The relevance of the study lies in the fact that in the reforms of the system of compulsory enforcement of decisions stipulated the possibility of performing these functions by private enforcers. The purpose of the article is to consider problematic aspects of the legal status of a private enforcer as a participant of legal relations in the enforcement process. The results of the study contain generalizations on the analysis of the legal status of a private (...) enforcer, proposals for amendments to current legislation on private enforcers and the protection of the rights of the parties of enforcement proceedings. Finally, conclusions were formulated, which may be useful to practitioners of various legal professions such private enforcers, lawyers, judges, as well as citizens and legal persons, including those who are parties to the executive procedure. (shrink)

This paper attempts to address the question of how multilingualism in the EU might affect the consistency of private enforcement of competition law. In the literature, there have been concerns raised about the consistency of public enforcement of competition law, so in this paper attention has shifted to concerns about consistency of private enforcement. For the purposes of this paper, a distinction is drawn between rule-making and the application of competition law. The latter falls outside (...) the scope of this paper. The article starts by going straight into aspects of public versus private enforcement of EU competition law and consistency of private enforcement of competition law. Next, by looking at examples of national rules implementing the EU Damages Directive, the author is going to discern what challenges for consistency of private enforcement of competition law are associated with the multilingualism in the EU. (shrink)

There has been considerable interest in the literature about how professions operate in both the private and public interest. This paper examines this issue in the context of the enforcement of the professional code of conduct of a particular professional accounting association. The paper explores whether certain enforcement actions of the association suggest behaviour motivated at least partially by private interest. It then considers whether the consequences of such behaviour or practices are troubling.

In recent years, global corporations and national governments have been enacting a growing number of codes of conduct and public regulations to combat dangerous and degrading work conditions in global supply chains. At the receiving end of this activity, local producers must contend with multiple regulatory regimes, but it is unclear how these regimes interact and what results, if any, they produce. This article examines this dynamic in the sugar sector in Brazil. It finds that although private and public (...) agents rarely communicate, let alone coordinate with one another, they nevertheless reinforce each other’s actions. Public regulators use their legal powers to outlaw extreme forms of outsourcing. Private auditors use the trust they command as company insiders to instigate a process of workplace transformation that facilitates compliance. Together, their parallel actions block the low road and guide targeted firms to a higher road in which improved labor standards are not only possible but even desirable. (shrink)

Normative reflection on the ethics of migration has tended to remain at the level of abstract principle with limited attention to the practice of immigration administration and enforcement. This paper explores the implications of this practice for an ethics of immigration with particular attention to the problem of bureaucratic domination. I contend that migration administration and enforcement cannot overcome bureaucratic domination because of the inherent vulnerability of migrant populations and the transnational enforcement of border controls by multiple (...) public and private actors. The implication is that even if restrictive immigration policies are permissible in principle, the attempt to enforce them leads to injustices that make them ethically unacceptable in practice. (shrink)

At present, the task of enforcing UK competition law lies almost exclusively with a public regulator. One of the aims of the Competition Bill which is currently before Parliament is to enable private litigants to seek redress through the courts for harm caused by unlawful anti-competitive conduct. This article considers the appropriate role of private actions in the enforcement of competition law. It is argued that private actions are of both instrumental and intrinsic value: not only (...) can private actions act as a deterrent against harmful behaviour, but they also enable those harmed by unlawful anti-competitive conduct to seek compensation for injury from the perpetrator. But private enforcement suffers from several shortcomings which are not shared by public enforcement. Accordingly, it is argued that although there is a strong case for ‘privatizing competition regulation’, private enforcement should be used to supplement, rather than supplant, public enforcement. This article also explores the problems within a regulatory scheme which combines both private and public enforcement, drawing on the experience of other jurisdictions to shed light on how such ‘aggregation problems’ might best be resolved. Finally, UK competition regulation is examined from an enforcement perspective. It is argued that the UK Competition Bill has the potential to provide a significantly more effective and efficient scheme of regulation. Whether or not this potential is realized will depend on a number of factors, particularly the ability of UK courts to interpret the legislative prohibitions in a coherent, predictable, and transparent manner which is consistent with the economic theory upon which competition regulation is based. (shrink)

This article explores how the segments of the state police and security organs were transformed into a large private security industry in Russia after 1992. As market reforms were launched, the numbers of private property owners grew dramatically, but the state institutions for the protection of property and dispute settlement were either absent or defunct. This gap was consequently filled with various private institutions, private protection companies and private security services being the major ones. The (...) article studies the context of their emergence, their functions and practices as well as their relations with the state and the criminal sector. (shrink)

