Tuesday, December 04, 2007

Tomorrow's Europe and Major European Union EU Issues by Deliberative Polling


Via the Stanford News Service we were altered to an October 10, 2007 Stanford Report by Lisa Trei on Polling that puts Europe in one room that pointed to an experiment in deliberative polling for the EU held in Brussels in which 362 people from 27 EU countries, representing 21 different languages, for three days discussed the future of Europe in a program called "Tomorrow's Europe", as coordinated by Notre Europe and sponsored by Allianz-AGF as the organizational sponsor as well as by sponsors Thalys, Foundation Open Society Institute - a Soros Foundations Network, Renée B. Fisher Foundation, and the Hippocrene Foundation.

The reason for the experiment was explained by its conductor, Stanford Professor James S. Fishkin, as the phenomenon of a "democratic deficit" in the EU. Lisa Trei wrote in this regard:

"According to Fishkin, the EU has turned to deliberative polling to address a so-called "democratic deficit"—a perception of many Europeans that they cannot take part in EU-related debates because they are too complex and technical."


In Citizens resist expansion of European Union, support later retirement, Lisa Trei produces a summary of the results of that EU deliberative polling experiment "Tomorrow's Europe".

Topics covered were:

EU enlargement - EU citizens find that enlargement has been too fast and they are cautious about admitting more countries to the EU

National Sovereignty and qualified majority voting - EU citizens put their own national sovereignty first and were not ready for weighted systems of majority voting (i.e. qualified majority voting)

Pension systems and pension policies

The role of the EU in the world, including the problem of Russia, energy supply issues, and diplomatic relations

Wednesday, March 28, 2007

The European Economy Since 1945 and Beyond

Via CaryGEE,

Sheri Berman, of political science fame at Barnard College,

captivates our attention with a New York Times book review
of axe-bearing Berkeley economist Barry Eichengreen's

"The European Economy since 1945: Coordinated Capitalism and Beyond".

It is definitely a book which we are adding to our reading list, and not because we share with Eichengreen the experience of once having been a Fellow in Kiel, Germany.

We live in Europe and can applaud whole-heartedly Eichengreen's correct observation that capitalism alone is not enough to run a successful and effective capitalist system - you also have to have the modern institutions required to run such a system - and these are often sorely lacking in many parts of Europe.

The Bachelor's Degree is Coming to Europe

In our previous posting regarding Citizendium, we noted that contributors to Citizendium will be reviewed by "CZ Constables", volunteers who are required to have a bachelor's degree.

This requirement of a bachelor's degree by Citizendium mirrors the process of reform for "education by degrees" going on now throughout Europe (see the Bologna Process) and the rest of the world, where it used to be the case (and still often is) that every country had (has) its own "provincial" educational degree system, which caused (and causes) enormous unnecessary confusion internationally in determining the equivalence and accreditation of degrees.

Germany here is a good example, where the Bachelor's degree (and the subsequent Masters degree) are now replacing the antiquated German system of college degrees by the year 2010.

There is no doubt in our mind, as mandated by the demands of modern civilization, that the question "do you have a high school diploma" will be replaced in coming years with the question "do you have a bachelor's degree?"

Tuesday, March 20, 2007

European Law Monitor : A Subscription Service for Alerts, Legislation Tracking, Advice and Research

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Although the European Law Monitor website provides a good deal of "free" information, the European Law Monitor is intended to be a subscription service online which describes itself as:

"[A] not-for-profit, non-political, pan-European information service that aims to provide citizens and organisations across Europe with the ability to find and track new EU proposals, and provide a Europe wide platform for interested parties to exchange opinions and co-operate in presenting their views to European legislators."

There are various levels of subscription prices for alert and legislation tracking services:

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*Special concessionary rates apply for not-for-profits actively representing at EU level"

The rates applicable to "First Aid*" Legal Advice and Research are:

"£600 a year – this gives you 8 hours of legal advice, research and guidance per year (cost includes Silver Subscription).

£1000 a year – this gives you 20 hours of legal advice, research and guidance per year (Gold Subscription).

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A tailored package to suit NGOs or businesses providing an outsourced "virtual in-house" legal department can also be provided."

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"This service is a "First Aid" and research service only. European Law Monitor does not undertake representational work and therefore we are unable to represent you in courts and tribunals. The advice that we give is limited to general information on your rights and obligations in European Community law and its application to UK law based on the information you provide, and is not a substitute for the detailed specific advice and assistance of a lawyer acting for you."

The website legal research concept is most interesting and potentially useful to persons and organizations in legal or business fields involved in European Union matters.

Europe and Eurovision 2007 : And the Winner will be ... we think ... RUSSIA

Where does Europe begin and where does it end? Go East young man?

Political maps (e.g. Worldatlas.com) do not conform entirely to other maps of "Europe" which can also be drawn, for example, a map of the participant countries in the 52nd Eurovision Song Contest 2007.

The expansion of the Eurovision Song Contest can be seen over time at the individual maps on the following pages (from Wikipedia), which show the growth of modern Europe as a cultural unity on a broad "musical scale" - expanding Eastward:

1956 · 1957 · 1958 · 1959 · 1960 · 1961 · 1962 · 1963 · 1964 · 1965 · 1966 · 1967 · 1968 · 1969 · 1970 · 1971 · 1972 · 1973 · 1974 · 1975 · 1976 · 1977 · 1978 · 1979 · 1980 · 1981 · 1982 · 1983 · 1984 · 1985 · 1986 · 1987 · 1988 · 1989 · 1990 · 1991 · 1992 · 1993 · 1994 · 1995 · 1996 · 1997 · 1998 · 1999 · 2000 · 2001 · 2002 · 2003 · 2004 · 2005 · 2006 · 2007

Normal political relations among nations are often preceded by goodwill cooperation at the levels of economics, athletics, and inter-cultural exchange of music groups. The Eurovision Song Contest is one example of the "feeling" of European unity being created by music, culture and sports - rather than by politics.

