic in Austria, the memory of Joseph II and his mother, who had first enforced state control over the Church as well as education, became a useful rhetorical instrument over policy legitimization. In the 1860s, the Austrian liberals claimed ideological continuity with Maria Theresa and Joseph II and used his name to attract historical depth in their aim of abolishing the Concordat of 1855, which had granted excessive legal and educational privileges to the Catholic Church. The advocates of the Concordat argued on the other hand that through this pact with the Vatican, the historic rights of the Church against state oppression -crystallized in the figure of Joseph II- were defended. Thorough analysis of how nineteenth-century Austrians perceived their past can be valuable both as a study on the aftermath of Enlightened Absolutism and, more importantly, in assisting to comprehend the worldview and motivation of the mid-century liberal politics in imperial Austria.

The Right of Defence in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe

The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (‘ECN Directive’). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defence by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defence by NCAs of the EU Member States.

Legitimized fraud and the state-corporate criminology of food – a Spectrum-based theory

The role that food corporations have in determining our health and nutrition is concomitant with the power and influence that corporations exercise across all commercial sectors. These large, powerful, and often multinational entities – collectively referred to as Big Food – employ a robust array of strategies to advance the organizational interests associated with a seemingly paradoxical business model: securing the continuous and ever-growing consumption of food products increasingly associated with negative health outcomes. As this model proliferates globally, the implications of this contradiction warrant specific attention to the activities of Big Food corporations through a critical criminological framework. The pervasive and increasingly legitimized activity of Big Food relies on a legal, regulatory, and moral framework that allows for the relegation of all non-market oriented value systems to be secondary to a pro-corporatist ideological and moral superstructure. Whereas previous scholarship has contributed to an understanding of what occurs when profit-maximization values collide with – and then co-opt – public health and nutrition interests, the present study offers a spectrum-based theory to explain how various degrees of food fraud are systematically incentivized by the legal privileges of corporations and the hegemonic moral economy of neoliberal governance.

PUBLIC OPINION ON RELIGIOUS PRIVILEGES IN THE REPUBLICS OF THE NORTH CAUCASIAN FEDERAL DISTRICT OF THE RUSSIAN FEDERATION: ETHNICSOCIOLOGICAL ANALYSIS

The article is based on materials of ethnic-sociological research conducted in 2016 on the territory of the republic of the North Caucasus Federal District of the Russian Federation: Republic of North Ossetia-Alania, Chechen Republic, Karachay-Cherkess Republic, Republic of Ingushetia, Republic of Dagestan, Kabardino- Balkarian Republic. The survey involved 1200 respondents - 200 people from each republic. The article analyzes the question of the validity of granting state and legal privileges of religious organizations. Respondents were asked to express their opinion about granting the state privileges only to the Russian Orthodox Church; only Islam - the most popular religion in the religion; only three traditional religions of Russia (Orthodoxy, Islam, Buddhism); granting equal rights to all religions or depriving all religions of any privilege. The author comes to the conclusion about almost complete unanimity in the issues of granting religious privileges to the inhabitants of the region - regardless of their religious affiliation, people want equal rights for all religions, they are less willing to grant rights only for all religions. All groups unanimously denied the rights of the privileges of the Russian Orthodox Church, Islam was also unwilling to grant rights to all groups except Chechens, but this option is far inferior to equal treatment of the three traditional or all religions.

RELIGIOUS FREEDOM WITHOUT EQUALITY? RELIGIOUS MINORITIES AND THE ESTABLISHMENT OF RELIGION IN ARGENTINA

AbstractThe Argentine Constitution contains two provisions regarding church-state relations. The first one recognizes the right of all people to the free exercise of religion. The second one provides that the state must financially support the Catholic Church. Based on this latter clause, over the years a complex regulatory scheme has been developed that differentiates that church from all the other churches and religions. Those differences are addressed in this article. The author argues that the religious establishment does not depend only on how the state defines itself (e.g., through a declaration in the constitution), but also on the way in which it treats people based on their religion. If that treatment is unequal—for example, when there are legal privileges only to a single church—then there is a kind of establishment of religion. It has been claimed that the religious establishment is not itself incompatible with religious freedom. In arguing that religious minorities can hold a different opinion, the author offers a brief account of the problems faced by non-Catholic faith communities in Argentina because of the state's unequal treatment. Finally, the author analyzes whether the reasons given to justify the legal differences between religions are acceptable. Otherwise, it could be said that there is discrimination—at least, in a broad sense—against religious minorities. While this article focuses on the Argentine case, the issues addressed are relevant to any country dealing with the unequal treatment of people based on their religion.

The Right of Defense in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe

The article compares the application of the right of defense in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defense: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (“ECN Directive”). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defense by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defense by NCAs of the EU Member States.

