Journals

Co-payment for Unfunded Additional Care in Publicly Funded Healthcare Systems: Ethical Issues

Journal of Bioethical Enquiry - Sun, 2019-06-23 22:00
This article provides an overview of the main ethical issues associated with co-payment, and ethical arguments both in suppor t of and against it will be presented and analyzed. (Source: Journal of Bioethical Inquiry)
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Dementia: Unwelcome change has arrived and we are not ready!

Journal of Bioethical Enquiry - Sun, 2019-06-23 22:00
(Source: Journal of Bioethical Inquiry)
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Allies Already Poised to Comply: How Social Proximity Affects Lactation at Work Law Compliance

Law & Society Review - Fri, 2019-06-14 14:19

This study demonstrates how legal compliance may be better achieved when organizations include individuals who will advocate for newly codified rights and related accommodations. To understand compliance with a new law and the rights it confers, this article examines as its case study the Lactation at Work law, which amends the Fair Labor Standards Act to mandate basic provisions for employees to express breast milk at work. In particular, this study interviewed those organizational actors who translate the law into the policies affecting workers' daily lives: supervising mangers and human resources personnel. Those studied in this article were “Allies Already:” friends or relatives of breastfeeding workers, or ones themselves, who held pro‐breastfeeding values and understood the complexities of combining lactation and employment. They mobilized within their organization to comply with the law swiftly and fully—often even overcomplying. This article demonstrates how heightened compliance, particularly with new laws, may be achieved even without directly affected actors mobilizing their own rights if allies champion needed accommodations.

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Constitutional Directives: Morally‐Committed Political Constitutionalism

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.

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Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

Common law judges have traditionally been concerned about bias and the appearance of bias. Bias is believed to threaten the administration of justice and the legitimacy of legal decision‐making, particularly public confidence in the courts. This article contrasts legal approaches to bias with a range of biases, particularly cognitive biases, familiar to scientists who study human cognition and decision‐making. Research reveals that judges have narrowly conceived the biases that threaten legal decision‐making, insisting that some potential sources of bias are not open to review and that they are peculiarly resistant to bias through legal training and judicial experience. This article explains how, notwithstanding express concern with bias, there has been limited legal engagement with many risks known to actually bias decision‐making. Through examples, and drawing upon scientific research, it questions legal approaches and discusses the implications of more empirically‐based approaches to bias for decision making and institutional legitimacy.

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From Global to Anthropocenic Assemblages: Re‐Thinking Territory, Authority and Rights in the New Climatic Regime

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

In a widely read study, Saskia Sassen uses the territory, authority, rights (TAR) framework in order to analyse the transformation of social life in the West from ‘medieval’ to ‘global’ assemblages. In the context of rapid, planetary climatic change – with many claiming that we have entered a new and climatically uncertain epoch known as the Anthropocene – does the TAR framework provide the relevant conceptual resources required to understand the ‘Anthropocenic’ assemblages of the present? This article examines the limitations of Sassen's TAR framework, arguing that alterative theoretical resources are required in order to grasp the changing dynamics of social life in the context of the new climatic regime.

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Thinking Outside the Box – Eliminating the Perniciousness of Box‐Ticking in the New Corporate Governance Code

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

On 16 July 2018, a new corporate governance code was published. Like previous iterations, it applies on a ‘comply‐or‐explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non‐compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box‐ticking’. Box‐ticking manifests itself firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it, since Adrian Cadbury pioneered the concept of ‘comply‐or‐explain’ in 1992, before proposing an exclusively principles‐driven approach to the corporate governance code which would alleviate box‐ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.

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Reconsidering Transferred Loss

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

The Supreme Court's recent reconsideration of the ‘transferred loss’ exception stopped short of clarifying why it is justified at all. The usual candidates are that it applies to loss transferred with property, or operates more broadly to vindicate the claimant's interest in performance. This note suggests that neither is a sound basis for the rule, and that the promisee ought generally to be entitled to sue for loss suffered by third parties, but is obliged to pass on the damages he recovers.