The 52nd Eurovision Song Contest will be broadcast by YLE (English pages) from Helsinki's Hartwall Areena, with the semi-final being held on 10 May 2007 and the final on 12 May 2007. Sponsors of the event are TeliaSonera (Nordic and Baltic communications) as the "Presenting Partner" and Nobel Biocare as "Official Partner". Sponsors are important in enabling the presentation of cultural media events.

Forty-two (42) countries are participating in the 2007 Eurovision Song Contest.

Previews of the songs can be heard through links provided at Eurovision and Eurovision Nation.

And the Winner ... we think will be ... RUSSIA.

We try each year to predict in advance who might win and this year have listened to the songs now available online. There are already even betting odds online, e.g. at BetFair. Such odds are by no means infallible and we would never rely on them or advise others to do so, but they do give some idea of what songs may have the best chance of winning and which not.

We always try to be neutral in our judgments, trying not to have favorites in terms of countries. After all, this is MUSIC. What makes a "HIT" is the fact that it stands out from the mass of average compositions and performances by its unique character.

This year, we are particularly impressed by this music:

Russia has an excellent entry, with a very smart song title, Song #1, by Serebro, which is definitely bound to be a hit regardless of Eurovision by virtue of the topicality of its music (beat, rhythm), though we are not fans of its lyrics, which we find to be a bit too vulgar for our tastes, but then again, the masses love cheap vulgarity - this is RHYTHM as POP. Russia is the last symbol that Western Europe is mixing with the East - a process visible throughout Europe - and this song in its Eastern adaptation of Western music reflects that change. We think that the other countries have been waiting for Russia to come up with a Nr. 1 song and this is it.

Bulgaria - Elitsa Todorova & Stoyan Yankoulov - Voda (Water)
has a unique song and presentation that combines many fundamental elements of music that are common to many human cultures, cultures today in opposition, but perhaps tomorrow in union, it is a great beat that gets you out of your seat . . . refreshing, primordial - this is the song with the BEAT - the song that in our opinion will be best remembered from Eurovision 2007 in coming years)

Serbia - Marija Šerifović - Molitva (Prayer)
presents a truly melodious song, superbly sung - this is the song with the MELODY.

We also personally like the VIVACIOUS song
Ven a bailar conmigo (Come and Dance With Me) by Guri Schanke of Norway

and the operetta-like and ETHEREAL
Cvet z juga by Alenka Gotar (Flower of the Sun) of Slovenia
both of which accord to our general musical taste in listening.

We like the music of Ireland's They Can't Stop The Spring by Dervish, which mentions Latvia in its lyrics, though we doubt if a political song has much of a chance to win an Eurovision Song Contest. It is too POLITICAL.

We are by our origin of course partial to Latvia, but the Latvian song selection each year seems to be marked by a great deal of risk - which has on the one hand led Latvia to win the Eurovision Song Contest in 2002, but in some other years has led to some real voting disasters among the juries. This year Latvia presents a song entitled "This Night" (Questa Notte) and sung in Italian by 6 tenors (one of the tenors is Italian, having come to Latvia in 2001). The Latvian song can thus be described as - NOCTURNAL.

An Italian song will bring Latvia no Italian votes, as Italy is not participating in the Eurovision Song Contest this year at all, due to unfortunate internal politics - forgetting that MUSIC is paramount. Latvia is singing in Italian for Italy . . . .

Maybe Italy has been singing the wrong songs at Eurovision or sending the wrong people to Eurovision as participants .... The 2007 Greek participant in Eurovision, Christos Dantis, for example, used Italian Adriano Celentano's music in the past with great success (though not in Eurovision). We read the following about Italian music:

"Italy is a country of great culture that was developed during great many centuries and made an influence upon the cultures of the other nations. Italian music of different genres and trends are world famous. Classical operas composed by great Italian classical musicians have been performing till now in the most theaters of every country of the world. The modern music is no exception. Pop Italian music has the roots in 1960s, but the genre gained the popularity in 1980s with appearing great many famous male Italian pop singers such as Angelo Branduardi, Adriano Celentano, Al Bano, Toto Cutugno, Den Harrow, etc.

The main reason why Italian pop music became popular in other countries is its national style with roots in Mediterranean folklore music. Italian sound is full of energy, rhythmical melodies are easily memorized, beautiful voices and Italian lyrics make the songs original and unforgettable. Latin traditions and English style of music, as well as American rock-and-roll made an impact upon the development of Italian pop music. But Italian performers and musicians always try to find their unique styles."

For Italy not to compete in Eurovision is sad for Europe, and sad for Italy. It is a decision by Italy through which no one wins, and everyone loses. Decisions like that should be avoided.

There is of course a great deal of grumbling everywhere, not just in Italy, that neighboring nations vote in Eurovision song contests for neighboring nations when juries cast their musical ballots, but past song contests show clearly that when a song is really bad, no one votes for it, not even the neighboring nations. And when a song is really good, then almost everyone votes for it, regardless. But of course, there is still favoritism.