The demarcation of the private and public life leads to role of the state in private life. Many individuals have been the unflinching voice for moral dissent. In the western philosophy, debate on private morality and public life was instigated by Attorney General’s Commission Report which was submitted in 1986 and recommended no blanket ban on homosexuality and prostitution. However, a contemporary liberalist, Ronald Dworkin, castigates this Report. He argues that the report has an antagonistic approach because (...) of its permissive attitude towards pornography and the same time hospitability towards the enforcement hypothesis, which holds a preventive attitude towards pornography. In this paper, I analyse the feminists’ discourse of pornography connected with Dworkin and the Committee Report and adds more possibilities that put Dworkin’s arguments closer to the Report. Therefore, in this paper, I argue that Commission Report and Dworkin’s strategy towards pornography embodying as two sides of the same coin, and enforcement strategy is in the far away footing implies antagonistic approach. (shrink)

Although public law scholars have long addressed the problems of accountability generated by private decision-making and "privatization," they have largely ignored this phenomenon in the immigration context. Our ignorance is increasingly indefensible. Millions of employers - private parties - are required by law to screen their workers for unauthorized immigrants, and growing evidence suggests that they use their screening power to ignore workplace protections and to otherwise exploit these workers. This article is the first attempt to apply the (...) insights generated by the privatization literature to immigration law. It argues that our nation's employers have emerged as private immigration screeners who, like airport inspectors screening for ineligible entrants and law enforcement officers screening for criminal noncitizens, assist the Department of Homeland Security in identifying unauthorized workers for removal. More than just agents of exploitation, reframing employers as private screeners demonstrates that they are also agents of the state. Borrowing analytical concepts developing in the privatization literature, I argue that the high risk of abuse and the lack of readily available mechanisms for reducing that risk raise troubling implications over the kind of power that employers wield as private immigration screeners in the workplace. Reframing our nation's employers as private screeners gives theoretical coherence to the discretionary decision-making authority they actually wield, and explains why they have used that authority to exploit workers - as private parties carrying out public duties, they are incentivized to serve their own interests instead of verifying the immigration status of their workers in good faith. Examining the problem of private immigration screening also forces us to reconsider two aspects about immigration screening generally. First, although immigration law tends to reward unauthorized immigrants who lay low and tends to punish those who draw attention to themselves, I suggest that we ought to rethink this logic at least in the context of the workplace. Because workplace violations committed by employers are typically enforced by private parties, punishing unauthorized immigrants who attempt to assert these rights and thus draw attention to themselves, only encourages workplace violations by employers and fosters a culture of lawlessness. Second, thinking about how decision-making authority within immigration law should be allocated between the public and the private contributes to the current conversation over how similar decision-making authority should be allocated between federal entities and local entities. Although questions of accountability have lingered in the backdrop of the immigration federalism debate, I suggest that scholars would be well served to foreground these questions and answer them head-on. (shrink)

Copyright law in recent years has undergone a process of privatization. While weakening the enforceability of conventional legislation (copyright rules), cyberspace facilitates alternative types of regulation such as contracts and technical self-help measures. Regulation by the code is significantly different from traditional types of public ordering (copyright law) and private ordering (contracts). Norms that technically regulate the use of information are not merely self-made they are also self-enforced. Furthermore, the law was recruited to uphold the superiority of such technical (...) self-help measures. The recently adopted U.S. Digital Millenium Copyright Act (DMCA) 1998 prohibits the development and use of technologies designed to circumvent copyright management systems. The underlying assumption of this legislation is that in Cyberspace, the target of regulation should become the technologies that affect users'' behavior rather than the behaviors themselves. This paper critically examines this regulatory approach and highlights its shortcomings. (shrink)

This book examines how regulatory and liability mechanisms have impacted upon product safety decisions in the pharmaceutical and medical devices sectors in Europe, the USA and beyond since the 1950s. Thirty-five case studies illustrate the interplay between the regulatory regimes and litigation. Observations from medical practice have been the overwhelming means of identifying post-marketing safety issues. Drug and device safety decisions have increasingly been taken by public regulators and companies within the framework of the comprehensive regulatory structure that has developed (...) since the 1960s. In general product liability cases have not identified or defined safety issues, and function merely as compensation mechanisms. This is unsurprising as the thresholds for these two systems differ considerably; regulatory action can be triggered by the possibility a product is harmful, whereas establishing liability in litigation requires proving that the product was actually harmful.As litigation normally post-dates regulatory implementation, the 'private enforcement' of public law has generally not occurred in these sectors. This has profound implications for the design of sectoral regulatory and liability regimes, including associated features such as extended liability law, class actions and contingency fees. This book forms a major contribution to the academic debate on the comparative utility of regulatory and liability systems, on public versus private enforcement, and on mechanisms of behaviour control. (shrink)

