"No-hire" clauses in healthcare sector contracts: their use and enforceability

In today's healthcare industry, many hospitals utilize outside agencies for both business and clinical functions. This Article acknowledges the prevalence of outsourcing contract labor in the healthcare arena and focuses on the restrictive provisions included in these employment contracts, particularly "no-hire" clauses. No-hire clauses are often included in contracts between healthcare providers and professional groups that provide clinical service employees to the provider, such as a medical practice group providing physicians to a hospital or an agency providing nurses to a nursing home. These clauses usually provide that the healthcare provider may not directly hire an employee provided by the professional group, nor may it contract with another professional group that later hires the employee. The purpose of a no-hire clause is two-fold: to protect the professional group's investment of time and moneyfor recruiting, training, and establishing the employee's clinical practice, and to give the professional group leverage to retain its employees. While noncompete clauses in employment contracts have traditionally been the subject of litigation, no-hire clauses raise distinct legal issues. Case law provides conflicting views as to the enforceability of these provisions. Some courts find no-hire clauses to be per se illegal restrictions on trade, while others will permit them when they are reasonable within a specific context. The author proposes that a multifactor test be applied on a case-by-case basis to determine the reasonableness of the no-hire provision in a given employment contract and suggests drafting improvements to facilitate enforcement.     

Judging Police Misconduct: "Street-Level" versus Professional Policing

In their interactions with citizens, police officers are prohibited from (1) using unnecessary Force, (2) Abusing their authority, (3) speaking Discourteously, or (4) using Offensive language, all captured by the acronym FADO. However, acts of police misconduct are complex social phenomena that involve both following legal guidelines and responding to extralegal or mitigating circumstances. Using a factorial survey of police‐civilian interactions that introduce various dimensions of FADO and surrounding circumstances, respondents are asked to rate from zero to ten the seriousness of police misconduct in an encounter. Findings show that respondents' judgments of the seriousness of misconduct consider both legal and extralegal dimensions. On the legal side of the ledger, officers' unnecessary use of force and use of offensive language significantly increase judgments of serious misconduct; on the extralegal side of the ledger, civilians' confrontational demeanor significantly reduces judgments of serious misconduct. The findings suggest that citizens expect officers to behave professionally, or by the book, but with a recognition that “street‐level” discretion has a place in an officer's toolkit. Citizens' expectations that street‐level discretion has its place is also demonstrated by findings for the dimension abuse of authority: Abuse or threatening behavior by officers is not a significant predictor of serious police misconduct. In addition, characteristics of the respondents explain propensities to observe different degrees of police misconduct. Controlling for the social status, political orientation, and prior experience of respondents with the police, we find that (1) blacks rate police misconduct significantly higher than their white counterparts, and (2) liberals rate police misconduct significantly higher than their conservative counterparts. Differences in judgments by blacks and whites and by liberals and conservatives concerning judgments of police misconduct have important implications for the legitimacy of police authority.     

醉驾:“一律入刑”还是“区别对待”

如何合理划定"醉驾"犯罪圈的大小,"一律入刑"与"区别对待"两种见解存在实质性分歧。罪刑法定原则作为刑事司法不可逾越的屏障,司法机关应该通过"一律入刑"呼应其明确性要求,同时限制司法机关的权力扩张;主观主义与客观主义作为两种不同的解释方式,在实践选择的位阶上应该以文本映射的主观主义优先适用;刑法总分体系需要刑事立法与司法进行一体化贯彻,在刑事立法已然兼顾总则要求的前提下不能通过"区别对待"再次限缩分则罪名的适用范围;"一律入刑"的主张不违背宽严相济刑事政策的内在精神,刑事政策的刑法化要求刑事司法必须坚守这一法治立场。     

Local justice in the allocation of college admissions: A statistical study of beliefs versus practice

This study examines admission decisions at a highly selective private university. A statistical analysis of 300 admission decisions is used to compare admissions officers' beliefs about how the admissions process works with their actual pattern of decisions. As a group, the officers underestimate the effect of applicant race, gender, alumni status, and athletic ability on their academic and personality ratings and final admission decisions. Individual officers place different weights on the decision-making criteria, with the model explaining less variation in the ratings of officers with more years of experience. The comparison of beliefs with practice has implications for evaluating the distributive and procedural fairness of the college admissions process.     

"Totality"--right or wrong: the totality trilogy

Totality, or the concept that all evidence that may bear on a given case should be considered together in issuing a decision, has been applied inconsistently by the National Labor Relations Board, particularly with regard to three types of cases: "good faith doubt" cases, those involving employer statements made during a union election campaign, and employee discharge cases. In the following article, the author examines cases that demonstrate how the Board has vacillated in its application of the totality principle.     

The police education qualification framework: a professional agenda or building professionals?