But who will then totally eliminate the blindness of provinciality and local favoritism from Europe? Eurovision? Not a chance. Europe is a very provincial place. We live here and we see this daily. This is not just a problem of the Eurovision Song Contest. Look at the institutions and funding of the European Union - are they also not marked by territorial nepotism and favoritism? Why should Italy - which itself is very provincial - expect Europe to be different than Italy itself is? This is unreasonable.

PROVINCIAL is also a description that can be appended to many of the songs that numerous countries have sent to the 2007 Eurovision Song Contest - and - because of that same provinciality, those countries can only lose. Only songs that somewhere within them have a UNIVERSAL appeal can gather enough votes from ALL other countries and win.

This is why France, for example, always loses in Eurovision, because it sings its perpetual chanson for France, but not for the world, and the 2007 French song for Eurovision is a perfect example of this, titled L'amour à la Française (A French kind of love).

It is this same perpetual French provinciality which through such things as the negation of the Constitution of the European Union, has greatly hurt Europe, which needs UNIVERSALITY.

When e.g. ABBA sang its songs - it sang for everyone - and that is what made ABBA popular throughout the world. We need more ABBA in Europe and less the French idea that some country or people have some kind of hold on "love", which they do not. LOVE belongs to all.

There are other factors as well in the musical equation. Music has also evolved in recent years due to the technological and media advancements possible in the digital age. "Techno" music may not be everyone's taste, but it is a logical musical evolution given the possibilities offered by modern music technology.

Similarly, purists may scorn the modern collaboration of groups such as the The Three Tenors, but Plácido Domingo, José Carreras and Luciano Pavarotti have by their trio made "serious music" far more popular than it ever was before.

Music, like the world - and mankind, is in constant evolution.

One mistake that many countries make in picking their Eurovision songs is to rely on old formulas that previously were successful, which worked "fresh" when first performed, but copies of which are "stale" and "worn out" when presented in subsequent competition years. Songs which catch the "pulse" of TODAY, which have a professional, lively original or unique presentation and which also conform to certain unwritten limits and demands of artistic decency and presentation will always be successful, and that was why Lordi won for Finland in Eurovision 2006. Even though their music was "hard rock" and even though there were monster costumes and a theatre's "camp" flair, it was all still quite "presentable" and "original".

The musical presentations of several countries in 2007 in our opinion clearly overstep the limits of normal artistic decency for this kind of musical TV programming and will surely be rewarded by juries with few or no points. The themes of horror and nuclear war are not music in our book, but its antithesis. We listen to music for relaxation, entertainment or positive stimulation, and not for simple extensions of the bad news and ideas that we see daily on the news channels.

This does not mean that we should revert to the age of innocence in our music. We see that the Swedish entry, The Worrying Kind by the Ark, is favored by some, but we think that this presentation is really for 12-year olds. We hope that it has no serious chance of winning the Eurovision Song Contest, which should aim at a more mature audience. We also definitely agree that a part of that song sounds very similar to Barry Mason's song Love grows (where my rosemary grows) as recorded by Edison Lighthouse in 1970.

How things have changed since the glorious days of ABBA.

Flying the Flag for You by Scooch, the highly-rated United Kingdom entry, is interesting because of its theme of air travel, especially for our pilot friends, but we have trouble finding any real beat, rhythm or melody in this song. This is an ephemeral song, heard today, gone tomorrow.

We think that the problem in the UK is one found in music everywhere, which is that postmodern music in the post-millennium era has yet to find a clear direction in the process of change. Much current music shows where we have been - but where are we going?

When that is in doubt - mankind traditionally turns to its roots.

We definitely think that the Bulgarian song Voda "Water" goes back to the origins of all living things, and perhaps that is where we should start looking for what is to come, both in Europe, as also the world - "pure water".

We think Russia will win the competition, but Voda "Water" is our favorite song in Eurovision 2007.

Sunday, March 04, 2007

European Union Legal System and Online Sources


The European Union is a democracy governed by the rule of law. The EU Treaties provide that "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States."

The EU legal portal is EUR-Lex, which provides free access to the EU law database in 20 languages.

EU Treaties and EU Law

The precise legal structure of the EU is complex due to the history of its development. That legal structure is also frustratingly difficult to document online because the European Union continuously changes the URLs of its website pages and its links, so that the picture about the European Union which emerges online is a mass of confusion that probably accurately reflects the EU reality. We update our links to the EU as we can, but it is often a hopeless task because there is often no logic in the EU online system, which has been a chaos for years.

Making things more difficult are improbables such as the fact that: "The Treaty of Amsterdam [1997] changed the articles of the Treaty on European Union [1992], identified by letters A to S, into numerical form." In other words, there is no continuity of articles of the main treaties.

When one compares the stability and clarity of the comparatively laconic United States Constitution over the last 200 years, the European Union treaties, barely 50 years old, are a hopeless mass of verbiage and pretentiousness. This mass confusion in the European Union treaties is typical for what happens when incompetent and posturing politicians and bureaucrats from many nations are given responsibility for formulating important legal matters of State which people trained in law should be reducing to clear and concise statements of law.

