The European Economy Since World War II 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.

Education by Degrees : The Bachelor’s Degree is Winning

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?”

Citizendium Editor-Based Citizens’ Compendium to Compete with Wikipedia

Via Candace Lombardi at ZDNet we learn that Citizendium, an acronym for this “Citizens’ Compendium of Everything”, is set to compete with Wikipedia as a wiki-based alphabetized storehouse of knowledge. Citizendium was started by Larry Sanger, who was involved in the founding of Wikipedia.

Citizendium will be governed by an editorial board and will be open only to contributors who post under their real name in order to encourage personal accountability for posted materials. Contributors will be reviewed by “CZ Constables”, volunteers who are required to have a bachelor’s degree [ one of every four US adults, e.g., has such a degree] and be “at least 25 years old.” Citizendium is starting out inter alia by taking Wikipedia articles and cleaning them up. It all looks quite complicated and time-consuming so that we imagine that the main people that Citizendium may initially attract will be people who are already authors at Wikipedia. Still, Citizendium wants to go beyond that stage.

Citizendium writes:

“We also want to create a new sort of online community. We welcome experts as well as the general public; we will be built not by top-down orders but as and where contributors wish to work; and we will be organized as a republic governed by a rule of law. This last means that there will be no “dictators,” but a regularly changing group of people tasked to manage a public trust in conformity with a relatively stable code of rules. It also means that we will have very little tolerance for the sort of immature disruption and abuse that plagues so many other Internet communities.” [emphasis added by LawPundit]

Whether Citizendium will be successful remains to be seen, but as can be seen from the editorial attention required at Wikipedia against disruptions and abuses, Citizendium directly attacks the main weakness of Wikipedia, which is its reliability. Citizendium will probably never replace the Wikipedia, which not only has quite a large head start, but which has an army of contributors who will be difficult to match and who will unlikely consent to being watched over by constables. However, if Citizendium establishes itself initially as the “clean” version of the Wikipedia for the entries that Citizendium posts, then they have a good chance of taking a good market share, since people such as I will look to them for Wikipedia articles which I plan to use and/or cite. Of course, if Citizendium also presents original material, then all the better.

Publications Authored or Co-Authored by Andis Kaulins – the Law Pundit

Andis Kaulins, the Law Pundit, is author of

Stars Stones and ScholarsHARDCOVER or SOFTCOVER
a pioneer study in the history of civilization. The book claims to decipher the megaliths as Neolithic border and landmark stones sighted (and sited) by prehistoric astronomy. The book is controversial, arguing that mainstream academic evaluation of archaeological evidence is faulty.

See the reviews ……….. megaliths
at Science Book Review and Amazon.

Andis Kaulins is also co-author of:

The Routledge
& Langenscheidt………..english/german law dictionary

German-English English-German

Dictionary of Business Commerce and Finance, now in its 3rd edition, 2007.

For other publications by Andis Kaulins see

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

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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.

More on the US Supreme Court Punitive Damages Tobacco Case : The Origin of Punitive Damages and Related Issues

This is an update to our previous posting on Phillip Morris USA v. Williams, No. 05-1256 (U.S. Feb. 20, 2007).

Mathias v. Accor Economy Lodging, Inc. and Motel 6

Typical for the egregious heights which punitive damage awards have reached is Judge Posner’s opinion in Mathias v. Accor Economy Lodging, Inc. and Motel 6, 347 F.3d 672 (7th Cir. 2003), where the Court upheld a compensatory award of $5000 against a wealthy corporate hotel chain ownership ($1.6 billion net worth) for not having fumigated a hotel known to have bedbugs – which had bitten the plaintiffs – and further upheld an additional award of $186,000 (!) in punitive damages [how many years does an average man have to work to earn that much money?] because the hotel chain owner wilfully used its corporate wealth to resist the lawsuit, as if defending against a lawsuit using aggressive lawful litigation tactics and employing one’s available resources to do so was a “punishable” act. It makes a very disturbing view of the adversary system of law to see that a defendant is punished for defending himself aggressively and to see the Court calling that defense “secondary reprehensability” in a tort case. Is the assertion of legal rights becoming a civilly “punishable” offense?

As written here, the total award of $191,000 was apparently calculated on the basis of $1000 per room for the hotel’s 191 rooms (!) Really, we expect more law and less of that kind of “tea leaf reading” when determining damages in American courts of law.