ABSTRACT

Given the growing complexity in British policing, the College of Policing are implementing a Police Education Qualification Framework through a professionalization agenda. This aims to standardise entry to the police and allow serving officers to gain accreditation for their previous training and experience. Part of this process involves the development of a national police curriculum for higher education institutions to deliver to new recruits. Different definitions of what constitutes professionalism can impact on officers’ interpretations of this concept and how they subsequently engage with the proposed reforms. This paper, which is based on in depth qualitative interviews with serving officers who have undertaken an academic qualification in policing, suggests that the relationship between police education and the development of professionalism is complex. Officers need to be trusted and encouraged to use their learning in a way that develops their own personal sense of professionalism. However, this paper will argue that current perceptions amongst officers are sceptical of the wider agenda and brings into question the development of a standardised curriculum which may ultimately be viewed as further governance over officer behaviour.     

Supervising junior doctors and "on-call" responsibilities: Brus v Australian Capital Territory; Greater Southern Area Health Service v Angus

The recent decisions of Brus v Australian Capital Territory [2007] ACTSC 83 and Greater Southern Area Health Service v Angus [2007] NSWSC 1211 highlight different aspects of the difficulties associated with supervision of junior doctors in the present public-funded Australian public hospital system. Their facts reveal how difficult it is for senior staff to achieve the fine balance required to assist trainees by according adequate experience and responsibility on the one hand, and to ensure patient safety, on the other. In addition, these cases highlight problems with the supervision process that are likely to be exacerbated in a privatised health care setting where senior staff may have less inclination to supervise struggling juniors unless adequately remunerated for such teaching, an issue of considerable controversy given the focus on profit of those institutions.     

分立抑或再合一:"征收"与"征用"之概念关系辩正

我国宪法2004年修正案将原宪法中的"征用"概念一分为二,拆分为"征收"与"征用"。此后,在我国现行法上,"征收"与"征用"就成为两个平行的法律概念,两种并行的法律制度。但无论从制度构造还是比较法的角度看,我国现行法上的"征用"概念都不能成为"征收"之外的一个独立概念和制度。"征用"是一种较为特殊的征收,即"部分征收",因此"征用"只是从属于"征收"的一个下位概念和制度而已。     

Physician self referral arrangements: legitimate business or unethical "entrepreneurialism"

An emerging legal and ethical controversy in the health care industry centers on physician investment in health care facilities to which they make patient referrals. This Article analyzes the policy debate surrounding these physician self referral arrangements as well as the various responses to such arrangements. The Article asserts that an effective legal or ethical response to self referral arrangements must acknowledge and balance both the possible pro-competitive effects of such arrangements and the inherent potential for abuses in this type of business practice. From this perspective, the most effective form of regulation consists of extensive structural guidelines which focus on the physician's referral behavior and limit restrictions on investment procedures. Such an approach would minimize referral abuses and conflict of interest concerns but promote business and competitive freedom.     

The interface between exercise of state power and personal powerlessness: a study of police perceptions of factors impacting professional practices

Police legitimacy is crucial to the maintenance of law and order in any society. In communities marred by high instances of societal manifestations of dysfunction, tenuous legislative frameworks, poradic implementation, and dismantling of crime fighting strategies, there is greater emphasis placed on quick-fix crime fighting solutions and policing initiatives. The focus is placed primarily on what police officers are mandated to do as opposed to practical applications underscored by systematic hindrances to professional practice. Examining interview data from a pilot study on police fear of crime in Trinidad and Tobago, this study is intended to explore connections between police perceptions about personal powerlessness and the exercise of state power. Here we examine the discourses of N = 12 senior police officers with an average of 22.83 years of service to attain a preliminary understanding of instances presenting a conflict between professional practice and perceptions of self-preservation. The findings suggest a need for officers’ constant consideration of the repercussions of professional competence and the need for continued navigation of blurred constructions of police legitimacy and subjective determinants of criminality against a backdrop of acknowledged personal powerlessness.     

集团诉讼中的律师：私人检察官抑或私利牟取者？

最近的调查显示,公众对集团诉讼制度的不信任正在增长。必须对集团诉讼制度做点什么的感觉不断增强,直至最近在两党连立的《集团诉讼公平法》的讨论过程中达到了顶峰,这部立法扩大了联邦法院对州际集团诉讼的权限,同时要求联邦法院谨慎审查代币券和解协议。寻求利益的集团诉讼律师及其在诉讼启动、选择以及和解方面伴随的努力。基于这一原因,私人检察官类比理论的支持者很少主张国家检察官缺乏启动旨在维护公共利益之诉讼的权力。然而近年来情况变得更加复杂,因为许多国家检察官积极联合私人原告律师启动消费者欺诈诉讼和反托拉斯诉讼。各州已经在尝试的方法有:(1)在私人律师选择方面强制增加竞标程序;(2)禁止受雇于国家检察官的私人律师接受胜诉酬金协议;(3)禁止向国家检察官竞选捐资的律师与那些检察官进行诉讼上的合作。     

U.S. Industries v. Director: "claim" versus "condition" in the analysis of workers' compensation cases

Under most workers' compensation statutes, an injury must "arise out of " and "in the course of" employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.