Primary sources for the legal system of the EU are the Treaties, especially those relating to the Community (EEC, EC) and to the Union (EU), which are found online in both original as well as consolidated form. Consolidated texts are useful as they reflect amendments made by later treaties. However, such consolidations have no force of law. Only the original treaty text is the actual law. One great advantage of the EU Constitution, if ratified, is its official consolidation of the current chaotic legal structure of the EU into one document (except for EURATOM). However, the way that things now stand, given the sabotage of that EU Constitution by France and the Netherlands, paradoxically the two countries receiving the most agricultural aid from the EU, ratification of that Constitution will probably never occur.

Without a constitution, the EU is governed - for the time being - by the community acquis (acquis communautaire), which is

" the body of common rights and obligations which bind all the Member States together within the European Union. It is constantly evolving and comprises:
· the content, principles and political objectives of the treaties;
· Community legislation and the case law of the Court of Justice;
· the declarations and resolutions adopted by the Union;
· measures relating to the common foreign and security policy;
· measures relating to justice and home affairs;
· international agreements concluded by the Community and those concluded by the Member States between themselves in the field of the Union's activities.
When further countries join the European Union, full compliance with the Community acquis is one of the requisites for accession.


There are four founding European Treaties: (see also EU Parliament fact sheets)
1. The Treaty of Paris (signed 1951, effective 1952 - see also the Schuman Plan) established the European Coal and Steel Community (ECSC), which began the process of European integration.
2 & 3. The Treaties of Rome (signed 1957, effective 1958) added two more communities, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM). The name of the EEC was changed to European Community (EC) by the Maastricht Treaty (see below), continuing the precedent of adding more confusion to the European picture were enough confusion already existed.
4. The Treaty on European Union, also known as the Maastricht Treaty (signed 1992, effective 1993) changed the name of the European Economic Community (EEC) to European Community (EC) and created a new entity called the European Union (EU). Note that the articles of the Maastricht Treaty are later renumbered by the Treaty of Amsterdam.

The following treaties made significant amendments to the treaty structure:

The Merger Treaty (signed 1965, effective 1967) provided for a single Commission and a single Council for the then three European Communities.

The Single European Act (SEA) (effective 1987) made modifications toward a single Internal Market.

The Treaty of Amsterdam (Amsterdam Treaty, signed 1997, effective 1999) amended and renumbered the EU and EC Treaties, appending consolidated versions of those treaties to the treaty. The articles of the EU Treaty, originally lettered A to S, were now ordered numerically.

The Treaty of Nice (signed 2001, effective 2003) enabled the enlargement of the EU.

People often refer to the THREE PILLARS of the European Union. These are:

The FIRST PILLAR. The first pillar is The Community, as set out in the Treaties and covering e.g. Union citizenship, Community policies, Economic and Monetary Union (i.e. a single market and a single currency).
The SECOND PILLAR. The second pillar is common foreign and security policy, which comes under Title V of the EU Treaty.
The THIRD PILLAR. The third pillar is police and judicial cooperation in criminal matters, which comes under Title VI of the EU Treaty.

These pillars are important designations for decisionmaking by the Council of the European Union. For matters involving the first pillar, a qualified majority vote of member governments is required for decision. For the second and third pillars, decisions are intergovernmental and Member States must reach a consensus, i.e. unanimity. For certain controversial matters, this distinction leads to differences among governments as to the assignment of those matters to a given pillar, since that assignment directly affects the majorities which have to be achieved to implement a particular decision.


Laws (Acts) of the European Union are initiated by the EU Commission and approved by codecision of both the Council of the European Union and the European Parliament (see Articles 251-254 of the EC Treaty and glossary, as also step-by-step and law-making flow chart).

Several types of secondary legislation also exist (Article 249 of the EC Treaty):

Regulations. "A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

Directives. "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

Decisions. "A decision shall be binding in its entirety upon those to whom it is addressed."

Recommendations and opinions. "Recommendations and opinions shall have no binding force."

General Law Searches

Search by EU Title or Text
Search by Subject Matter
Search by EU Date
Search by EU Institution
Search the Official Journal

The Official Journal (OJ) publishes the laws of the European Union, which have primacy over the national laws of its Member States. The OJ is published daily in 20 languages, consisting of the "L series" on Legislation and the "C series on Information, Preparatory Acts and Notices. Both series were introduced in 1968. The "C series" includes also documents published only digitally. Prior to 1968 there was only one series, sometimes referred to unofficially as the "B series" or as the "P series". The Supplement S to the OJ (which calls for tenders) is published in the TED database in concert with SIMAP, the gateway to EU public procurement.

Specific Legal Searches

Search by Number
for a EU Regulation, EU Directive, EU Decision, COM final, or European Court case by Year and Number
Search Treaties
Search Legislation
Search Preparatory Acts
Search Parliamentary Questions
Search Case-Law

European Court Reports

All case-law was published in the single-volume European Court Reports, which, after the recent creation of the Court of First Instance in 1989, now consists of three volumes: I) judgments and opinions of the Court of Justice and opinions of the Advocates-General, II) judgments of the Court of First Instance are published in Volume II, and III) there is a separate publication for the case-law in staff cases: Court of Justice (Sole volume until 1990; Volume I from 1990) Court of First Instance (Volume II from 1990) Staff Cases (from 1995)

To consult a procedure using an exact reference, one can search by procedure reference, by dossier reference and by document reference in the European Parliament, in the European Commission, in the Council of the Union, in other EU institutions, bodies and in legislative acts.

To obtain information on interinstitutional activities and related procedures, one can search by rapporteur, by committee of Parliament, or political group; by Commission Directorate-General, or Council concerned; by subject: by main topic or by words in title of topic; by family or type of procedure; by stage reached in procedure; by event date: actual or forecast; or by legal basis.