Over the last several years, the environmental regulatory system has undergone radical changes. Various private normative schemes, ranging from corporate codes to environmental management systems, environmental reporting standards, project-finance codes and green indexes, have assumed an increasingly important role in the regulatory arena. The emergence of private environmental governance as an important transnational phenomenon raises two interrelated puzzles: efficacy and legitimacy. Underlying the efficacy puzzle is a deep-seated suspicion toward "soft" legal instruments, which to some observers represent nothing (...) but a coordinated form of "greenwash." The legitimacy question reflects a contrary concern — that these private regulatory structures represent new forms of global authority that are in need of distinctive legitimization. The Article begins with an outline of this new global terrain, exploring its historical evolution. It argues that the multiple links and cross-sensitivities between the different global private regimes have created a novel ensemble regulatory structure with positive enforcement and normative externalities. The Article then moves to examine the question of efficacy more generally, developing a nuanced understanding of the social dynamic of "soft-law" regulation, which rejects the binary logic underlying the "soft law"-"greenwash" narratives. Regarding the political dimension, the Article argues that this new ensemble network has brought about a new transnational political sphere which is associated with an extensive, cross-institutional quest for legitimacy. The Article then turns its focus to the field of sustainability indexes, focusing on the two leading global indexes: FTSE4Good Index Series and Dow Jones Sustainability Indexes. These indexes are taken as a prototypical case of transnational private ordering. Drawing on a close analysis of the indexes’ guiding documents and on interviews with senior executives from both organizations, the Article considers the unique features of these indexes as forms of governance and the paths through which they claim to affect society. It then moves to explore the mechanisms of legitimacy employed by FTSE4Good and DJSI, highlighting their distinctive visions of legitimization. A close examination of sustainability indexes generates insights, I will argue, regarding the field of private global environmental governance as a whole. In particular, it highlights both the new political opportunities created by the evolving network of transnational governance and the limits this new structure sets for radical critique. (shrink)

The question of whether a liberal state ought to recognize same-sex marriage must be situated within a broader inquiry into the proper relationship between political liberalism and marriage simpliciter. This general inquiry invites a diverse set of responses to the narrower question.A first widely held view—call it thick marital egalitarianism—sees a straightforward link from central liberal values, such as neutrality, equality, and nondiscrimination, to the full and equal inclusion of all willing partnerships into the thickly constituted, state-defined institution of marriage. (...) A second very different account—call it thin marital egalitarianism—sees the liberal commitment to neutrality as requiring a minimal legal framework of support for caring relationships sans additional antecedent restrictions, such as those thickly defining their nature or their purpose . Finally, a third important view—call it liberal marital contractualism—holds that this kind of "minimal marriage" is not minimal enough; a liberal state ought to treat marriage as a primarily "private affair worked out between or among partners, with [its] involvement limited to the enforcement of general laws and particular contracts that are individually designed within a defensible system of contract law". (shrink)

Extant studies on private regulation have not reached a sufficient understanding about the interplay between private and public regulations, due to underdeveloped theoretical framework and the lack of large-sample empirical investigations. Leveraging ISO 14001 adoption among Chinese firms as the research context, the current research draws on the institutional theory to examine how firm’s adoption of ISO 14001 standard, as a specific form of private regulation, affects the incidence of public environmental inspections. To test our arguments, we (...) conduct two empirical studies. Study 1 uses the first-hand data of a corporate social responsibility survey on Chinese manufacturing firms, whereas Study 2 deploys the second-hand longitudinal archival data of the government environmental inspections on Chinese listed firms. Both of the two studies reveal consistent findings that ISO 14001 adoption decreases the incidence of government environmental inspections, and that the effect of ISO 14001 adoption becomes stronger in state-owned enterprises and firms with top management team’s political ties. Our findings are suggestive of a complementary relationship between private and public regulations, in a sense that private regulations can compensate for the weaknesses of public regulations by offering faster, more flexible and cost-efficient means of enforcement, which allows the public authorities to economize on the deployment of public resources to monitor the rest non-compliant firms. (shrink)

China has a civil procedure for collective litigation, which is dubbed Chinese-style class action, as it differs from the U.S.-style class action in some important ways. Using securities class action as a case study, this Article empirically examines both the quantity and quality of reported cases in China. It shows that the number of cases is much lower than expected, but the percentage of recovery is significantly higher than that in the United States. Based on this, the Article casts doubt (...) on the popular belief that China should adopt the U.S.-style class action, and sheds light on the much-debated issue concerning the relationship between public and private enforcement of securities law. The Article also discusses the future prospects of securities class action in China in light of some recent developments which may provide its functional equivalents, including the regulator-brokered compensation fund and public interest group litigation. (shrink)

