'Immunity', 'Privilege', and 'Right': British Trade Unions and the Language of Labour Law Reform

A continuing debate exists among labour lawyers in the United Kingdom as to the most appropriate legal framework for the regulation of collective industrial action. Many have argued that a change in legal form will not in itself afford greater protection to union activity. Through an analysis of the changing approach of the trade union movement to the issue of 'immunities' and 'rights' during the Thatcher period, this article seeks to demonstrate that adoption of the 'rights' discourse in fact offered considerable strategic advantages. In consequence, any analysis of this question should not overlook the significant political role played by language.     

Boycott,Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism

This article examines the role of cause lawyers in conflicted or authoritarian contexts where the chances of legal victory are often minimal. Drawing upon the literature on resistance, performance, memory studies, legal consciousness and the sociology of lawyers, the paper examines how cause lawyers challenge and subvert power. The paper first explores the tactics and strategies of cause lawyers who boycott legal proceedings and the relationship between such boycotts and broader political struggles, legitimacy and law. It then examines why and how cause lawyers engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’), transforming courts into sites of symbolic resistance, and using law as a form of memory work. The paper argues that boycott of and resistance through the courts can counter the use of law as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the rule of law.     

British Labour Relations in the 1980s: Learning to Live with the Law

Labour Law and Industrial Relations: Building on Kahn-Freund. Edited by Wedderburn, Lewis and Clark Kahn-Freund's Labour and the Law. 3rd edition by Davies and Freedland. Labour Law: Text and Materials. 2nd edition. By Davies and Freedland.     

Law, Finance, and Politics: The Case of India

The liberalization of India's economy since 1991 has brought with it considerable development of its financial markets and supporting legal institutions. An influential body of economic scholarship asserts that a country's "legal origin"—as a civilian or common law jurisdiction—plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. Rather, we suggest there are complementarities between (1) India's relative success in services and software; (2) the relative strength of its financial markets for outside equity, as opposed to outside debt; and (3) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political economy explanations have more traction in explaining the case of India than do theories based on "legal origins."     

The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.     

The mental health needs of incarcerated youth in British Columbia, Canada

The purpose of the study was to identify the current prevalence of mental disorders and mental health needs among incarcerated male and female youths in Canada, and to present these data in the context of rates found in other jurisdictions. One hundred forty male and 65 female incarcerated young offenders in British Columbia were screened with the Massachusetts Youth Screening Instrument Version 2 (MAYSI-2); provisional psychiatric diagnoses were assessed with the Diagnostic Interview Schedule for Children Version IV (DISC-IV); abuse history and aggressive symptoms of Conduct Disorder (CD) were coded from file information. Nearly all youths (91.9% of males and 100% of females) met the criteria for at least one mental disorder. Substance abuse and dependence disorders were highly prevalent (85.5% of males and 100% of females). Aggressive forms of CD were common (72.9% of males and 84.3% of females), as were exposure to physical abuse (60.8% of males and 54.3% of females) and sexual abuse (21.2% of males and 42.4% of females). Female youths had significantly higher odds of presenting with: (1) substance abuse/dependence disorders; (2) current suicide ideation; (3) sexual abuse; (4) PTSD; (5) symptoms of depression and anxiety; (6) Oppositional Defiant Disorder; and (7) multiple mental disorder diagnoses. Male youths had significantly higher odds of presenting with aggressive symptoms of CD. Overall, rates of mental disorder among this sample of serious and violent young offenders were higher than rates previously reported for incarcerated youths — both in Canada and in other jurisdictions.     

劳动刑法视野下劳动用工违法犯罪的惩治与预防机制对策

劳动用工违法犯罪的行为可以分为违法犯罪类型、单纯违法类型和模糊行为类型;劳动刑法应当以保障劳动密集型企业中底层劳动者的合法权益为重心,严厉惩治严重的劳动侵权犯罪;同时关注劳动者和用人单位双方利益的适度平衡;惩治和预防劳动用工违法犯罪,应当构建和完善劳动刑事处罚机制、宽严相济刑事政策机制、劳动法律体系衔接机制、司法协调救济机制等。     

The Economic Sociology of Labour Law

Drawing on the work of Max Weber, this article considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterizing the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio‐legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work.     

Strategic Lawsuits Against Public Participation: The British Columbia Experience

In 2001, the province of British Columbia (BC) became the first Canadian jurisdiction to enact anti-SLAPP legislation. While this legislation proved to be short lived, the BC experience around the issue of SLAPPs is instructive for law reformers both in Canada and beyond. In this article, the authors describe the legal and political processes that set the stage for the passage of the 2001 law, and its subsequent repeal. They also provide a detailed analysis and critique of key aspects of the debate surrounding the design of the law, and consider its efficacy in identifying, dismissing and deterring SLAPP lawsuits. They conclude with some observations with respect to the current status of the SLAPP issue in BC.     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.