Historical Searches

Search by CELEX number

CELEX (Communitatis Europeae LEX) was the previous official fee-based legal database of the EC. It is no longer updated.

Saturday, March 03, 2007

Member States of the European Union : Heritage Foundation & WSJ Information on EU Countries : Click Flags for Economic Freedom Info

Information About Member States of the EU
from Heritage.Org and the WSJ

Map design copyright by LawPundit © 2007

Ireland FactsPortugal FactsUnited Kingdom FactsBelgium FactsFrance FactsSpain FactsDenmark FactsNetherlands FactsLuxembourg FactsAustria FactsSweden FactsGermany FactsSlovenia FactsItaly FactsMalta FactsGreece FactsPoland FactsCzech Republic FactsHungary FactsSlovakia FactsLithuania FactsFinland FactsEstonia FactsCyprus FactsLatvia Facts Click Flags for Information about EU Member States
The Index of Economic Freedom
Business Freedom , Trade Freedom, Fiscal Freedom, Freedom from Government, Monetary Freedom, Investment Freedom, Financial Freedom, Property Rights, Freedom from Corruption, Labor Freedom

Microsoft Threatened with New Fines by the European Commission: What American Law Should NOT Learn from European Law

We just posted at LawPundit about:

1) the fact that the European Commission some time ago fined Microsof for alleged anti-trust activities and that it had threatened to continue to fine Microsoft several million dollars a day until it opened up its proprietary software to European companies; and

2) the fact that the German government recently expressed great misgivings about the non-transparent non-democratic anonymous legislative and ruling role that the European Commission plays in the current government of Europe.

We now read today in Business Week in an article by Raf Casert out of Brussels, Belgium that Europe threatens new Microsoft fines through the European Commission.

One legal institution that no one in America ever wants to emulate is the European Commission, sadly designed on the basis of greatly inadequate French governmental models, which is an anonymous collection of serendipity bureaucrats that has taken to governing the European Union in a style reminiscent of the old oligarchies of Russia under the motto : we decide, you obey. Democracy is not a word that the European Commission understands and we predict that its non-democratic nature will be its downfall down the road, as we expect the European Parliament to ultimately take over many jobs that the European Commission does today.

As Casert writes, the rule of law does not appear to be a strength at the EU Commission:

"Ronald Cass, chairman of the Washington-based Center for the Rule of Law, said the EU "has taken another step toward turning successful businesses into regulated utilities."

"The Commission's new effort, if pursued, will undermine innovation and take Europe further away from the sort of predictable, stable, sensible legal rules that define the rule of law," Cass said." [link added by LawPundit]

And further....

"Microsoft is challenging the EU's 2004 antitrust ruling -- which resulted in the order to share code and information with rivals at reasonable prices -- at the EU's Court of First Instance. A decision is expected sometime this summer." [link added by LawPundit]

Whatever the decision of that Court, the problem of the European Commission remains, not only for foreign governments and corporations dealing with the European Union, but also for the Europeans themselves, who have created a monster that no one wants, and no one really knows what to do about, yet.

Crossposted to LawPundit.

US Supreme Court Vacates Absurd Punitive Damages Award in Oregon Tobacco Case : What American Law Should Learn from European Law

Perhaps Phillip Morris USA v. Williams, No. 05-1256 (U.S. Feb. 20, 2007) is the turning point. After changes in style, perhaps we have changes in substance.

Perhaps Phillip Morris USA v. Williams is the case that marks the hoped-for change from the hopelessly antiquated SCOTUS envisioned by such outdated theoreticians as Marjorie Cohn.

FINALLY, at long last, the United States Supreme Court for the first time in decades is saying that "enough is enough" of the absurd money judgments which pervade the American legal system and which have made American jurisprudence the laughing-stock of the legal world.

As written by Professor Stephen B. Presser at the Manhattan Institute for Policy Research:

"As the twenty-first century unfolds and commerce becomes more and more globalized, there is a need to harmonize the law of products liability across nations. So far, unfortunately, efforts at harmonization have too often been in the direction of reproducing the costly features of United States tort doctrines — doctrines that have imposed spiraling costs on American manufacturers. [emphasis added]

Even though the European Community recently altered its tort doctrines from a pure fault-based system to strict products liability, there are features of the European legal system that lessen the effects of even strict liability. Consequently, European courts are much less likely to hand out unpredictable and disproportionate damage judgments—unlike American courts, where ruinous verdicts are a potential in too many lawsuits.
[emphasis added]

Europe has escaped an American style litigation explosion by erecting barriers to excessive litigation. Such barriers include:

* Absence of contingent fees
* Loser pays winner’s attorney fees
* Discouragement of massive discovery filings
* Lower damage judgments
* Absence of punitive damages
* Non-use of juries in civil cases
* Lower expectations of damages
[emphasis added]

Unless similar barriers to excessive litigation are created in the U.S., American companies face an ongoing competitive disadvantage relative to European manufacturers who operate in a more predictable, less costly, and less litigious legal environment. In one case, probably typical, Dow Chemical Corporation estimates that it spends 100 times as much on litigation costs in the U.S. as opposed to Europe.

