Complaints against higher education establishments – an evaluation of recent reform

As a result of the Higher Education Act 2004, the Office of the Independent Adjudicator (OIA) was established to deal with student complaints against universities. This reform was essential for various reasons including human rights legislation compliance and disparity between universities established by royal charter and post-1992 universities (former polytechnics). However, it is arguable that the new system is ill conceived and not performing the required function. As we are all obliged to ensure students are receiving the required pastoral care, this issue has significant and potentially far reaching impact on our practice.     

Protecting Free Speech and Academic Freedom in Universities

Restrictions on speaking events in universities have been created both by recent student‐led efforts at ‘no‐platforming’ and by Part 5 of the Counter‐terrorism and Security Act 2015 which placed aspects of the government's Prevent strategy on a statutory basis. The statutory Prevent duty in universities includes, under the accompanying Guidance, curbing or monitoring events that could have an impact in drawing persons into terrorism. This article places the combined impact of Part 5 and student‐led curbs on campus speech in context by juxtaposing pre‐existing restrictions with the various free speech duties of universities. Focusing on speaking events, it evaluates the resulting state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre‐emptive strikes against some campus‐linked speech articulating non‐mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.     

Academic judgement,the university Visitor and the Human Rights Act 1998

Students have proved increasingly willing to challenge academic judgements in court, and the passage into law of the Human Rights Act 1998 is likely to have a major bearing on future challenges. The Act will make it unlawful for a public authority (including both a university and the courts) to act in a way which is incompatible with many of the provisions in the European Convention on Human Rights (and the Protocols attaching thereto). It will also permit a victim of such unlawfulness to bring proceedings in an appropriate court or tribunal, whether in the High Court as part of an application for judicial review or as an ordinary civil action for negligence or breach of contract. The court will have the power to grant whatever remedy it considers to be just and equitable, including an award of damages where it feels such an award to be appropriate. This could have significant consequences for the use of the Visitor in chartered universities as the final arbiter in disputes over academic judgements. For the Visitor does not conduct hearings in public and often fails to follow any recognised procedure. It may even be doubted whether the Visitor can be said to be truly independent of the institution against whose decision the student is appealing. In future, therefore, universities may have to be prepared to justify any marks awarded in the public forum of the courtroom.     

Student health insurance coverage. Final rule

This final rule establishes requirements for student health insurance coverage under the Public Health Service (PHS) Act and the Patient Protection and Affordable Care Act (Affordable Care Act). The final rule defines "student health insurance coverage" as a type of individual health insurance coverage, and specifies that certain PHS Act requirements are inapplicable to this type of individual health insurance coverage. This final rule also amends the medical loss ratio and annual limits requirements for student health insurance coverage under the PHS Act.     

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.     

美国公立高校学生纪律处分程序制度及其启示——以加州大学伯克利分校为例

美国公立高校处分学生时有遵循正当程序的义务,各高校普遍建立了完善的学生纪律处分程序制度。处分过程保障当事学生与师生代表的参与,处分机构民主性与中立性强,行政色彩很淡。正当程序保护的重心是处分决定的最初作出过程,校内申诉作为救济手段只是用来"拾遗补缺",学生无正当理由不能提起。美国相关程序突出了学生权利保护的价值倾向,但并没有走向过于司法化,且关注学术违纪行为的特殊性,对我国高校有重要借鉴意义。     

Recidivism Among Young Males Sentenced to Prison and Youth Custody

In 1999, Sweden introduced a new Act focused on young persons aged 15–17 who commit serious offences. The object of the Act was to replace prison sentences with a new sanction in the form of youth custody, which would involve a placement in a special approved home. This study constitutes a follow-up comparison of criminal recidivism among young males sentenced to prison prior to the introduction of the Youth Custody Act (1991–1998) and young males sentenced to youth custody following the introduction of the Act (1999–2003). The study shows that the sanction has not only been used as a replacement for prison sentences, but has also led to an expansion in custodial sentencing in the form of ‘net-widening’. There has also been a substantial increase in the length of custodial sentences awarded in connection with the new sanction. A comparison with the youth sanction in Denmark raises questions about the consequences of having expanded the group of youths sentenced to a custodial sanction in Sweden, and of the increased length of the custodial sentences to which this group is subjected.     

