Cable television and telephony in the telecommunications act of 1996: Economics,law, regulation and politics

Though reasonable people may argue about whether cable television and local telephone services are natural monopolies in theory, historically they have developed with infrastructures that make them more likely to have important declining cost characteristics in reality. Additionally, common carriage issues, especially for telephones, may necessitate regulatory oversight. Though touted as deregulation, and certainly eliminating many cross‐industry barriers, the Telecommunications Act of 1996 is better understood as reregulation. The act maintains a common carriage philosophy while attempting to promote competition. However, evidence indicates it is unlikely that the new regulatory regime will result in efficient prices or true competition. Instead, duopoly in cable and oligopoly in telephony are probably the best that can be achieved under the act.     

Research on human embryos and cloning: difficulties of legislating in a changing environment and model approaches to regulation

It is difficult to regulate rapidly changing fields of science. New technologies are not anticipated and legislation becomes inadequate. Legislative definitions are also problematic. This article begins with consideration of such difficulties in the context of research on human embryos and cloning. It considers problems with past legislative definitions in Australia, the new regulatory regime, and whether that regime now sets clear boundaries. It is found that problems still exist--some terms are not adequately defined and boundaries for research prove unclear. Three regulatory approaches are therefore discussed. Legislation based on strict definitions is compared to a legislative model that leaves terms undefined. The third model--which combines framework legislation with the oversight of a regulatory authority--is seen as most suitable. However, problems with this model are recognised and suggestions made regarding how to ensure the "framework" remains workable and effective.     

Law of assisted reproductive surrogacy in Malaysia: a critical overview

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.     

论社会热点问题中的预警工作

社会热点问题是复杂的社会问题,也是新形势下影响社会稳定的突出问题,公安机关是维护社会稳定的职能部门,只有密切关注社会热点问题,把握社会热点问题与社会稳定的关联性,明确社会热点问题预警工作的重要性,落实社会热点问题预警的各项工作措施,才能有效完成维护社会稳定、保卫和谐社会建设战略目标实现的历史重任。     

China's new regulatory regime tailored for the sharing economy: The case of Uber under Chinese local government regulation in comparison to the EU,US, and the UK

Although Uber's arrival in China has resulted in disruptive competition for incumbent taxi companies, it offers an attractive alternative in China's supply-demand-imbalanced urban passenger transport system. China's regulatory regime for Uber has evolved in three stages: from the regulatory vacuum prior to 2015 to its official legalization in 2015–2016, and the enactment of numerous local regulations in 2016, with specific and more demanding requirements for Uber. This policy is a part of the Chinese approach to the gradual liberalization of the urban passenger transport market. Policymakers should consider ‘fair competition’ as the guiding principle to balance the interests of sharing firms and incumbent service providers, as well as between different sharing firms. The core value of this principle lies in the benefits it provides for consumers and the way it engenders a pro-competitive market environment. The labor protection arrangements for sharing firms’ laborers should be more flexible and diversified. In order to recognize whether an Uber-Driver is an employee or independent contractor, a new standard taking into account a range of factors should be established through collective negotiations between the participants of the sharing economy, and dialogues between members of the judiciary, academics, and the policymakers. Further, consumer protection law and personal data protection provisions should apply when sharing firms misuse their distinctive algorithmic management model to compete unfairly to the detriment of consumers and other users. Ex ante regulatory measures designed to protect the personal data of users should be introduced for deployment in the context of the sharing economy. When enforcing these rules, a balance should be struck ensuring free data flow that is essential to sharing firms’ innovation and competition, and the need to ensure the level of data security required to underpin a well-functioning sharing society.     

The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict

Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage "excellence" in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the "good society." It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the "scientific" strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.     

The ICO and artificial intelligence: The role of fairness in the GDPR framework

The year 2017 has seen many EU and UK legislative initiatives and proposals to consider and address the impact of artificial intelligence on society, covering questions of liability, legal personality and other ethical and legal issues, including in the context of data processing. In March 2017, the Information Commissioner's Office (UK) updated its big data guidance to address the development of artificial intelligence and machine learning, and to provide (GDPR), which will apply from 25 May 2018.This paper situates the ICO's guidance in the context of wider legal and ethical considerations and provides a critique of the position adopted by the ICO. On the ICO's analysis, the key challenge for artificial intelligence processing personal data is in establishing that such processing is fair. This shift reflects the potential for artificial intelligence to have negative social consequences (whether intended or unintended) that are not otherwise addressed by the GDPR. The question of ‘fairness’ is an important one, to address the imbalance between big data organisations and individual data subjects, with a number of ethical and social impacts that need to be evaluated.     

Reviewing regulation of assisted reproductive technology in New South Wales: the Assisted Reproductive Technology Act 2007 (NSW)

In November 2007, the Assisted Reproductive Technology Act 2007 (NSW) was passed to deal with a number of issues under the spectrum of reproductive technologies. The legislation was the outcome of a review conducted by the New South Wales Health Department and adopts a different approach to other Australian statutory regulation. This article considers the approach of the new legislation and whether there are some issues that require further consideration under the new regulatory regime. In particular, discussion is focused on the failure of the new legislation to address eligibility for reproductive treatments as well as the use of pre-implantation genetic diagnosis for the creation of tissue-matched children.     