The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. (...) This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law. (shrink)

My paper will explore boundaries and rights, the public and the private, as to the enforcement of religious legal rules in societies self-consciously founded on Islamic law. I employ as my case-study legal and social controversies aroused by the Saudi Hay’at al-amr bi-al-ma`ruf wa-al-nahy `an al-munkar, the government agency charged with “ordering the good and forbidding the evil.” The paper will first lay out some of the laws fixing the powers of the Hay’at, including various statutes issued by (...) the king but, of equal or greater importance, the received medieval fiqh rules governing the muhtasib . Focus shall be on an issue much debated in the classical law and also a long-time bone of contention in Saudi society, namely the legal limits on the powers of the Hay’at to investigate and punish immoral acts occurring in private. Limits on such powers stem from two sources, both in the law and in social understandings of that law. One source, the more prominent in public debate, concerns revelatory and fiqh and related social norms against spying or prying into people’s behavior and against undue attempts to expose people’s sins. Notably, however, this restriction affects only enforcement. The pervasiveness of laws considered to arise from the relationship of the individual to God still stands. A solitary immoral act performed in privacy can still be a sin and a crime, and punishable if it is somehow legitimately known and proved . The second source of restrictions is more far-reaching, going beyond issues of investigation and proof. As held by the majority of scholars, the Hay’at may not compel or forbid any actions for which the religious-legal ruling is under classical law a matter of legitimate difference of scholarly opinion; or inversely, the Hay’at may compel or forbid only those actions as to which there is a divine command known to a certainty either from a revealed text or from the consensus of scholars. A commonly noted abuse by the Hay’at in Saudi Arabia has been to attempt to enforce rules lacking requisite certainty, such as requiring veiling of the face. Rules known to a certainty have a pervasive role in Islamic constitutional theory. In principle, such rules must be enforced, regardless of whether they concern matters other societies may consider individual or private, such as changing one’s religion. Rules lacking that high degree of certainty cannot – without separate justification on grounds other than religious text – define sins or crimes or be enforced as general rules by the state. Though seemingly scholastic and philosophical, this restriction is potentially crucial in defining a realm of individual autonomy in religious matters and shaping the boundary between public and private in societies self-consciously founded in Islamic law. It is important to examine to what extent the restriction is reflected in legal and social practice in such societies. (shrink)

Using private benefits of control and earnings management data from 41 countries and regions, we provide strong evidence that cultures, together with legal rules and law enforcement, play a critical role in shaping corporate behavior. More specifically, we find that private benefits of control are larger and earnings management is more severe in collectivist as opposed to individualist cultures, consistent with the argument that agency problems between corporate insiders and outside investors are severe in collectivist culture. These (...) results are robust to the inclusion of controls for country wealth, economic heterogeneity across countries, and international differences in ownership concentration. (shrink)

Some critics raise moral objections against corporate social responsibility on account of its supposedly undemocratic nature. Theyargue that it is hard to reconcile democracy with the private discretion that always accompanies the discharge of responsibilities that are not judicially enforceable. There are two ways of constructing this argument: the “perfect-market argument” and the “social-power argument.” This paper demonstrates that the perfect-market argument is untenable and that the social-power argument is sometimes valid. It also asserts that the proponents of the (...) perfect-market argument are mistaken in their assumption that perfect markets are conducive to democracy. There are strong reasons to hold that perfect markets are undesirable from a democratic point of view. A proper conceptualization and differentiation of the relation between “the private and the public” can make this clear. The proponents of the social-power argument sometimes maintain that the democratic deficit can be compensated for by consulting the stakeholdersaffected. Against this, I will argue that the social power argument has nothing to offer affected parties. Still, it will be shown that moderntheory on corporate social responsibility is not well accommodated to the democratic deficit as revealed by the social power argument. (shrink)

This essay examines the ethics of boycotting as a social response to injustice or wrongdoing. The boycotts in question are collective actions in which private citizens withdraw from or avoid consumer or cultural interaction with parties perceived to be responsible for some transgression. Whether a particular boycott is justified depends, not only on the reasonableness of the underlying moral critique, but also on what the boycotters are doing in boycotting. The essay considers four possible interpretations of the kind of (...) act in which boycotting consists: the avoidance of complicity, protest speech, social punishment, or social coercion. Each interpretation provides a plausible account of at least some cases of boycotting, yet each raises distinct challenges to justifying boycotting activities. (shrink)