Redeploying Bayh-Dole: beyond Merely doing good to optimizing the potential in results of taxpayer-funded research

Opinions about the Bayh-Dole Act of 1980 and its implementation by US universities can depend on whether one views the Act as a series of tactics that are ends in themselves or as a policy declaration designed to protect the public against nonuse of taxpayer-funded discoveries and encourage their commercialization, utilization, and public availability. Those views appear to influence how universities and their leaders measure performance and define success, identify and allocate resources, approach transfer strategies, and negotiate terms and apportion risks relative to those terms. Those who view the Act as tactical tend to obscure the broader policy objectives which can result in substantial amounts of university research that is “never commercialized” (President’s Council of Advisors 2003), “restrained” (Schacht 2010b), and “left unused and unapplied” (Seipman in Univ Dayt Law Rev 30:209–243, 2004). Society then is deprived of the new products, services, approaches and experiences that can stimulate economic growth and advance human welfare. These and other consequences demand evaluations and assessments of university practices and behaviors and the extent to which they narrowly serve the Act’s tactics or more broadly serve its purposes of pursuing and maximizing the potential usefulness of the results of taxpayer-funded research. Too frequently, there seems to be a disconnect between federal policy and practices adopted or tolerated by universities and their leaders to implement that policy.     

Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.     

中国物权法的意涵与时代特征

物权法在中国历经引进、否定、转向、曲折,最终实现复兴,它始终没有改变沿着中华民族的民富国强的这一方向而前进。2007年在中国共产党的领导下颁布的中国《物权法》在中国特色社会主义道路的巩固、中国改革开放事业的更深层次的发展、中国人权保护事业的进步以及中国民法法典化的最终实现等方面彰显其十分重要的社会意义;同时,囿于诸多方面的原因,该法在一些内容的厘定上留有时代的烙印,带有时代的特征。中国《物权法》的颁布,预示着中国的改革开放、人权保护、民法典的制定乃至于中国特色社会主义道路的新的启程。中国《物权法》的这一积极效果与历史进步的取向是最主要的。该法中的落后规定或未作规定的事项,可以通过将来制定民法典、修改《物权法》或制定司法解释予以补充、克服和完善。     

Rules for the issuance of work report receipts, payment of benefits for trial work period service months after a fraud conviction, changes to the student earned income exclusion, and expansion of the reentitlement period for childhood disability benefits. Final rules

We are revising our rules to reflect and implement sections 202, 208, 420A, and 432 of the Social Security Protection Act of 2004 (the SSPA). Section 202 of the SSPA requires us to issue a receipt each time you or your representative report a change in your work activity or give us documentation of a change in your earnings if you receive benefits based on disability under title II or title XVI of the Social Security Act (the Act). Section 208 changes the way we pay benefits during the trial work period if you are convicted by a Federal court of fraudulently concealing your work activity. Section 420A changed the law to allow you to become reentitled to childhood disability benefits under title II at any time if your previous entitlement to childhood disability benefits was terminated because of the performance of substantial gainful activity. Section 432 changes the way we decide if you are eligible for the student earned income exclusion. We will also apply the student earned income exclusion when determining the countable income of an ineligible spouse or ineligible parent. We are also changing the SSI student policy to include home schooling as a form of regular school attendance.     

A time to regulate? Possible implications of European human rights law on abortion in Northern Ireland

Since the introduction of the Abortion Act 1967 the legality and status of abortion in Northern Ireland, being excluded from the provisions of the 1967 Act, has remained shrouded in uncertainty. In light of the introduction of the Human Rights Act 1998, this article will explore whether this inconsistency in the UK is in breach of the provisions laid down in Articles 8 and 14. It will be shown that while compelling arguments can be built under these provisions, perhaps the most persuasive arguments in favour of law reform are the inequities that the current legal regime has perpetuated.     

Performance-based funding and university research productivity: the moderating effect of university legitimacy

The introduction of competitive funding mechanisms in higher education is found to generally increase research productivity. However, the diversity within higher education systems may lead universities to behave in substantially different ways in response to the adoption of competitive funding criteria. In particular, we argue that the legitimacy of universities, defined as their level of recognition based on the adherence to socially accepted norms and expectations, is crucial in shaping their reaction. This paper investigates the change in research productivity experienced by Italian universities following the introduction of the first Performance-based Research Funding System (PRFS) in 2003, focusing on the moderating effect of university legitimacy. Using a sample of 75 universities observed during the period 1999–2011, we find that the introduction of PRFS leads to an increase in research productivity, and this increase is significantly more pronounced among more legitimate universities.     

高校学生管理法制化刍议

学生管理法制化是法治社会高校管理现代化的必然选择。这就要求从健全立法体系、规范管理行为、强化司法监督等方面做好学生管理法制化建设。然而,当前的学生管理还存在着法律观念淡漠、法律关系不明确、制约机制软弱等问题,不但有悖于法制精神,并且严重影响学生受教育权以及其他合法权利的实现。因此,必须确立学生的权利主体地位,建立尊重学生权益的学生管理机制。     

The University of Barchester,Coketown University,Ipswich Cathedral Choir School,Gas Street Comprehensive School and the European Convention on Human Rights: A link?