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Dryden v Johnson Matthey: The Boundaries of Actionable Damage

The Modern Law Review - Wed, 2019-06-12 20:59
Abstract

In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.

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Jaakko Husa, Advanced Introduction to Law and Globalisation, Cheltenham: Edward Elgar, 2018, 218 pp, hb £63.00.

The Modern Law Review - Wed, 2019-06-12 20:59
The Modern Law Review, Volume 82, Issue 4, Page 755-758, July 2019.
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Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Law & Society Review - Wed, 2019-06-12 14:23

Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.

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A Return Journey: Hope and Strength in the Aftermath of Alzheimer ’s

Journal of Bioethical Enquiry - Tue, 2019-06-11 22:00
AbstractSue Petrovski ’s short book,A Return Journey: Hope and Strength in the Aftermath of Alzheimer ’s, is a collection of personal stories as she and her husband cared for her mother during the course of the disease as well as the shared stories of others.A Return Journey provides an insider ’s view of the challenges of caring for those with Alzheimer’s and is useful for current and future caregivers as well as those who are studying and working in the health professions. (Source: Journal of Bioethical Inquiry)
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From Planning to Prototypes: New Ways of Seeing Like a State

The Modern Law Review - Tue, 2019-06-11 20:27
Abstract

All states have pursued what James C. Scott characterised as modernist projects of legibility and simplification: maps, censuses, national economic plans and related legislative programs. Many, including Scott, have pointed out blindspots embedded in these tools. As such criticism persists, however, the synoptic style of law and development has changed. Governments, NGOs and international agencies now aspire to draw upon immense repositories of digital data. Modes of analysis too have changed. No longer is legibility a precondition for action. Law‐ and policy‐making are being informed by business development methods that prefer prototypes over plans. States and international institutions continue to plan, but also seek insight from the release of minimally viable policy mock‐ups. Familiar critiques of law and development work, and arguments for its reform, have limited purchase on these practices, Scott's included. Effective critical intervention in this field today requires careful attention to be paid to these emergent patterns of practice.

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Tackling Voyeurism: Is The Voyeurism (Offences) Act 2019 A Wasted Opportunity?

The Modern Law Review - Tue, 2019-06-11 20:13
Abstract

The Voyeurism (Offences) Act 2019 amended the Sexual Offences Act 2003 to introduce a new offence that would seek to tackle so‐called ‘upskirting’. Whilst it originated as a Private Members Bill, it was quickly taken over by the Government following a backbench blocking manoeuvre. The Act ostensibly seeks to fill a loophole that exists within the law and to protect the sexual autonomy and inherent dignity of women. Instead, I will argue, the legislation deals with a niche area and is a wasted opportunity. Parliament chose to kick the issue into the long grass, from where it will be difficult to recover, with parliamentary time likely to be scarce over the coming years.

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Relational Legal Consciousness of U.S. Citizenship: Privilege, Responsibility, Guilt, and Love in Latino Mixed‐Status Families

Law & Society Review - Thu, 2019-06-06 15:08

Based on interviews with 100 members of mixed‐status families in Los Angeles, California, this article analyzes how U.S. citizen children practice and understand citizenship in the context of punitive laws targeting their loved ones. Participants' narratives of citizenship as privilege, responsibility, and guilt reveal that despite normative conceptions of citizenship as a universally equal status, citizenship intersects with key social markers to determine the contours and inequalities of substantive citizenship. Specifically, U.S. citizens in mixed‐status families make sense of their juridical category when they navigate unrealistic aspirations from relatives, maintain silence about undocumented family members' legal status, manage their fear of family separation through deportation, and take on financial and logistical responsibilities prematurely to help relatives. In each of these ways, family proves to be a key site for the social and relational production of citizenship.

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