Regulatory beneficiaries and informal agency policymaking

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to- consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise low-level employees and supply valuable information to regulated entities regarding how an agency will implement a program. Thus far, however, the debate has largely ignored the distinct and substantial interests of regulatory beneficiaries--those who expect to benefit from government regulation of others. Regulatory beneficiaries include, among others, pharmaceutical consumers, environmental users, and workers seeking safe workplaces. When agencies make policy informally, regulatory beneficiaries suffer distinctive losses to their ability to participate in the agency's decision and to invoke judicial review. This Article argues that considering the interests of regulatory beneficiaries strengthens the case for procedural reform. The Article then assesses some possible solutions.     

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

Policy entrepreneurs and post-conflict cross-border cooperation: a conceptual framework and the Israeli–Jordanian case

What is the role of policy entrepreneurs in shaping the dynamics which normalize relationships between neighboring countries after the formal resolution of conflict? This article suggests a conceptual framework to understand the influence of policy entrepreneurs on public policy regarding cross-border interaction in post-conflict border regions. We analyze the motivations, preferences and strategies of local players which design given realities in the border region. We propose a typology of the various policy entrepreneurs active in the post-conflict border region. The theoretical framework is used in the analysis of the Israeli–Jordanian border region since the peace treaty of 1994.     

Security Through Sociology: The North Caucasus and the Global Counterinsurgency Paradigm

The global counterinsurgency strategy to combat terrorism emphasizes responding to the social and economic needs of communities where terrorists may find support. Public opinion data can help in that strategy, as shown by a 2006 survey of 1,200 young males from three provinces in Russia's North Caucasus. Conventional wisdom notwithstanding, the survey shows few signs of burgeoning radical Islam or ethnic animosity. Instead, economic conditions and poor governance are primary concerns. The region provides both an opportunity and threat: policymakers can and should address the region's needs; if not, radical Islamist groups can turn it into a flashpoint for terrorism.     

Choice,Discrimination, and the Motherhood Penalty

Recent studies have documented substantial penalties associated with motherhood and suggest that discrimination plays an important role in producing them. In this article, I argue that the degree to which motherhood is conceptualized as a choice affects the penalties associated with making this choice. Two methods are employed to evaluate this argument. The first method is an analysis of state differences in the wage penalties for motherhood, in which hierarchical linear modeling is used with data from the 1988–2004 Current Population Survey. The second method is a hiring experiment in a highly controlled setting. The wage analysis shows that, net of the usual individual and state‐level factors that affect wages, mothers are penalized more in states where motherhood is perceived to be a woman's choice. The hiring experiment distinguishes between productivity‐based and discrimination‐based explanations for the penalty and provides strong evidence for a causal relationship between perceptions of choice and discrimination against mothers.     

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Public Experiences of Police Violence and Corruption in Contemporary Russia: A Case of Predatory Policing?

“Predatory policing” occurs where police officers mainly use their authority to advance their own material interests rather than to fight crime or protect the interests of elites. These practices have the potential to seriously compromise the public's trust in the police and other legal institutions, such as courts. Using data from six surveys and nine focus groups conducted in Russia, we address four empirical questions: (1) How widespread are public encounters with police violence and police corruption in Russia? (2) To what extent does exposure to these two forms of police misconduct vary by social and economic characteristics? (3) How do Russians perceive the police, the courts, and the use of violent methods by the police? (4) How, if at all, do experiences of police misconduct affect these perceptions? Our results suggest that Russia conforms to a model of predatory policing. Despite substantial differences in its law enforcement institutions and cultural norms regarding the law, Russia resembles the United States in that direct experiences of police abuse reduce confidence in the police and in the legal system more generally. The prevalence of predatory policing in Russia has undermined Russia's democratic transition, which should call attention to the indispensable role of the police and other public institutions in the success of democratic reforms.     

Survey of methods for the rating of psychiatric impairment in Australia

One of the enduring clinical issues in the assessment of plaintiffs in personal injury and workers' compensation claims, as well as applicants for social security and disablement benefits, is that of the evaluation of impairment and work incapacity. Many writers on this topic confuse the concepts of impairment and disability, and similar confusion is reflected in a number of the rating methods that purport to evaluate impairment but in reality assess disability. In Australia there are 20 distinct statutory schemes for workers' compensation, motor accident compensation, and social security and other benefits, which utilise a variety of methods for the rating of psychiatric impairment. Recent legislative changes designed to restrict access to personal injury compensation at common law, which in two Australian State jurisdictions require the use of impairment rating scales, also specify the rating methods to be used in the assessment of psychiatric impairment. This article discusses the concepts of impairment and disability as defined by the World Health Organisation, and reviews the various methods for the rating of psychiatric impairment that are specified by statute in the federal and State jurisdictions in Australia.