Importance and Role of Honorary Consuls in Exercise of Consular Functions // Značaj i uloga počasnih konzula u obavljanju konzularnih funkcija

The article explores the role and importance of honorary consuls in the exercise of consular functions assigned to them. Their commitment to the strengthening of the inter-state cooperation in the non-political sphere and the support, protection and advice provided by the honorary consuls were emphasised as the historically grounded services rendered by this category of agents. It is, however, stressed that, although the contemporary ways of communication between different state and non-state actors happen without the use of diplomatic and consular mechanisms, the honorary consuls still find their place in the relations between the states and commercial, trade and other sorts of partners based in different states. The positive International Law, including the Vienna Convention on Consular Relations, as well as bilateral consular conventions, concluded between the interested parties, recognises the institutions of honorary consuls and possesses a certain set of rules that define the appointment and status of them. The article further explores the legal nature, privileges and immunities that are accorded to the honorary consuls and highlights the sets of usual and less usual consular functions that may be assigned to them by the sending state. Some exploration of both official and symbolic functions of the existence of the use of honorary consuls has been made in the article.

Alcogroup v Commission: More on Inspections and the Concept of a Reviewable Act

Case T-274/15, Alcogroup and Alcodis v Commission, 10 April 2018 The General Court (‘GC’) dismissed as inadmissible an action for annulment against a Commission inspection decision and a letter refusing to end investigative measures. In 2013, the Commission started to investigate the biofuels sector (the ‘first investigation’) leading to inspections being carried out at the premises of Alcogroup and Alcodis (together, the ‘Applicants’) in October 2014 (the ‘first inspection’). All emails and documents exchanged between the Applicants and their external counsel for the purpose of preparing their defence were labelled ‘legally privileged’. Simultaneously, the Commission launched an investigation in the bioethanol sector (the ‘second investigation’) and carried out inspections at the Applicants’ premises in March 2015 (the ‘second inspection’). Inspectors searched the Applicants’ IT environment and copied large series of documents. Documents labelled as being ‘legally privileged’ were saved in a separate folder for the purpose of determining their status later during the inspection. After a quick examination on the spot of some of these documents, the Commission set all of them aside as either irrelevant or potentially covered by legal professional privilege (‘LPP’). One document was, however, isolated and seized in a sealed envelope but ultimately returned to the Applicants, in its sealed envelope, on 16 April 2015. Consequently, not a single document claimed by the Applicants to be covered by LPP was eventually placed in the Commission’s case file.

Professor Ross Holland: The Special Committee Investigating Deaths Under Anaesthesia (SCIDUA) and his other contributions to anaesthesia.

As a young anaesthetic trainee in 1959 Ross Holland persuaded the Minister of Health in NSW, Australia, to establish SCIDUA, which by law required compulsory reporting for all deaths occurring during anaesthesia or up to 24 hours after cessation of the anaesthetic. The committee was multidisciplinary and, most importantly, had statutory privilege so that no discussions or findings were able to be subpoenaed for other legal investigations or case law. Holland was the foundation secretary of SCIDUA and later Chair. Apart from three years in the 1980s when there were political issues with legal privilege, the committee has met monthly and still meets. Holland was a major figure in antipodean anaesthesia, setting up in 1978 the clinical department at Westmead Hospital Sydney, then in 1987 becoming the foundation Professor to the Department of Anaesthesiology at the University of Hong Kong, and in 1990 foundation Professor and Chair, Department of Anaesthesia and Intensive Care at the University of Newcastle, NSW. Holland had strong historical interests and was responsible for founding the Society for the Preservation of Artefacts of Surgery and Medicine (SPASM) and its associated museum. He also served an important term as Dean of the Faculty of Anaesthetists, Royal Australasian College of Surgeons prior to that Faculty becoming independent as the Australian and New Zealand College of Anaesthetists (ANZCA). Professor Holland received many accolades for these activities during his life, which are noted. It is fitting to recognise his seminal contributions to patient safety over more than 50 years.

Legal professional privilege in corporate criminal investigations

This article considers two areas that arise in the context of corporate criminal investigations relating to claims of legal professional privilege: the extent to which litigation privilege may attach to communications made in the context of such investigations and the difficulty of identifying the client for the purposes of legal advice privilege. These issues are of particular significance where a company is or may be the subject of an investigation by specialist prosecuting authorities, such as the Serious Fraud Office. We identify the policy considerations justifying litigation privilege and whether they continue to explain the current ambit of the privilege. With particular reference to the extent to which the privilege is capable of attaching to communications made for the purpose of working towards a potential settlement, we consider how the constraints upon its ambit operate in the context of corporate criminal investigations. In relation to legal advice privilege, we demonstrate that it is possible to give a coherent explanation of the jurisprudence in this area which, while accepting that decisions are fact-specific, should enable corporations and the courts to identify the client within the corporation with a greater degree of confidence.