Can and Should Greenhouse Gases Be Regulated as Hazardous Air Pollutants under Clean Air Act Sec. 112?

This article poses three questions: (1) Can greenhouse gases be regulated under § 112 of the Clean Air Act? (2) If they were to be regulated in this way, what would the practical consequences be? (3) Should greenhouse gases be regulated this way? To summarize the offered answers: greenhouse gases can indeed be regulated under § 112; if they were to be regulated, the practical consequences would be substantial but potentially manageable; and whether or not they should be regulated in this way depends entirely on the nature and survival of the upcoming New Source Performance Standards under § 111(d). If § 111(d) regulation survives, the question of whether or not § 112 regulation could coexist arises, with the answer being in the affirmative albeit with potentially prohibitive difficulties. If § 111(d) regulation fails, § 112 regulation may serve as a regulatory last resort on which the Environmental Protection Agency may have to rely in order to seriously tackle the threat of climate change.     

Importing and exporting gametes and embryos under the Infertility Treatment Act 1995 (Vic): an unconstitutional restraint on free trade?

Since the introduction of the Infertility Treatment Act 1995 (Vic), it has been illegal to import into or export from Victoria a gamete or embryo outside the human body without the approval of the Infertility Treatment Authority. But is s 56 unconstitutional and therefore invalid by reason of contravening the freedom of interstate trade guarantee by s 92 of the Commonwealth Constitution? By exploring the nature and effect of s 56 this article demonstrates that s 56 may impose a "discriminatory" and "protectionist" burden that renders s 56 invalid.     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Social Citizenship,Housing Wealth and the Cost of Social Care: Is the Care Act 2014 ‘Fair'?

This article assesses the extent to which it is ‘fair’ for the government to require owner‐occupiers to draw on the equity accumulated in their home to fund their social care costs. The question is stimulated by the report of the Commission on Funding of Care and Support, Fairer Care Funding (the Dilnot Commission) and the subsequent Care Act 2014. The enquiry is located within the framework of social citizenship and the new social contract. It argues that the individualistic, contractarian approach, exemplified by the Dilnot Commission and reflected in the Act, raises questions when considered from the perspective of intergenerational fairness. We argue that our concerns with the Act could be addressed by inculcating an expectation of drawing on housing wealth to fund older age: a policy of asset‐based welfare.     

Is the Japanese diet consensual?

The institutional design of the Japanese Diet is commonly believed to necessitate interparty accommodation and to make the legislative process more ‘viscous’ than it appears. This common belief about the Diet is challenged by examining the Constitution, the Diet Law, the House Rules, and parliamentary practices with special attention to agenda setting procedures. It is argued that the ‘unanimity norm’ is less binding than commonly recognised. By applying the criteria proposed by Döring, this paper compares the Diet with western European parliaments, and shows that it ranks relatively high in terms of the ruling majority's ability to control the legislative agenda. Although the post‐war Diet is modelled on the legislative process in the US Congress, it is critically important to keep in mind that the constitutional principle of the Diet follows the fusion of power in the British parliament. The picture that emerges from the analysis is in strong contrast to the traditional image of the Japanese Diet and sheds new light on the majoritarian foundation of the Diet.     

Are insurance companies liable under the Americans with Disabilities Act?

Federal courts have split on the question of the applicability of the Americans with Disabilities Act to insurance coverage decisions that insurance companies make on the basis of disability; they have similarly split on other issues pertaining to the scope of that Act's application. In deciding whether to read the Act as prohibiting discrimination in insurance decisions that are often crucial in the lives of people with disabilities, courts have faced two problems. First, where it prohibits discrimination in the equal enjoyment of the goods and services of places of public accommodation, the Act's area of concern may be limited to the ability of people with disabilities to gain physical access to facilities; or that area may extend to all forms of disability-based discrimination in the provision of goods and services. This Comment argues that the language and legislative history of the Act are consistent only with the latter view. Second, the provision limiting the Act's applicability to insurance may create an exemption for all insurance decisions; or it may protect only the ability of an insurance company to make an insurance decision to the disadvantage of an insured with a disability where actuarial data support the decision. This comment argues that the ambiguous language of the limiting provision should be resolved in favor of the latter view. Legislative history and the broader background of the history of insurance discrimination law support this resolution. Consequently, the Act should be interpreted as prohibiting disability-based discrimination by insurance companies in selling insurance policies and as defining discrimination as making disability-based insurance decisions without the support of actuarial data. By accepting this interpretation, courts can help stop the pattern of judicial narrowing of the Act's application through inappropriately restrictive statutory construction.     

Is the consumer directive advantageous for the consumers?

According to the EU Consumer Protection Directive a purchaser has the right to ask for either repair or replacement of a defect product, whereas before in some member countries only one of these remedies were available. It seems to be taken for granted in the Directive and in Green Papers that such a reform is an advantage to the consumers. An analysis of a case at the Supreme Court of Norway demonstrates that the opposite might be true. It will be argued that both purchasers and vendors will be better off if the Directive is interpreted in accordance with economic theory. Harmonization of consumer protection across EU countries might be counterproductive. The analysis is of general interest in the sense that it demonstrates that mandatory changes in rights and obligations among contracting parties may have distributive effects different from what is commonly assumed.     

Is the general data protection regulation the solution?

Never has a text been received with so many requests for amendments; never has the debate around it been so huge. Some see it as a simple duplicate of the Directive 95/46; others present the GDPR, as a monster. In the context of this birthday, it cannot be a question of analyzing this text or of launching new ideas, but simply of raising two questions. I state the first as follows: "In the end, what are the major features that cross and justify this regulation? In addition, the second: "Is the regulation adequate for today's digital challenges to our societies and freedoms? The answers given in the following lines express the opinion of their author. It is just an invitation for a dialogue to go forth in this journal where so many excellent reflections have been published on Digital Law, thanks to our common friend: Steve.     

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

This article will analyse Part One of the Employment Act 2008on employment dispute resolution and in particular the repealof the statutory workplace dispute resolution procedures onlyfour years after Regulations implemented them. It will beginby considering the background of increasing tribunal caseloadthat led to their introduction in the first place. Later sectionswill examine the replacement of these statutory procedures withwhat Ministers described as the triple package of a new AdvisoryConciliation and Arbitration Service (‘ACAS’) helpline,increased ACAS conciliation and a revised ACAS Code. The languageof repeal and the Act's reintroduction of the Polkey line ofcases might suggest that dismissal law is merely reverting backto its pre October 2004 position. This article will, however,conclude that Part One does not just ‘simplify’dismissal law, or ‘return’ the law to September2004 or indeed to any other time frame. Instead, it weakenskey procedural protections for employees potentially by conflatingthe 2002 Act's different tests of ‘automatically’unfair and ‘ordinarily’ unfair dismissals, for example.Lowering standards of procedural justice is significant in itselfbut this takes added importance for dismissed employees as tribunalsrarely investigate the substantive fairness of dismissals.