Mineral investment and the regulation of the environment in developing countries: lessons from Ghana

This article examines the relationship between foreign direct investment in the mineral sector and environmental regulation in developing countries. It argues that two major trends in global mineral investment have emerged in recent years: increased competition amongst developing countries to attract mineral investment, and the development and proliferation of a standard set of legal protections for mineral investors including access to international arbitration, prohibitions of expropriation without compensation, and commitments to stability of the regulatory regime. Both of these trends may have implications for environmental policy, which are examined in the paper both in general terms and in the context of a detailed case study concerning mineral exploitation in Ghana’s forest reserves.     

Environmental voluntary behaviour and crowding-out effects: regulation or laissez-faire?

The purpose of this paper is to investigate what the consequences are if environmental regulation in terms of a price mechanism (effluent charges) erodes moral motivation (crowding-out). The findings suggest that a regime relying on voluntarism can do better than a mandatory regime depending on the number of individuals being intrinsically motivated, degree of moral motivation, crowding effects, and whether or not ethical utilities are accounted for. The optimal tax scheme is a discriminatory one with rates that differ across moral and non-moral individuals. This tax-scheme induces the first-best solution when social costs are considered, while the same solution becomes unattainable for a social welfare function. The model provides a rationale for why governments sometimes rely on voluntary effort.      

Gaps, inexperience, inconsistencies, and overlaps: crisis in the regulation of genetically modified plants and animals

The regulation of genetically modified products pursuant to statutes enacted decades prior to the advent of biotechnology has created a regulatory system that is passive rather than proactive about risks, has difficulty adapting to biotechnology advances, and is highly fractured and inefficient--transgenic plants and animals are governed by at least twelve different statutes and five different agencies or services. The deficiencies resulting from this piecemeal approach to regulation unnecessarily expose society and the environment to adverse risks of biotechnology and introduce numerous inefficiencies into the regulatory system. These risks and inefficiencies include gaps in regulation, duplicative and inconsistent regulation, unnecessary increases in the cost of and delay in the development and commercialization of new biotechnology products. These deficiencies also increase the risk of further unnecessary biotechnology scares, which may cause public overreaction against biotechnology products, preventing the maximization of social welfare. With science and society poised to soar from first-generation biotechnology (focused on crops modified for agricultural benefit), to next-generation developments (including transgenic fish, insects, and livestock, and pharmaceutical-producing and industrial compound-producing plants and animals), it is necessary to establish a comprehensive, efficient, and scientifically rigorous regulatory system. This Article details how to achieve such a result through fixing the deficiencies in, and risks created by, the current regulatory structure. Ignoring many details, the solutions can be summarized in two categories. First, statutory and regulatory gaps that are identified must be closed with new legislation and regulation. Second, regulation of genetically modified products must be shifted from a haphazard model based on statutes not intended to cover biotechnology to a system based upon agency expertise in handling particular types of risks.     

完善医疗制度 缓和医患关系

随着社会的发展,医疗纠纷数量日趋增多,成为卫生部门、医院、医生的最大难题,是继医疗改革之后的又一备受社会各界关注的热门话题,医患关系成为社会最不和谐的声音。医患关系紧张、医疗纠纷增多与我国目前相关制度、法规不健全有极大的关系。本文探讨通过建全相关制度、法规以缓和医患矛盾的问题,试图寻找合理处理医疗纠纷的办法。     

The Effects of Medical Accidents and Litigation on Doctors and Patients*

Medical accidents and litigation can have a profound and long lasting effect on both doctors and patients. Research has shown that for doctors, working in a profession which is intrinsically stressful, the added stress of litigation and accidents is leading to considerable strain and sometimes to maladaptive and inappropriate behaviors on the part of some doctors. For many it is leading to the practice of defensive medicine. For patients the picture is not better. Some are left with no clear idea of what has happened or why they have been injured by their medical treatment. Many are left needing further remedial treatment and for some the psychological effects are akin to those suffered by victims of major disasters. In this paper we have looked at these issues and have put forward proposals to suggest how things can be improved for both doctors and patients.     

