Regulating for Fair Dealing in Work Contracts: A New South Wales Approach

From 1959 till 2006, all workers in New South Wales had recourseto review of contracts ‘and arrangements’ underwhich work is performed on the grounds of ‘unfairness’.This jurisdiction—initially instigated to capture schemesand subterfuges by which employers escaped industrial awardsby contracting out to dependent contractors—has been expandedover the years to allow review of all sorts of arrangementsunder which work is performed. This article will review thatjurisdiction to demonstrate the potential of statutory unfaircontracts review to meet some of the challenges that changesin labour market structures have presented for the protectiveagenda of labour law.     

Law's Social Forms: A Powerless Approach to the Sociology of Law

Since the law and society movement in the 1960s, the sociology of law in the United States has been dominated by a power/inequality approach. Based on a sociological distinction between the forms and substances of law, this article outlines a “powerless” approach to the sociology of law as a theoretical alternative to the mainstream power/inequality approach. Following Simmel and the Chicago School of sociology, this new approach analyzes the legal system not by its power relations and patterns of inequality, but by its social forms, or the structures and processes that constitute the legal system's spatial outlook and temporality. Taking a radical stance on power, this article is not only a retrospective call for social theory in law and society research, but also a progressive effort to move beyond US‐centric sociolegal scholarship and to develop new social science tools that explain a larger variety of legal phenomena across the world.     

Regulating Hedge Funds for Systemic Stability: The EU's Approach

This article offers a critical appraisal of the way in which the EU regulates hedge funds (HFs) in the Alternative Investment Fund Managers Directive (AIFM Directive) and its proposal to regulate the repo markets from which they obtain much of their leverage. It argues that the EU's scheme is not a radical departure from the pre‐crisis market liberalist approach and that its reliance on discretionary intervention is misplaced because it does not take account of the fundamental uncertainty that characterises financial markets. The article outlines the operations of HFs and explores the extent to which they pose a threat to systemic stability, paying particular attention to the use of leverage by HFs. It explores the background to the AIFM Directive and the post‐crisis international consensus on financial regulation and then evaluates the complex division of responsibility for regulating HFs between the national and supranational authorities. Finally, it discusses how HFs should be regulated. Drawing on the work of Minsky, it argues that a leverage cap would have been more likely to prevent HFs contributing to systemic instability than the scheme adopted. Nor are the proposed rules on mandatory ‘haircuts’ in repo markets or the AIFM Directive's rules on remuneration likely to prevent HFs contributing to systemic instability.     

The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA

Commentators have documented the disturbing use of the courtroom to silence those who speak out on important issues. Too often, parties resort to meritless lawsuits in response to another's free expression or communication with the government. These lawsuits are called SLAPPs, or Strategic Lawsuits Against Public Participation. In the USA, they have emerged as a significant threat to the rights of expression and petition guaranteed in the First Amendment to the US Constitution. A majority of the US States have passed 'anti-SLAPP laws', but there is no uniform protection. The model legislation outlined in this paper is intended to guide those who seek uniform, comprehensive protection against SLAPPs.     

法律规范行政强制行为的意义和途径

去年,全国人大常委会已经正式启动了<行政强制法>的立法程序.对此,有人发生疑问:在强调以人为本,保障人权,建立和谐社会的今天,为什么要制定<行政强制法>?行政强制立法的意义何在?     

Implementation of the Strategic Approach to International Chemicals Management in Cambodia: effects of regime design

Over the past 20 years, a cluster of international environmental agreements has developed aiming at reducing the risks associated with production and use of chemicals. The Strategic Approach to International Chemicals Management (SAICM) is the newest addition to this cluster and serves to guide efforts to meet the 2020 goal to use and produce chemicals in a way that minimizes significant adverse effects on human health and the environment. SAICM differs from other chemical and waste agreements on several key points: It is a policy framework that is legally non-binding; it comprises a broad scope of activities; and it allows for active participation of non-governmental stakeholders. A central aim of SAICM is to decrease the gap between developed and developing countries in terms of capacities to manage chemicals safely. This article examines the early implementation of SAICM, based on a national-level case study in Cambodia and interviews with SAICM stakeholders. The results show that SAICM has generated a clear momentum in Cambodia and has led to several implementation projects. Based on the interviews, the overall conclusion is that design features of the SAICM—its broad scope, multi-stakeholder participation and voluntary status—are appropriate for the purpose of improving chemicals management in a developing country like Cambodia. However, these features also bring about difficulties in measuring progress on implementation. The future development of SAICM therefore needs to balance the benefits of its key design features with the need to more effectively and precisely monitor progress toward the 2020 goal.     