An additional absurd element in the “bedbug lawsuit” was the fact that such outrageous punitive damages were granted in a case for which the local health department should have “jurisdiction” and where the local health authorities should be coming in and coming down hard on health code violators and simply closing down hotels like this as also assessing severe fines if the health standards are not up to par. Nationwide, the enforcement of health code standards could never depend upon civil suits – rather, health standards are directly dependent on the enforcement of strong health standards by the regulatory authorities, who clearly failed their jobs in the instant case.

In that Motel 6 case we are by no means on the side of the bedbug infested hotel and its management or owners, nor do we understand why the Chicago health authorities were not aware of the problem, and if they were, why they had done nothing about it. We are against all of those wrongdoing and culpable parties. However, a civil suit and the imposition of punitive damages against the corporation per se is most certainly not the preferred or the right remedy at law because it imposes no sanction against the actual people who committed or are committing the civil wrongs. The law has more appropriate and more effective remedies, and these should be used.

As Posner writes, given the fact the bedbug problem in the hotel was known in advance by the hotel management and hotel owners, we have the law that:

“A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” 720 ILCS 5/12-5(a). This is a
misdemeanor, punishable by up to a year’s imprisonment or a fine of $2,500, or both. 720 ILCS 5/12-5(b); 730 ILCS 5/5-8-3(a)(1), 5/5-9-1(a)(2). (For the application of the reckless-conduct criminal statute to corporate officials, see Illinois v. Chicago Magnet Wire Corp., 534 N.E.2d 962, 963 (Ill. 1989).)

What the trial judge in the instant case should have done is to enlist the aid of the local prosecutor to bring criminal charges against the persons in the hotel management and ownership responsible for intentionally permitting a known bedbug problem to remain unresolved, for which a maximum of one year in jail would have faced those persons.

Giving away a few hundred thousand “write-off” corporate dollars as punitive damages to a pair of guests and their lawyers will have little or no impact on improving hotel and motel health and hygiene nationwide by hotel managers and owners, who can shrug off the dollars by simply passing the costs on to their customers. On the other hand, the threat of jail terms will make it clear to hotel management and ownership that intentional disregard of known health and hygiene dangers will lead to severe personal consequences for the wrongdoers. Legislation should so provide.

On the Origin of Punitive Damages

So why are the courts trying to deal with these simple problems by civil law actions and punitive damages, rather than relying on the better tools available to them? It all has to do with history.

The doctrine of punitive damages in written law originated about 4000 years ago in the Ancient Middle East in an era when the modern distinction between the criminal law (of the State) and the civil law (applicable to private persons) did not exist. In those days, the civil law thus understandably had a punitive component to serve as a retributive deterrent.

Kelly-Rose Garrity, in her Note, Whose Award Is It Anyway?: Implications of Awarding the Entire Sum of Punitive Damages to the State, Washburn Law Journal, Vol 45, p., 19 April 2006, writes inter alia as follows (footnotes omitted) concerning the origin and development of punitive damages:

The origin of punitive damages dates back to the Code of Hammurabi in 2000 B.C. [which] imposed “multiple damages”…. Multiple damages, like punitive damages, provided monetary payment in excess of what was necessary to compensate for the injured party’s actual harm. The Bible and the Hindu Code of Manu also imposed damages in excess of the amount necessary to compensate the victim.

[T]he American tradition of punitive damages developed from, and most closely resembles, the English tradition. English common law first permitted punitive damages in the thirteenth century; however, punitive damages were not explicitly recognized by the courts until the late-eighteenth century. Early English courts limited the availability of punitive damages to intentional tort cases involving oppression, malice, or gross fraud. Despite recognition, English common law struggled to define the purpose of punitive damages until the middle of the twentieth century. Today, English law only permits punitive damages in three narrow categories of cases.

Since the late-eighteenth century, American courts have acknowledged the availability of awarding damages beyond what is necessary to compensate the plaintiff. In 1851, the United States Supreme Court stated:

It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon the defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. [Day v. Woodworth, 54 U.S. (13 How.) 362, 371 (1851).]

Courts in the United States initially limited the categories of cases that warranted punitive damages, as well as the size of the awards. Until the middle of the twentieth century, American courts limited the availability of punitive damages to “a relatively small group of torts involving conscious and intentional harm inflicted by one person on another.”