This article focuses on the European Convention on Human Rights (ECHR) and especially Article 6 entitled Right to a Fair and Public Hearing , all now fully incorporated into the UK via the Human Rights Act (HRA, 1997). This article discusses the implications for UK education institutions and the potential conflict with the exclusive jurisdiction of the Visitor in English chartered universities and colleges. Also discussed are UK schools, colleges and universities as 'public authorities' and 'emanations of the state', the creation of a Higher Education Ombudsman as a 'Super-Visitor' or 'HERO' (Higher Education Regulatory Office), the impact of HRA and ECHR less dramatic for schools than for universities (or at least for the Visitor function within them), and finally the coming three decades of legal uncertainty and fees for lawyers.     

《合同法》应当明确规定第三人利益合同

第三人利益合同在大陆法系和英美法系曾经表现出不同的发展轨迹。但在现代,两大法系都承认第三人利益合同存在的合理性。我国《合同法》中不存在关于第三人利益合同的一般规定。从贯彻意思自治原则,满足社会生活的实际需要出发,应当在《合同法》中明确规定第三人利益合同。     

Forecasting highway casualties: The British road safety act and a sense of déja vu

This paper reexamines the effect of the introduction of the British Road Safety Act of 1967. We construct a dynamic model relating monthly road casualties to road traffic, rainfall, and alcohol consumption, standardizing for the seasonality in the data. An intervention variable captures the effect of the Road Safety Act. The findings confirm Ross's earlier conclusion that the Road Safety Act significantly reduces casualties. However, we find that the Road Safety Act only accounts for 2.7 percent of the variance in road casualties, while miles-driven and rainfall account for 48.8 percent, and alcohol consumption explains 4.2 percent. Our model forecasts accurately for 24 months beyond December, 1972, the last month used for estimation.     

Traders of the lost ark — lectures and liability

It is easy to become inured to students' common perception that lectures are what universities provide — that the attendance at lectures is the total of a student's university experience. It is fruitless to deny that lectures, and sometimes tutorials, are the students' primary connection with the modern university. It would be interesting if the delivery of lectures was considered to be conduct in trade or commerce, capable of attracting the operation of consumer protection statutes, such as the Australian Trade Practices Act 1974 (Cth). This article will investigate several Australian cases which have considered some aspect of universities' liability for misleading conduct. It will also consider more a fundamental question — should universities be exposed to liability for this type of activity?     

An examination of Article 27 of the TRIPS Agreement in relation to the provisions on patentable subject matter under the PDA in Nigeria

Article 27 of the TRIPS Agreement remains the most controversial provision of the TRIPS Agreement. This provision on patentable subject matter stipulates what is permissible under patent law. This article evaluates the Patent and Designs Act by considering the extent of compliance of the Act as provided by the TRIPS Agreement. To this end, the paper proceeds in four parts excluding the introduction. In the first section, it situates the discussion within the general framework of Patent and Designs Act. The next section, turns to an examination of the compliancy of the law. Finally, in the fourth and fifth sections, it analyses the modifications necessary against the backdrop of the examination carried out in the previous section. In the concluding section, a summary of the compliance of the law in relation to the TRIPS Agreement is provided.     

Entrepreneurial universities in two European regions: a case study comparison

An entrepreneurial university is a natural incubator that tries to provide a supportive environment in which the university community can explore, evaluate and exploit ideas that could be transformed into social and economic entrepreneurial initiatives. Entrepreneurial universities are involved in partnerships, networks and other relationships to generate an umbrella for interaction, collaboration and co-operation. Rapid developments in science, the multidisciplinary nature of frontier research, legislative changes such as the Bayh–Dole Act and demands from business and society have shaped knowledge-based entrepreneurship within universities. Despite sharing similar historical backgrounds, economic conditions and cultural and social structures, entrepreneurial universities in most countries remain distinct from one another by their institutional arrangements, traditions and characteristics unique to each organization. Interestingly, no comparative research has been conducted to understand the similarities and differences of the conditioning factors and the outcomes/outputs of entrepreneurial universities in different regions that share similar social, economic and political conditions. This paper addresses this research deficit, adopting institutional economics and resource-based view. We compare entrepreneurial universities in two European regions (Spain and Ireland) using an in-depth qualitative approach based on multiple case studies (two Spanish universities and two Irish universities) between 2006 and 2010. The findings provide organizational practices and approaches relevant to the transformation process of other regional universities seeking to become entrepreneurial.