In response to stakeholder pressure, companies increasingly make ambitious forward-looking sustainability commitments. They then draw on corporate policies with varying degrees of alignment to disseminate and enforce corresponding behavioral rules among their suppliers and business partners. This goal-based turn in private sustainability governance has important implications for its likely environmental and social outcomes. Drawing on paradox theory, this article uses a case study of zero-deforestation commitments in the Indonesian palm oil sector to argue that goal-based private sustainability governance’s (...) characteristics set the stage for two types of paradoxes to emerge: performing paradoxes between environmental, social, and economic sustainability goals, and organizing paradoxes between cooperation and competition approaches. Companies’ responses to these paradoxes, in turn, can explain the lack of full goal attainment and differential rates of progress between actors. These results draw our attention to the complexities hidden behind governance through goal setting in the corporate space, and raise important questions about the viability of similar strategies such as science-based targets and net-zero goals. (shrink)

In a debate between tolerance and intolerance one is disinclined to side with intolerance. Nevertheless that, in a sense, is what I want to do in this paper. The particular debate I have in mind is the old one between H.L.A. Hart and Patrick Devlin about the legal enforcement of moral values. It should be noted, though, that the issue has by no means been settled in the minds of many people. The proposed repeal of the British law prohibiting (...) the promotion of homosexuality (a law known as Section 28) “could destroy Scottish society,” according to Mazhar Malik of Glasgow’s Ethnic Community Resource Centre, echoing Devlin’s concern from the 1960s. In what follows I will first sketch and defend, partially, what I take to be Devlin’s communitarian argument and then attempt to explain what is wrong with it and how this should affect our estimation of the proper relation between law and morals. I will argue that at least some private ‘immorality’ can be defended without recourse to the liberal belief in a morally private sphere. In part I I look at the kind of communitarianism that can be found in Devlin’s work, in part II I support this reading of Devlin and expand on it by looking at some important passages from his work, and in part III I consider the reasons why his argument does not support legislation against gay sex, and, in fact, could be used to defend gay rights. (shrink)

The 1983 health reform in Greece was a major political event in the social policy agenda. The main objective of the reform was the institution of a National Health System and the expansion of the health sector, improved equity, and the assumption of full responsibility for health services delivery by the state. An assessment of the results 10 years after full implementation of the reform shows that despite the expansion of the public sector, the public-private mix in financing and (...) delivery has changed in favour of the private sector, making the Greek health system the most ‘privatised’ among the EU countries. The main reasons why the health reform failed to meet its objectives was the restrictive enforcement of full-time and exclusive hospital employment for doctors, the virtual ban on private hospital expansion, the much faster introduction and diffusion of new health technology by the private sector, and poor management, planning and control in the public sector. A new health reform voted into law in the summer of 1997 shows promise of redressing some of the shortcomings of the 1983 reform. (shrink)

Despite its obvious advantages, the disruptive development of neurotechnology can pose risks to fundamental freedoms. In the context of such concerns, proposals have emerged in recent years either to design human rights de novo or to update the existing ones. These new rights in the age of neurotechnology are now widely referred to as “neurorights.” In parallel, there is a considerable amount of ongoing academic work related to updating the right to freedom of thought in order to include the protection (...) of “freedom of thinking” (i.e., freedom of thought itself) and not only its social manifestations. Neurorights such as cognitive liberty, free will, mental freedom, and mental self-determination come into play here. Importantly, freedom of thought has often been considered a prerequisite for all the other fundamental freedoms and rights. In any case, just as other rights require additional legal instruments to guarantee their compliance, substantial neurorights will probably require specific complementary developments in procedural law. In relation to this, there is a long tradition of habeas corpus as an emergency remedy to enforce the rights of a citizen against illegal or arbitrary detention. More recently, the habeas data writ has been proposed and admitted in certain countries to guarantee a person’s ownership of their personal data. In this article, we propose to expand this procedural apparatus by incorporating a third habeas, which we call habeas cogitationem: a writ aimed primarily at enforcing the right to freedom of thinking (and, subsidiarily, the rest of neurorights) against direct, harmful interferences in a person’s thought process by both public and private perpetrators. (shrink)