矫正贫富分化的社会法理念及其表现

贫富分化问题已成为困扰我国社会经济持续稳定发展的重大问题。其根本成因在于西方的个人主义观念及以此为基础的市场经济体制和相应的社会法制度的缺失。矫正贫富分化的主要途径在于以整体主义观念为基础构建和完善社会法制度,这不仅符合现代社会的时代精神和各国社会立法的普遍做法,也与中国传统文化和法律观念相契合。但整体主义只是社会法的观念基础,而不是整个法学的观念基础。整体主义也并不意味着对个体主义的否定,二者是互补的,相辅相成的。     

Global financial governance and the informal: limits to the regulation of money

The list of predicate crimes for the Recommendations of the Financial Action Task Force (FATF) has evolved and grown over its twenty-five year existence. The evolution of this list reflects shifting concerns among the central actors in the organisation, as well as representing a response to any ‘displacement’ activity undertaken by those seeking to avoid these forms of governance. When the scope for cooperation and compliance with the FATF Forty Recommendations was extended beyond the organisation’s membership this governance regime encountered business sectors and financial practices not readily amenable to its objectives. This paper considers the causes and consequences for the situation, as developing economy states attempt to comply with the global governance expectations of the FATF when a significant portion of the domestic economy operates ‘informally’. A frame of reference is provided, with a definition for the informal economy and the concept of displacement as used in research on criminal activity. The focus here is with the nature of the cash economy operating beyond the scope of financial surveillance with implications for the comprehensive effectiveness of the global financial governance regime. The context of informal financial practice and its separation from the regulatory structures of the state leads to a conclusion that global financial governance is limited in practice to the domain of the formal economy.     

Patents & the progress of personalized medicine: biomarkers research as lens

This article addresses the barriers to personalized medicine, focusing on the burgeoning field of biomarkers research. The author begins by framing intellectual property issues as more than a product of industry incentives and suggests that these issues are deeply entangled with other barriers facing personalized medicine such as regulatory framework deficiencies. The author proposes a set of future research questions to more fully define the barriers to biomarkers research and to uncover which corrective measures may be effective. The author concludes by recommending an integration of regulatory and patent reforms, with a call to action by scholars, scientists, representatives of the biopharmaceutical industry, and policy-makers.     

'Like a Mask Dancing': Law and Colonialism in Chinua Achebe's Arrow of God

Whilst the study of law and literature is now well established in the western academy, little attention has been paid to portrayals of law in African literature. In addition, studies of the colonial state by lawyers, political scientists, and historians have neglected African fiction's long engagement in this area. Achebe's fiction prefigured many of the issues engaging critics and theorists on the wider social scientific terrain. This paper draws on Achebe's simile –'the world is like a mask dancing' ndash; to delineate an approach to power and authority. The lesson of Arrow of God – that the 'legal world' cannot be understood by standing in one place – is of wider significance to those engaged in the study of law and society.     

From the Field to the Courthouse: Should Social Science Research Be Privileged?

Social scientists need clarification about the extent to which the confidential aspects of their research are protected from compulsory disclosure in legal proceedings, and the extent to which they ought to be. Investigating the nature of social science research with an emphasis on researcher-participant relationships in ethnographic practice, I conclude that a qualified privilege would confer three major benefits on social science researchers: confidence that the government will not unnecessarily interfere with research, facilitation of improved researcher-participant relationships, and increased accuracy, thoroughness, and reliability of research data. I also discuss the development of privilege and confidentiality issues in practical research contexts through an examination of two criminal cases in which social science researchers refused to divulge the confidential information obtained in the course of research. Finally, I discuss the possible formulations of a scholarly research privilege. This is especially important because courts have cast social scientists as members of the larger community of academic or scholarly researchers with respect to these issues. Potential sources of protection include state journalist protection laws, federal common law, and federal statutory law. Evaluation of these sources and the case law to which they correspond suggests that developing common law privileges in state and federal jurisprudence is the most promising means of affording the confidential aspects of social science research legal protection. As researchers continue to press privilege     

Beyond Technocratic Governance: The Case of Biotechnology

Decision-making processes within the European Union are often held to be technocratic in nature. This article challenges this assumption upon conceptual and empirical grounds. Whilst in the European regulatory field of biotechnology, politicians often seek to define political issues as technical questions and so may successfully evade necessary but time-consuming legislative processes through the means of Comitology; the diverse mixture of national, supranational, technocratic and political interests within the Commission, Council, Parliament and committees, determines that social and ethical criteria do play a role in European regulation. Relating such specific findings to the broader question of European governance, it might thus be argued that the European Union is more than a technocratic regime, and does more than promote negative integration. However, the 'political' within European decision-making needs nonetheless to be strengthened to ensure the necessary and continued inclusion within such regulatory processes of social and ethical rationalities to complement the economic rationality of the internal market.     

The Socio-Cultural Exclusion and the Regulation of Sexuality in Taiwan

My paper begins with an analysis of recent emergence in Taiwan of public discourse and administrative ordinances that aim to regulate the internet, TV programs, newspapers, romance novels, comics, video games, education, obscenity laws and teenage culture. My analysis points out that the discourse and regulations have signaled significant changes in the relationship between Taiwan’s civil society and its nation-state. An exclusive civil society, a concept which I have partly drawn from Jock Young’s The Exclusive Society, is emerging as an extension of state power rather than as the antithesis of the state. I argue that as a result of this development of the exclusive society and the new regulatory state, a “culture war” between socio-cultural exclusion and social freedom (especially in the area of sexuality) is now being waged in Taiwan’s civil society. The role of the mainstream NGOs, the tactics of regulation and the wider context of this culture war will be analyzed in this paper.