Regulating DAS Developments: Making Small Cells Work in a Macro World

Abstract

We are all familiar with the 120‐ to 200‐foot towers and monopoles with their triangular antenna arrays that have come to dot our landscape over the last 20 years. While these “macro” cell sites are not going away any time in the foreseeable future, new small cell deployments, known as DAS, or Distributed Antenna Systems, are increasingly being used by carriers and infrastructure providers to fill in coverage gaps and increase system capacity in congested areas. DAS equipment requires less power and can be located closer in proximity to its end users, often utilizing small form-factor antennas that can easily blend into their surroundings.     

创办劳教工作特色的实践分析与对策思考

创办劳教特色是创新发展劳教事业的有效途径。如何从理论与实践的结合上进一步探索和推进劳教特色创办工作,本文拟从广东创办劳教特色的实践,结合存在问题、努力方向和实际对策等方面谈点粗浅看法,供同行们参考。一、创办劳教工作特色的实践与探索实践使我们认识到:劳教工作要生存和发展,必须与时俱进,更新观念,深化改革,办出特色,切实解决好目前劳教单位仍然重经济生产、影响教育挽救职能充分发挥的突出问题。而前提是必须切实纠正警察思想观念中的“错位”现象,促使劳教警察特别是所级领导干部的认识“归位”到强化教育挽救主业地位上来,…     

A Socio-Legal Approach to Administrative Justice

The first part of this article outlines two complementary approaches to enhancing administrative justice. Internal mechanisms, which can be put into place by government departments and public bodies themselves, are contrasted with external mechanisms, which result in the imposition on government departments and public bodies of principles enunciated by courts, tribunals, and ombudsmen. Lawyers are all too familiar with the external approach but tend to be much less familiar with the internal approach. The article seeks to redress this imbalance. It emphasizes the importance of the internal approach, not as an alternative but, rather, as a complement to the external approach and develops a framework for analyzing administrative justice in terms of "trade-offs" between different normative models of administrative decision-making. The second part of the article demonstrates how this approach to the study of administrative justice has informed research on the impact of computerization on social security in the United Kingdom; on decision making in the Scottish prison system; on the assessment of special educational needs in England and Scotland; and on the computerization of social security in thirteen countries. The article concludes by attempting to show that this approach to the study of administrative justice satisfies all the defining characteristics of the socio-legal paradigm.     

A Philosophical Approach to Norm Logic

The author outlines his views on the essence of philosophical logic. There are two means of philosophical argumentation: intuition and analysis of the problem situation under examination. Logical intuition can be replaced by improved intuition based on new intellectual constructions. Then the author explains—in opposition to von Wright—the main philosophical traits of his conception of norm logic. The structure of the information processing determining action justifies the application of dichotomous semantics in action theory and in practical philosophy. The theory of action and institutions is based on three anthropological features of man: our capacity of acting, our being a zoon politikon , and our capacity to form institutions. These features determine our ontology, our semantics and the logics of practical thinking. The action-theoretical approach leads to a formal and finalistic theory of action in which action is not only analysed as an element of the norm content, but as the essential basis of the whole field of practical philosophy. In the frame of this action theory a conception of freedom of will is provided which does not contrast with determinism. The formalism of action is applied in two different problem situations: in action deliberation and in motive interpretation. Jørgensen's dilemma is discussed and overcome by the introduction of a generalised notion of inference. Deontic logic is confronted with the idea of a genuine logic of norms. The main principles of norm logic are discussed and a normative conditional is introduced. Von Wright's conception of a genuine norm logic is confronted with the present author's conception. The author shows that norm-logical skepticism would be detrimental to analytical jurisprudence.     