America prides itself on being the world’s pre-eminent economic superpower, but if American economic preeminence is to survive in a highly competitive global marketplace, there must be changes in the American legal system. We should seek to reproduce here some of the features of the European system of litigation. It is time, in short, to give American firms the same legal protections that European firms enjoy, rather than waiting for Europeans to harmonize their legal systems with their aberrant American cousins.
" [emphasis added]

As political centrists, we have been waiting for over a year now for a sign from the United States Supreme Court under new Chief Justice John Roberts and new Justice Samuel Alito that things are going to turn for the better in America's highest court.

Phillip Morris USA v. Williams gives us that hope. Absurd punitive damages judgments will be fewer as a result of this absolutely correct decision by the new Roberts-led United States Supreme Court.

It is a court burdened by the legacy of an ineffectual and inconsistent Rehnquist Court, whose main mark is "unfinished business" in a legal system left in turmoil, lagging far behind modern technological developments and unprepared judicially for the digital age. As noted by Joan Biskupic in USA Today:

"Rehnquist helped transform a bench preoccupied with the rights of the poor and disenfranchised into one that usually prefers to leave society's problems to elected legislators."

That conservative, hands-off Rehnquist strategy backfired for over three decades as the legislative qualifications of members of the United States Congress constantly dropped, with the percentage of law-trained representatives becoming ever smaller and necessary legislation becoming rarer and rarer. Additionally, the technological competence that is required in the modern age is simply not present in Congress, either in the legislators or in their staff:

"The United States Congress is increasingly called upon to legislate on a host of technologically complex matters. Unfortunately, relatively few of the 535 Senators and Representatives holding seats in Congress have technical backgrounds or have staff with technical qualifications."

We hold out little hope for the US Congress to improve on this score, since the populist popular election of Congressmen and Congresswomen by a largely uninformed and ignorant public - conditioned to stupidity by soap box television and news media geared to the lowest common denominator - will over the years inevitably lead to increasingly less competent people filling Congressional seats. (The decline of empires in this regard is thus quasi pre-programmed.)

Can the United States Supreme Court pick up the slack in the coming years?

What did the court decide in Williams? The US Supreme Court vacated the egregious punitive damages award in the Oregon tobacco case of Phillip Morris USA v. Williams, as Justice Breyer (age 68), who delivered the opinion of the Court, and Chief Justice Roberts (age 52) and Justices Kennedy (age 70), Souter (age 67) and Alito (age 56), joined in the 5-4 opinion. See here e.g. Robert Barnes at the Washington Post for details.

Justices Stevens (age 86), Ginsburg (age 74), Scalia (age 70) and Thomas dissented, none of these latter Justices apparently understanding the difference between civil and criminal law, and we can only hope that some of those Justices soon go into retirement. Justice John Paul Stevens will be 87 in April and he long ago should have retired. Justice Ginsburg turned 74 in March and Scalia is 70, but two centuries back in his constitutional originalist opinions. Except for Thomas, who often votes octogenerically with Scalia for reasons quagmired in past centuries, the opinions in this case again run pretty much along the lines of age, with the youngest Justices voting for the majority and the oldest Justices dissenting. We pointed to this age factor previously here at LawPundit as something which should be corrected in the future so that Justices and Judges face manadatory retirement age at 70. Period. No exceptions. They should go fishing and enjoy their retirement years rather than making critical decisions in a time which has passed them by.

For those of our readers who do not understand our tirades against the courts and the legislatures, we refer to a book by Professor Larry Kramer, a constitutional scholar who recently became the Dean of the Stanford Law School.

That book,
The People Themselves: Popular Constitutionalism and Judicial Review,New York, Oxford University Press, 2004, ISBN: 0-19-516918-2,
is reviewed in Law and Politics Book Review, Vol. 14 No.11 (November 2004), pp.916-926,
by John Michael Eden, Duke University School of Law, john.eden@law.duke.edu, and
by John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc. johnpryan@ameritech.net, where they write:

"It is in light of these baleful features of judicial supremacy that PEOPLE advocates an approach to judicial review that restricts the authority of the Supreme Court. This approach Kramer calls “departmental” or “coordinate” construction. The main virtue of coordinate construction is that the authoritativeness of any particular decision depends “on reactions from the other branches and, through them, from the public” (p.252). While it is unclear precisely how individual citizens are supposed to make their preferences known so that the “other branches” can check particular decisions rendered by the Court, PEOPLE suggests that citizens in the early republic, meaning the period from about 1760 to 1840, “had both a right and a responsibility to act when the ordinary legal process failed,” provided that those very citizens continue to “profess loyalty to the government” and follow the ordinary laws the legitimacy of which was not currently in dispute (p.25)."

We agree with Kramer on the fact that the authority of the Supreme Court (or any court for that matter) is constrained by their impression on us (and you, and everyone else) and our commentary at LawPundit proceeds in that spirit. When the courts commit great blunders and when things are not in order, we call them on it. And that is one element of what Kramer is talking about. WE are the governed, but to be governed in a democracy, we have to give our consent, and for our consent to exist, the RESULTS in the three government branches have to have some semblance of common sense and sanity. Otherewise, you have revolution - and that in part is what we are facing, for example, in the intellectual property law sector, where the institutions of government have been falling on their noses in regulating that area of law, so that a "free" law-free zone of sorts has developed which the law is going to have a difficult time in getting in its grasp again. Caveat emptor.

Crossposted to LawPundit.

MP3 Shows that America is being Trounced by Europe on the Corporate Battlefield

The MP3 Codec and its Licensing

MP3 is a codec, a standard for compression and decompression of music, developed in Germany by the Fraunhofer Institute.