The 1960s marked the beginning of an immense growth in the amount of punitive damages awarded and an expansion of the types of cases warranting punitive damages, both of which continue today. Most notably, product liability cases began to serve as a springboard to sizeable punitive damages awards. State legislatures also began to allow punitive damages for unintentional torts. Many jurisdictions expanded the conduct required to support a claim for punitive damages to include “willful, wanton, or gross misconduct.” As punitive damages became more available, the amount awarded also increased exponentially as compared to compensatory damages. Today, almost all states recognize punitive damages; however, the “‘dramatic increase’ in the incidence and size of punitive damages verdicts” has led to widespread legislative reform intended to curtail such awards.

Phillip Morris v. Williams Revisited (see Phillip Morris USA v. Williams)

Via the March Law@Stanford Newsletter for alumni and friends of Stanford Law School we looked at the February 21, 2007 Los Angeles Times article, Tobacco award overturned: The high court limits damages in a smoker’s lawsuit, saying firms can’t be punished for harm to outsiders, by Times Staff Writers David G. Savage and Molly Selvin, where they write:

Los Angeles lawyer Theodore J. Boutrous Jr., who represents Ford Motor Co. and other firms that are fighting large punitive verdicts, said the ruling would be very helpful to corporate defendants.

“This is very significant because this situation comes up all the time,” Boutrous said….

But a lawyer who worked on the suit against Philip Morris, a unit of Altria Group Inc., downplayed the effect.

The court’s opinion, said Robert Peck, a lawyer for the Center for Constitutional Litigation, said juries could punish companies for “reprehensible conduct,” and that could include the effect on others.

“This may require new jury instruction, and I don’t think the ultimate impact will change,” Peck said.
[links added by Law Pundit]

We definitely think that Boutrous represents the more realistic view of the future of punitive damages in American law. In our opinion, the writing on the wall is clear. Punitive damages have “peaked out”. Notwithstanding rather one-sided attempts by others to portray punitive damages as useful, Savage and Selvin observe the following recent developments:

[Jury awards in product liability and medical malpractice cases rose steeply [from 1992 to 2001] — by 287.9% and 70.4% respectively.

The reason for this explosion of damage awards in those cases is surely grounded in “soak the rich” sympathies such as pointed to e.g. in argumentation in an amicus brief filed in Williams by a group of law professors and scholars, who claim that “American juries render punitive damages competently and responsibly and in a manner similar to decisions of experienced trial judges” which can hardly be true (unless trial judges be equally incompetent), given the tremendous rate at which jury awards are reduced on appeal. We quote from that amicus brief:

Some studies have found that the wealth of the defendant is correlated with the size of the punitive award. This should not be surprising, nor inappropriate. In 1869, the Maine Supreme Judicial Court in Goddard v. Grand Trunk Railway concluded that large punitive damages against a corporation served an “impressive lesson.”

Despite the obvious logic of making the wealthy pay more to achieve commensurate punishment, research indicates that jurors take defendant wealth into account in a responsible way rather than in the irresponsible way that critics of juries often attribute to them. Hans conducted systematic, in-depth interviews with jurors who had recently decided cases involving business corporation defendants and rendered punitive awards. The interviews revealed that juries took the wealth of the corporation into account, but they did not do so casually. [! LawPundit has added the emphasis out of astonishment] Jurors viewed larger corporations as capable of paying more than smaller corporations, but at the same time did not want to excessively harm them financially. Hans concluded that “[j]urors’ remarks reflect concern about emptying a corporate defendant’s pockets, ruining a business through high awards. Other comments indicate that jurors in punitive damage cases consider the deterrent impact of an award.”

The desire to punish reprehensible behavior commensurate with harm or potential harm appears to be the primary, indeed, the controlling motive, behind jury awards of punitive damages….

Sebok has shown that in the nineteenth-century the primary function of punitive damages was for punishment and vindication. [emphasis added by LawPundit]

What is astonshing to this author is that this kind of argumentation is found in e.g. an amicus brief submitted by a collection of presumably modern persons in charge of educating the next generations of law professionals in the United States. What kind of outdated law is being taught in the law schools of the United States today? As we have noted at this LawPundit posting, Europe has no punitive damages – you have to prove the harm done.