In a global economic landscape of hyper-commodification and financialisation, efforts to assimilate digital art into the high-stakes commercial art market have so far been rather unsuccessful, presumably because digital artworks cannot easily assume the status of precious object worthy of collection. This essay explores the use of blockchain technologies in attempts to create proprietary digital art markets in which uncommodifiable digital artworks are financialised as artificially scarce commodities. Using the decentralisation techniques and distributed database protocols underlying current cryptocurrency technologies, such (...) efforts, exemplified here by the platform Monegraph, tend to be presented as concerns with the interest of digital artists and with shifting ontologies of the contemporary work of art. I challenge this characterisation, and argue, in a discussion that combines aesthetic theory, legal and philosophical theories of intellectual property, rhetorical analysis and research in the political economy of new media, that the formation of proprietary digital art markets by emerging commercial platforms such as Monegraph constitutes a worrisome amplification of long-established, on-going efforts to fence in creative expression as private property. As I argue, the combination of blockchain-based protocols with established ambitions of intellectual property policy yields hybrid conceptual-computational financial technologies (such as self-enforcing smart contracts attached to digital artefacts) that are unlikely to empower artists but which serve to financialise digital creative practices as a whole, curtailing the critical potential of the digital as an inherently dynamic and potentially uncommodifiable mode of production and artistic expression. (shrink)

The globalizing or totalizing imposition of a particular understanding of justice, fairness, or equality, as seen, for example, in Canada's single health care system, which forbids the sale of private insurance and the purchase of better basic health care, cannot be justified in general secular terms because of the following limitations: the plurality of understandings of justice, fairness, and equality, and the inability to establish one understanding as canonical. The secular state lacks plausible moral authority for the coercive imposition (...) of one such account on peaceable, consenting adults. This state of affairs, with regard to the weakness of human moral epistemological powers, means that the secular state fails to have the moral authority to forbid coercively the sale and purchase of organs. It further lacks the secular, moral authority to impose equal access to organ transplantations. Assertions of such authority amount to reckless claims of fairness, and for this reason, health care policy must be set within the constraints of limited, constitutional regimes. (shrink)

Recent scholarship has considered the implications of the rise of voluntary private standards in food and the role of private actors in a rapidly evolving, de-facto ‘mandatory’ sphere of governance. Standards are an important element of this globalising private sphere, but are an element that has been relatively peripheral in analyses of power in agri-food systems. Sociological thought has countered orthodox views of standards as simple tools of measurement, instead understanding their function as a governance mechanism that (...) transforms many things, and people, during processes of standardisation. In a case study of the Australian retail supermarket duopoly and the proprietary standards required for market access this paper foregrounds retailers as standard owners and their role in third-party auditing and certification. Interview data from primary research into Australia’s food standards captures the multifaceted role supermarkets play as standard-owners, who are found to impinge on the independence of third-party certification while enforcing rigorous audit practices. We show how standard owners, in attempting to standardize the audit process, generate tensions within certification practices in a unique example of ritualism around audit. In examining standards to understand power in contemporary food governance, it is shown that retailers are drawn beyond standard-setting into certification and enforcement, that is characterized by a web of institutions and actors whose power to influence outcomes is uneven. (shrink)

This is a very special volume of the Yearbook of Private International Law as it represents the celebration of the tenth anniversary of its first publication. It continues to provide interesting information on the future evolution in private international law. Contents includes: The New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments of 30 October 2007. Commercial Agents under European Jurisdiction Rules. Grunkin-Paul and Beyond - A Seminal Case in the Field of International Family (...) Law. The New Rome I / Rome II / Brussels I-Synergy. Rome I and Contracts on Intellectual Property. Rome I and Distribution Contracts. Rome I and Franchise Contracts. Rome I and Financial Market Contracts. Special Section on Maintenance Obligations. (shrink)

Corporate social responsibility (CSR) concerns the realm of business behavior in which the firm tries to effectively manage its business and non-market environment interface. Coerced CSR refers to taking socially responsible action in response to or in anticipation of retaliation in some form (boycott, adverse publicity, introduction of regulatory laws, etc.) from interest groups who are not directly part of the market to which the firm caters. In contrast, strategic CSR or altruistic CSR refers to socially responsible activities undertaken out (...) of enlightened self-interest. The focus of this paper is to understand whether the impact of coercion is different for government-owned organizations and privately owned firms in developing countries. Activities that are in response to or in anticipationof threats by interest groups are identified and compared across publicly and privately owned firms, against the backdrop of weak enforcement of fairly stringent environmental regulation. We then generalize our observations and attempt to distinguish the intensity of pressures felt by public and privately owned firms and their speed of response. As a result of this understanding, we attempt to suggest specific policy mixes for various types of industry, depending on whether they are dominated by the public sector or private sector. (shrink)