A Legal Conventionalist Approach to Pollution

There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue harm as a basis of assigning legal protections (rights) and obligations (duties) to different agents, which creates standards for holding those agents responsible for harm. Absent such positive standards with respect to pollution at the domestic or international level, it does not make sense to hold agents responsible. This fact has two fundamental implications. First, contrary to what some defenders of environmental justice argue, we cannot hold people responsible for polluting without a system of legal rights in place that assigns entitlements, protections, and obligations, and second, contrary to what opponents of environmental regulation claim, the lack of moral entitlements to pollute creates room for quite extensive legal restrictions on people’s ability to pollute for the sake of the environment and human health. Indeed the scope of those restrictions is wide and open-ended.     

One Approach to Formulating and Evaluating Student Work Groups in Legal Environment of Business Courses

The principal focus of this study is an investigation of whether students' grade point average (GPA) is a viable criterion for forming student work groups in the undergraduate Legal Environment of Business course. More specifically, the research focuses on the impact of: (1) GPA-homogeneous (HO) and GPA-heterogeneous (HE) groups upon student satisfaction with group processes and (2) the impact on individual student performance in both group and nongroup assignments. Data obtained from fourteen HE and fourteen HO student groups, in four separate Legal Environment of Business classes consisting of a mix of Management, Marketing, Computer Information Systems, International Business, Financial Services, and Accounting majors, generated a number of significant results. The most surprising observations dealt with the behavior of low achievers whose individual grades showed substantial improvement after working in HO groups. Researchers who are assessing pedagogical methods which serve to engage a student's active learning and motivation should find these results to be of interest. In addition, the beneficial impact on task and relationship behaviors observed in this study should provide solace or a sense of reward to the larger set of academicians, across disciplines, who attempt to impart realistic organizational skills to their classes.     

A BPA Approach to the Shroud of Turin

An investigation into the arm and body position required to obtain the blood pattern visible in the image of the Shroud of Turin was performed using a living volunteer. The two short rivulets on the back of the left hand of the Shroud are only consistent with a standing subject with arms at a ca 45° angle. This angle is different from that necessary for the forearm stains, which require nearly vertical arms for a standing subject. The BPA of blood visible on the frontal side of the chest (the lance wound) shows that the Shroud represents the bleeding in a realistic manner for a standing position while the stains at the back—of a supposed postmortem bleeding from the same wound for a supine corpse—are totally unrealistic. Simulation of bleeding from the nail wounds contacting wood surfaces yielded unclear results.     

多元翻译理论初探

本文在比较中西典型译论的基础上指出,翻译的本质是涉及诸多要素的交流活动,而这些译论仅侧重反映了其中的某些方面,因此,提倡通过“对话”,吸收其合理内核,使其共存,从而建立一种多元对话的翻译理论新体系非常必要。     

A Normative Approach to the Quistclose Trust

This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law should recognise a trust in addition to any underlying legal relationship. Four key justifications are addressed, based on respecting party intention, unconscionability, fairness, and the incentivisation of desirable transactions. It will be argued that: (i) there are difficulties with each of these justifications, although an intention‐focused explanation is probably the most convincing; and (ii) the existing law and commentary lacks coherence and consistency, as seen in the mismatch between normative and doctrinal analysis, and the failure to properly address the ramifications of the Quistclose trust during insolvency.     

The Strategic Approach to International Chemicals Management: Lost Opportunity or Foundation for a Brave New World?

Numerous international instruments have been developed to promote sustainable chemicals management. However, until recently, a common overarching framework for sustainable chemicals policy was missing. The Strategic Approach to International Chemicals Management (SAICM) was developed to address this challenge. This article will provide a short overview of the context and the negotiation process of SAICM, and it will give a short summary and assessment of its content. The article will conclude that SAICM is neither a lost opportunity nor the foundation of a brave new world of chemicals policy, but that it establishes a comprehensive institutional framework that can be further developed into an effective instrument of international chemicals policy.