Here are our questions for those who support punitive damages:

  • What is the difference between civil law and criminal law? historically, in practice and theory? To what degree are exemplary damages primitive vestiges of a long past era? See in this regard e.g. Damages. Exemplary Damages. Liability of a Corporation for Punitive Damages for the Tort of an Agent, Harvard Law Review, Vol. 33, No. 1 (Nov., 1919), pp. 111-112; John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models. And What Can Be Done about It, Yale Law Journal, Vol. 101, No. 8, June, 1992, Symposium: Punishment, pp. 1875-1893; Adam M. Gershowitz, The Supreme Court’s Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, Virginia Law Review, Vol. 86, No. 6 (Sep., 2000), pp. 1249-1302.
  • Michael Abramowitz writes in On the Alienability of Legal Claims, Yale Law Journal, Vol. 114, No.4, that “A public prosecutor must act in the best interests of society and not for the sole purpose of maximizing penalties.” To what degree does this difference between criminal and civil law limit the use of the civil law for punishment and retribution?
  • What is the primary role of the criminal law? punishment? retribution? specific and/or general deterrence?
  • What empirical evidence exists for the actual effectiveness of civil punishments or deterrents? Do we have ANY evidence that this works?
  • What is the primary role of the civil law? to settle disputes between private legal persons? restitution of damages? compensation of injuries? reparation of wrongs? what about matters beyond compensation??? to insure compliance with the law? to insure compliance with obligations? to regulate behavior? whose compliance? whose obligations? and whose behavior?
  • Is there any basis in the United States Constitution to support the use of the civil law as a means for private persons to exercise primitive retribution, vengeance or revenge?
  • Is there any basis in the United States Constitution to support the use of the civil law as a “private” deterrent of any particular challenged behavior?
  • Outside of the criminal law, what is the legal justification for using monetary penalties in civil law cases to punish behavior?
  • Is there any basis in the United States Constitution to support the use of the civil law to punish challenged behavior? How does that square with the Founders’ intentions?
  • If it is argued that the civil law can be used for purposes generally reserved to the criminal law, such as punishment and retribution, then how are the traditional protections accorded to the accused in criminal law trials to be guaranteed to defendants in the civil law? what about mens rea? standards of proof for elements of a crime? rules for the submission of evidence? what about the punishment fitting the crime? what about sentencing? etc.
  • If a view is taken that the civil law should be used to punish and/or deter individual or institutional behavior, then what is the legal basis and constitutional authority for using “money” damages as the standard of punishment or deterrence? and not some other punishment(s)? e.g. revocation of the incorporation of corporations, rescission of contracts, invalidation of patents and copyrights, limitations on the right to do business, etc.
  • If money damages are invoked as the punishment, then what possible reason is there in law or logic to award those damages to a claimant who also receives full compensatory damages for his or her injury? Why are those damages not awarded, e.g., to charities or other non-profit institutions, rather than to the claimant? Why is punishment defined in terms of awarding damages to a private claimant, who thereby “profits” from a civil wrong already compensated?
  • For what reason in law or logic should civil trials involving punitive damages be determined by juries having no expertise in the matters being decided? The whole idea of juries was trial by “peers”. Do jury trials today abide by that principle?
  • How can punishment and deterrence be used as the rationale to assess punitive damages against a corporation whose management and/or shareholders may be different from those who prevailed at the time of the wrong? In some circumstances, those who actually profited monetarily from the wrong are completely exculpated and those who happen to manage and/or own the corporation at the time of the suit and/or judgment are punished.
  • To what degree are the Constitutional provisions on Due Process and Equal Protection of the Laws violated by civil judgments which impose punitive damages based upon the wealth of the defendant rather than upon the wrong allegedly committed? How – constitutionally – can one justify any award of damages (money or otherwise) imposed as punishment, retribution or deterrence, which award is then given as a representative gift (?) to a private claimant who is already being compensated for the actual wrong inflicted?

Extreme Sports : Skiing Cross Country Across Finland Border to Border (Rajalta Rajalle-Hiihto) from Russia to Sweden

Have you ever imagined seeing a herd of reindeer crossing your ski trail? Now THAT is a unique and unforgettable experience.

That is what happened a few days ago to one of our friends (BB2 2007), who just finished participation in one of most unusual extreme sports offered on our planet, the annual international Border to Border (Rajalta Rajalle-Hiihto) literal “cross country” ski event across the country of Finland from the border of Russia to the border of Sweden on a route skirting the Arctic Circle (KuusamoTaivalkoskiPudasjärviRanuaKeminmaaTornio).