The relationship between morality and law is one of the issues that has provoked considerable controversies. Among others, an important discussion is whether obeying “conventional morality” in public and/or private spheres should be legally enforced by legislators. In this paper, we will look at the controversies over the issue of the “legal enforcement of morality” in the well-known debate between Herbert Hart and Patrick Devlin. In light of Richard Hare's moral philosophy, we will begin by distinguishing three realms (...) of morality. We will then clarify Deviln's view on “conventional morality”, employing the terminology derived from Hare's moral philosophy. After elaborating the implications, consequences, and roots of “conventional morality” in Devlin's view, we will turn to the relation between law and “conventional morality”. Finally, we will criticize Devlin's approach and highlight our objections to his account. By showing the flaws of Devlin's conception of “conventional morality,” we will challenge her legal view of morals. (shrink)

The right to private property is among the most fundamental in liberal theory. For many liberals the idea of the state is grounded in its role as a protector of private property. If the liberal state is justified by its ability to protect property, the modern welfare state is often justified by its ability to meet needs. According to a view commonly referred to as “welfarism,” the very fact that needs exist implies there is a moral obligation to (...) meet them. In this Article I appeal to Rawlsian contractualist justification, including the “criterion of reciprocity,” in developing a third manner of thinking about the relationship between property and welfare. I argue that welfare rights are necessary conditions for justifying a role for the state in enforcing the “right to exclude,” a fundamental element of private ownership. My Article thus aims to use Rawls’ account of justification, outlined in his later works, to theorize the notion of property-owning democracy from Theory of Justice. (shrink)

The American Institute of Certified Public Accountants monitors the misconduct of its members using the AICPA Code of Professional Conduct. To accomplish this task, the AICPA relies on various stakeholders to report known violations of its CPC. We examine the full population of sanctions imposed by the AICPA on its members under its CPC from 2008–2013 to identify recent trends in the misconduct of accounting professionals. While we find that multiple stakeholders identify and report violations, we also find that the (...) most common types of violations remain consistent with those reported in the 1990s. Further, we develop a taxonomy based on prior accounting literature to determine whether the AICPA CPC is being enforced to defend the public interest and/or the private interests of the accounting profession. In contrast to prior studies, our results suggest that as the accounting profession emerges from a recession and period of intense public scrutiny, the AICPA CPC is largely being enforced to defend the public interest. This public interest focus was most pronounced during the recessionary years of 2008–2010, as evident from misconduct reported by parties such as the Internal Revenue Service, Securities and Exchange Commission, Public Company Accounting Oversight Board, and state boards of accountancy. Although key stakeholders have recently focused on reporting misconduct that threatens the public interest, we believe there are still areas in need of improvement, especially around the level of detail provided in the AICPA’s sanction records. We propose some possible solutions to improve public transparency. (shrink)

While society debates whether and how to use public funds to support work on human embryonic stem cells (hESCs), many scientific groups and businesses debate a different question — the extent to which patents that cover such stem cells should be permitted to limit or to tax their research. The Wisconsin Alumni Research Foundation (WARF), a non-profit foundation that manages intellectual property generated by researchers at the University of Wisconsin at Madison, owns three patents that have been at the heart (...) of the latter controversy The story of WARF's patents and the controversy they have fostered highlights not only continuing tensions between proprietary and nonproprietary approaches to developing science and technology, but also an at least partly reassuring capacity of public and private sectors to deal with those tensions in a way that can render them substantially manageable, and frequently more manageable as a technology matures. More particularly, the cumulative story of WARF's patents features three leitmotifs that suggest how an attentive and engaged public sector might commonly succeed in working with public and private sector actors to achieve workable balances between proprietary rights and more general social interests: (1) right holders' decisions to pursue less than full rights assertion or enforcement; (2) the ability of government and other public sector actors to help bring about such decisions through co-option or pressure; and (3) the frequent availability or development of technological alternatives that limit research bottlenecks. (shrink)

The 1983 health reform in Greece was a major political event in the social policy agenda. The main objective of the reform was the institution of a National Health System and the expansion of the health sector, improved equity, and the assumption of full responsibility for health services delivery by the state. An assessment of the results 10 years after full implementation of the reform shows that despite the expansion of the public sector, the public-private mix in financing and (...) delivery has changed in favour of the private sector, making the Greek health system the most ‘privatised’ among the EU countries. The main reasons why the health reform failed to meet its objectives was the restrictive enforcement of full-time and exclusive hospital employment for doctors, the virtual ban on private hospital expansion, the much faster introduction and diffusion of new health technology by the private sector, and poor management, planning and control in the public sector. A new health reform voted into law in the summer of 1997 shows promise of redressing some of the shortcomings of the 1983 reform. (shrink)