The word CODEC is formed by the first letters of the words COmpression and DEComprression. MP3 is the short form for MPEG-1 Audio Layer 3. Wilson Yuen writes:

"MP3 is currently the most powerful algorithm in a series of audio encoding standards developed under the sponsorship of the Motion Picture Experts Group (MPEG) and formalized by the International Organization for Standardization (ISO)."

The right to license the MP3 codec is owned by the French company Thomson (mp3licensing).

The MP3 Codec is a Standard for Compressing and Decompressing Music Files

MP3 is similar to the much older JPEG standard for graphics, which makes files smaller by removing color information while attempting to retain as much of the original picture intact as possible. MP3 is a two-pass compression system, utilizing Huffman encoding in the second pass, and in the first pass primarily removing music information to make music files smaller than e.g. the original CD versions. The fact that MP3 files are up to 12 times smaller than the original uncompressed files - with minimal loss of music quality - has made the MP3 codec very popular.

MP3 and Similar Standards should not be Subject to Patentability

MP3 is in our opinion one prime example of the kind of "alleged" invention that should never have been granted a patent in the first place (see the MP3 patent discussion here), nor should the alleged technology behind such an invention in any manner be eligible for patent protection. MP3 is a standard - there could easily be others. It is nothing more than a particular method of compressing and decompressing information, applying generally known principles and methods.

The Methods of Compression and Decompression are Limited and Known

There are only a limited number of basic ways in which information can be compressed and decompressed - principally by reducing the information indexed and by better notation of repetition and redundancies. Why should a codec like that be subject to patenting?

Take this sentence as an example of a unit to be compressed:
MP3 is a compression and decompression codec to compress and decompress music files.

We can compress that sentence by just leaving out "compression and decompression", resulting in MP3 is a codec to compress and decompress files, without thus losing much meaning and we can reduce it further by better notation of the word "compress" which still appears twice in the remaining sentence, so that we could then write MP3 is a codec to c. and dec. files. Upon decompression, "c." would again be replaced by the word "compress".

To call a codec an invention stretches the definition of "invention" past logical limits because doing so prohibits others from utilizing similar AND obvious compression methods - which are limited in number by mathematics.

All digital information consists of 1's and 0's, so that any method that can more compactly describe those 1's and 0's is potentially useful for a codec. For example, if we have a picture of 10 lines, each 100 pixels long, and that picture is white for the first 9 lines but contains a black straight line the entire length of the 10th line, then we do not need to make a separate notation for each of these 1000 pixels. Rather, we can treat the first 900 pixels as ALL white (all zeroes) and the last 100 pixels as ALL black (all ones), so that our notation can be short "900 0's in 10 lines and 100 1's in 1 line". If we set our default value to "0" then "100 1's in line 10" is notation enough. The picture is thus compressed. The principle in music is the same. But this recognition is not "an invention".

Although the actual application of any given compression and decompression standard such as JPEG or MP3 is of course more complicated when dealing with large masses of photo or music information, that is fundamentally all there is to it. There is nothing magical about it that needs the protection of patents. MP3 removes musical information that is hard for humans to hear but which microphones pick up. When such information is removed, music files are much smaller.

General Principles of Shorthand were known prior to Christ

General principles of information compression and notation were known long before JPEGs or MP3s came into existence. Shorthand has long been used in writing in law by court reporters (NCRA) and Greek and Roman tachygraphy was known already before the days of Christ. Hebrew language was generally written without vowels, presumably as a form of shorthand. Compression is simply a form of shorthand.

The Machine Rendition of Voice and Music began with Bell and Edison

Limitations of writing systems for recording purposes led man to develop machines for reproducing the human voice and music, which culminated in Alexander Graham Bell's invention of the telephone and Thomas Alva Edison's invention of the phonograph. The patents awarded to Bell and Edison created empires which still thrive today.

AT&T's Patent-Based Monopoly remains Intact

One of the things that the political, corporate and legal establishment in the United States does not appear to appreciate is that patent monopolies, once granted, far outlive the actual duration of patents, and give the holders of those patents - on a silver platter - industrial empires which last centuries. The best example of that in Europe is the post monopoly of Thurn & Taxis, whose family, hundreds of years later, is still one of the wealthiest families in Europe.

Alexander Graham Bell's patents were challenged something like 600 times during his lifetime, but his patent-based monopoly could not be shaken and AT&T (later known as "Ma Bell") went on to control nearly the entire US telephone market, creating one of the most powerful monopolies of the modern business age.

The legal community in the United States appears to be overwhelmed by Ma Bell. The "trustbusters", not understanding that patents were at the root of Ma Bell's power, decided to break up America's biggest and most powerful corporation in 1974. The result has been the creation of a multi-headed hydra of "Baby Bells" which resulted from the break-up of AT&T who now threaten to join together into one great corporation with even greater powers than before. Ma Bell is still quite alive and kicking - patent monopolies, once granted, have a long life.

"Ma Bell Still Has You by the Bells"

One used to say that "Ma Bell Has You by the Calls" (non-native speakers who do not understand that joke should be aware of the American idiom "have someone by the balls").

Part of the Ma Bell legacy is found in the now spun-off Lucent Bell Labs of what is the French company, Alcatel-Lucent (Bell Labs was formerly AT&T Bell Laboratories viz. Bell Telephone Laboratories):

"At its peak, Bell Labs was the premier facility of its type, developing a wide range of revolutionary technologies, including radio astronomy, the transistor, the laser, information theory, the UNIX operating system, and the C programming language. There have been 6 Nobel Prizes awarded for work done at Bell Labs."

