Managing the contract: A transaction cost analysis of externalisation

This paper examines the externalisation of the London Borough of Ealing's Technical Services Group between 1994 and 1999, the first local government Technical Services function to be externalised as a whole. The case is discussed in the light of transaction cost theory from economics. The study illustrates the difficulties that arise under local authority competitive tendering where the parties enter into an incomplete contract and rely on mutual goodwill to adjust the contract terms later. The study confirms that transaction costs can be pervasive in local government contracting.     

The war on cartels and the social meaning of deterrence

The global war on cartels has had much success in introducing tough sanctions for cartel conduct, such as price fixing and market sharing. The policy rhetoric justifying criminalization assumes that compliance can be induced through deterrence. This, in turn, assumes that business people know about the law, believe that they are likely to be caught and face enforcement action and jail if they break the law, and calculate that they should comply. This paper problematizes these policy assumptions using evidence from a survey of a random sample of Australian business people and in‐depth interviews with 25 cartelists. This paper argues that business people's knowledge about the law is less important than their relationship with (or distance from) the law. Corporate elites see themselves as intimate with the law and, therefore, able to strategically “play” the law; while small business people and managers lower down the corporate hierarchy see themselves as “innocent” of any knowledge of the law. The impact of a policy of increased sanctions for misconduct cannot be understood solely in terms of marginal difference in aggregate levels of deterrence. It must also be understood in terms of how it interacts with people's experience of the law to create and maintain or contest and destabilize social segmentation and inequality.     

Irrationality, evidence-based medicine and the standard of care

The determination of the legal standard of care in Australia for medical diagnosis and treatment has gone through three apparent phases in modern times: the Bolam era, the post-Rogers v Whitaker era, and the current Civil Liability Acts era. It is conventionally accepted that the two shifts linking these phases were a jettisoning of the Bolam principle in Rogers and a return to a modified Bolam principle in the Civil Liability legislation, with the post-Rogers interregnum being a time of a court-imposed standard. This story is somewhat inaccurate. The Bolam test relied more on practice accepted at the time as proper by a responsible body of medical opinion rather than the practice of a "responsible body of medical men". The ability of post-Rogers courts to override medical evidence was more a rhetorical power than an actual one. And the irrationality condition, which reserves the right to override medical opinion under the Civil Liability Acts, is more dependent on sound evidence than the terminology might suggest. It is not so much that the legal standard of care has changed in dramatic ways as that the content of competent professional opinion has evolved as medical research and practice have developed. There is greater continuity than is usually granted, throughout the three phases, of the standard's reliance on current best evidence and opinion. This is more easily seen with the advent of evidence-based medicine.     

Governing Genetic Databases: Challenges Facing Research Regulation and Practice

This paper reports on the initial findings of an interdisciplinary research project on the governance of human genetic databases in England and Wales. The number of biosample and information collections has expanded, yet considerable legal uncertainty surrounds their definition, collection, storage, management, and use which could inhibit research and clinical practice, while failing to protect the rights and interests of all stakeholders. We report some initial findings from the legal research and identify major challenges associated with defining 'genetic databases'. We identify a wide range of relevant instruments and regulatory actors, and suggest that none adequately addresses the challenges posed by contemporary research techniques or the'corporeal'and'informational'materials used in the genetic databases context. This preliminary analysis seriously questions the efficacy of the current regulatory framework and concludes that developing an appropriate governance framework for the creation, maintenance, and use of genetic databases requires the bringing together of legal analysis with good quality empirical evidence.