Carol P. Christ discusses her new multi-pronged definition of patriarchy as an integral system: male dominance is enforced by violence which is a product of war; the control of female sexuality ensures the transfer private property and slaves which are the spoils of war in the male line; and the system as a whole is legitimated by religion. She argues, based on the new research on matriarchies that patriarchy is not eternal or universal, but that it arose in history, (...) and is inseparable from the rise of warfare and other forms of domination. (shrink)

BackgroundPrivate umbilical cord blood banking is a for-profit industry in which parents pay to store blood for potential future use. Governments have noted the tendency for private banks to oversell the potential for cord blood use, especially in relation to speculative cell therapies not yet supported by clinical evidence. We assessed the regulatory landscape governing private cord bank marketing in Canada.Main bodyBecause the problematic marketing of private cord blood banking for future use often relates to speculative future (...) cell therapies that do not exist and are not being advertised for current clinical use, most private blood bank marketing seems to fall outside Health Canada’s regulatory scope. However, this problematic marketing is regulated by the Competition Bureau pursuant to the Competition Act. While representations relating to future hypothetical treatments may not always be subject to the legal requirement for claim substantiation, the law also prohibits individuals and companies from knowingly or recklessly making representations that are “false or misleading in a material respect.” A representation is materially false or misleading when it could “influence a consumer’s behavior or purchasing decisions,” and consumers are likely to be considered to be “credulous and inexperienced” for the purposes of assessing an advertisement’s general impression. Because all of the potential benefit of the banking is derived from the potential future use of the biological material for health interventions directed toward the customers and their relatives, and because we know the best available medical evidence indicates a very low probability of utility in this context, we can say with confidence that some private cord blood banking claims are materially misleading. Moreover, to the extent that medical professionals are involved in private bank interactions with customers or hold ownership stakes in private banks, they are subject to professional codes, standards of practice, and potentially fiduciary obligations that further prohibit misleading marketing.ConclusionsPrivate cord blood bank marketing that advertises hypothetical future treatments can be misleading and may influence consumer behaviour. This marketing may breach existing advertising law. Regulatory bodies should enforce the law in order to help prevent public health and personal financial harm. (shrink)

Corporate social responsibility (CSR) concerns the realm of business behavior in which the firm tries to effectively manage its business and non-market environment interface. Coerced CSR refers to taking socially responsible action in response to or in anticipation of retaliation in some form (boycott, adverse publicity, introduction of regulatory laws, etc.) from interest groups who are not directly part of the market to which the firm caters. In contrast, strategic CSR or altruistic CSR refers to socially responsible activities undertaken out (...) of enlightened self-interest. The focus of this paper is to understand whether the impact of coercion is different for government-owned organizations and privately owned firms in developing countries. Activities that are in response to or in anticipationof threats by interest groups are identified and compared across publicly and privately owned firms, against the backdrop of weak enforcement of fairly stringent environmental regulation. We then generalize our observations and attempt to distinguish the intensity of pressures felt by public and privately owned firms and their speed of response. As a result of this understanding, we attempt to suggest specific policy mixes for various types of industry, depending on whether they are dominated by the public sector or private sector. (shrink)

Civil wrongs occupy a significant place in private law. They are particularly prominent in tort law, but equally have a place in contract law, property and intellectual property law, unjust enrichment, fiduciary law, and in equity more broadly. Civil wrongs are also a preoccupation of leading general theories of private law, including corrective justice and civil recourse theories. According to these and other theories, the centrality of civil wrongs to civil liability shows that private law is fundamentally (...) concerned with the expression and enforcement of norms of justice appropriate to interpersonal interaction and association. Others, sounding notes of caution or criticism, argue that a preoccupation with wrongs and remedies has meant neglect of other ways in which private law serves justice, and ways in which private law serves values other than justice. This volume comprises original papers written by a wide variety of legal theorists and philosophers exploring the nature of civil wrongs, their place in private law, and their relationship to other forms of wrongdoing. (shrink)

This paper examines the recent rise of initiatives for responsible agricultural investment and provides a preliminary assessment of their likely success in curbing the ecological and social costs associated with the growth in private financial investment in the sector over the past decade. I argue that voluntary responsible investment initiatives for agriculture are likely to face similar weaknesses to those experienced in responsible investment initiatives more generally. These include vague and difficult to enforce guidelines, low participation rates, an uneven (...) business case, and confusion arising from multiple and competing initiatives. In addition, the large diversity of investors and high degree of complexity of financial investments further complicate efforts to discern who bears the burden of responsibility in practice. As a result, there is a strong likelihood that voluntary governance initiatives for responsible agricultural investment will shift discourse more than they will change practice. (shrink)