This 6-Nobel-Prize-producing former American laboratory is now owned by the French.

The Alcatel-Lucent Patents in the Patent Suit Against Microsoft

An American jury has just awarded the French company Alcatel-Lucent $1.5 billion for the patents below, to be paid by Microsoft (but of course, the bill is actually paid ultimately by the American consumer), and Alcatel-Lucent have numerous patent suits more in the pipeline against Microsoft.

Will French ultimately own Microsoft?

US Patent 5,341,457 - Abstract
Perceptual coding of audio signals
"A technique for the masking of quantizing noise in the coding of audio signals is adapted to include geometric interpolation between the thresholds for a tone masking noise and for noise masking a tone, in order to reduce use of bit-rate capability where it is not necessary for transparent or high quality. The technique is usable with the types of channel coding known as "noiseless" or Huffman coding and with variable radix packing. The stereophonic embodiment eliminates redundancies in the sum and difference signals, so that the stereo coding uses significantly less than twice the bit rate of the comparable monaural signal. The technique can be used both in transmission of signals and in recording for reproduction, particularly recording and reproduction of music. Compatibility with the ISDN transmission rates known as 1 B, 2 B and 3 B rates has been achieved."

One of the inventors of the above patent, James David Johnston, retired from AT&T and became an audio architect for Microsoft Corporation. See Perceptual Coding of Audio Signals - A Tutorial. Is that the root of the problem? Johnston is also the inventor of the following patent.

US Patent RE39080
Rate loop processor for perceptual encoder/decoder
This is a reissue application of U.S. Pat. No. 5,627,938 filed Sep. 22, 1994 as application Ser. No. 08/310,898 which is a continuation of application Ser. No. 07/844,811, filed on Mar. 2, 1992, now abandoned, which is a continuation-in-part of application Ser. No. 07/844,967 filed Feb. 28, 1992, now abandoned, which is a continuation of Ser. No. 07/292,598 filed Dec. 30, 1988 now abandoned.

"A method and apparatus for quantizing audio signals is disclosed which advantageously produces a quantized audio signal which can be encoded within an acceptable range. Advantageously, the quantizer uses a scale factor which is interpolated between a threshold based on the calculated threshold of hearing at a given frequency and the absolute threshold of hearing at the same frequency."

Those are the two patents for which a jury just awarded Alcatel-Lucent $1.5 billion. Not bad considering that Alcatel paid only about $11.5 billion for the entire company Lucent - and that was merely a stock deal, no cash at all. If Alcatel gets similar judgments on its other patent suits, its purchase will have been a STEAL, and we do emphasize the world steal. Lots of money flowing out of America into Parisian coffers.

At the same time, Alcatel-Lucent plans to cut 12500 jobs worldwide (12% in France) - which means more unemployed on the streets and more money for execs such as Patricia J. Russo, whose entire career is littered with thousands of people losing their jobs under her leadership.

European Commission Fines Microsoft

The European Commission found Microsoft to have engaged in anti-trust activities in Europe and fined it $357 million, threatening to continue to fine it several million dollars a day until it opens up its proprietary software to European companies. The European Commissioner for Competition, Neelie Kroes, who imposed the fines, was at the time on the board of directors of
.... Lucent.

France and Germany Seek to Force Apple to Open its iPod DRM

And how about Apple, which is being forced by France and Germany to open its iPod DRM?
Will Apple be another French company soon?

The European Strategy Against Corporate America

On the one hand, European companies are using the Alice in Wonderland US patent laws to relieve American corporations of billions of dollars of cash. On the other hand, European companies and the European Union are forcing American corporations to open their proprietary software to their European competitors and to dismantle their product protection in Europe for the benefit of European products.

Can it really be that corporate America does not understand what is going on?

Crossposted to LawPundit.

Tuesday, February 27, 2007

German Vice-Chancellor Muntefering Challenges Lawmaking and Presidential Selection Procedures in the European Union

The European Union has a very dubious system of lawmaking, whereby laws are drafted and proposed by the EU's super-bureaucratic 25000-employee European Commission, rather than by the elected European Parliament.

This has led to a terrible situation whereby the European Union has come to be governed day-to-day by this anonymous body, which is not only not democratically elected but which is following its own specific agenda without any meaningful contact to the wishes of the citizens of the EU Member States.

As reported by Mark Beunderman in the EU Observer, this situation has rightly become a thorn in the eye of Germany, which is one of the main funders of the EU without at the same time having much say about what the EU does. Germany's Vice-Chancellor Franz Muntefering is quoted as saying that:

"We should be asking ourselves the question who decides what is on the agenda in Europe. Only the [European] Commission? Something should change in this respect. More possibilities for political initiatives by the European Parliament would be good," Mr Muntefering, the second-highest member of the German government, told Sueddeutsche Zeitung over the weekend."
Muntefering also criticized the anonymous manner in which the European Commission president is chosen:

"[W]e should think further whether the current system can remain so anonymous and indirect. "

Muntefering is a practical man and not one given to simple speculation in the newspapers. Accordingly, we take his statements to be indicative of serious changes in the offing for the way that the European Union is governed. These changes may not take place immediately, but we are sure they are forthcoming to counteract a non-democratic EU Commission which has become more and more disliked as time goes on.

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