This tour has been described by Cross Country Skier as “a week-long odyssey in which marathon distances become a lifestyle“.

The ca. 440 kilometers (ca. 275 miles) of the ski route are covered in 7 days with daily cross-country skiing distances of anywhere from ca. 44 to 78 kilometers (on a “non-competitive” basis) as fixed variously by the organizers, with the difficulty of – and time required for – each daily ski stage being greatly dependent on the weather.

The Border to Border ski tour is an organized event for experienced and hardened ski tourists involving 7 straight days of up to 50 miles per day of physically demanding skiing. Cross Country Skier even writes: “This is a vacation that requires months of advance training“, although persons not highly trained have managed this tour. Still, training is highly recommended so that one does not have to give up because untrained joints in the legs, arms or wrists are strained or because blisters on soft skin not hardened by experience may make further progress difficult. The right equipment and clothing for temperatures below freezing are also essential, especially for the feet.

Travel by bus, food and lodging are provided – for which reason participation involves registration and payment of substantial charges, including payment of a small deposit upon registration for the tour. See e.g. the tour prices charged by Nordic Saga Tours Sports & Adventure in Edmonds, Washington, USA or Schulz Aktiv Reisen in Dresden, Germany. Still, costs are kept as low as possible by the fact that the organization is done through 6 Finnish municipalities and nearly 200 volunteer workers. Otherwise it would probably be impossible to run this kind of an adventure ski tour at an affordable price.

Very nice to very simple accommodations are provided in hotels, huts, youth hostels and schools. A sleeping bag is required, but this and other belongings including extra and very necessary clothes are transported along the ski route by bus. Because of the sometimes close accomodations (many persons sleeping and perhaps snoring on the floor of a school in sleeping bags in more remote locations), earplugs may be recommended.

Interested persons should read carefully the general requirements listed at Rajalta Rajall-Hiihto, the Border to Border home website. And, for persons not accustomed to the extraordinary skiers of every age out there, including seniors . . . as noted at Cross Country Skier: “Just prepare your ego to be passed on the trail by some 70-year-old Finnish lady.

The ski-trail track (loipe) is marked (groomed) by snowmobiles and a snowmobile follows the last skier in each group to make sure no one is lost, while participants for safety reasons carry mobile (cell) phones. Periodic way stations at appropriate intervals for food and drink along the way are manned by volunteers, who are residents of the region. There is a possibility for skiers to take a bus rather than to ski a segment if the skiing becomes difficult for whatever reason.

Border to Border traditionally takes place each year in the first half of March and registration to participate in one of the 4 tour groups of maximally 100 skiers per group must be made by December 31 of the preceding year, for example, by 31 December 2007 for the 2008 tour (experience indicates that registrations should already be in by June to be sure of getting a spot).

Four tour groups are scheduled for 2008 and given below (for 2009 and 2010 see

The Year 2008 Border to Border group ski tours
March 6 to March 12
March 7 to March 13
March 8 to March 14
March 9 to March 15

As written by Border to Border guide Jaakko Heikkinen:

The Border to Border ski tour has established its position as a major ski and tourism event in northern Finland.

The home page of the Border to Border tour is found in Finnish and English language at Rajalta Rajalle Hiihto

Other interesting links involving Border to Border are:

Cross Country Skier – Finland from Border to Border (2003)

Skiing across Finland (2004)
by JoAnn Hanowski at and Nordic Skiing Magazine

Skiing in Lapland
by Olaf Bochmann of Ames, Iowa

Border to Border: 440 kilómetros esquiando por tierras de Santa Klaus
from Antonio León García, Spain (2004)

Finnish Tourist Board

Rajalte-Rajalle : ein Skilauf quer durch Finnland (2005 – in German, auf deutsch, von Andrea Blüthner)

Århus Skiklub – Dagbog fra “Border to Border”

The Key to Great Wealth and Riches

Ah, the private cars of the billionaires….

We knew it.

Now we have found proof that we are in good company. See

Fabulous wealth and great riches are of course the result of prudence, frugality and the wise handling of money and investments, presuming you have something to start out with.

You do not spend YOUR money to become wealthy but rather get the other guy to spend HIS money – preferably to buy YOUR products at a large profit to YOU.

One just has to remember that everything has a price, including wealth.

The Legal System of the European Union (EU 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.

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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.

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,, and
by John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc., 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.