The UN Secretariat provides annual statistics on allegations of sexual exploitation and abuse made against peacekeeping personnel, with reduced numbers of allegations leading to claims of success for the UN’s ‘zero tolerance’ policy. This article explores the use of data as ‘technologies’ of global governance, to examine the function that these annual statistics serve for the UN and the impact that they have on calls for legal reform. Thus far, the statistics have attracted little academic appraisal. Yet, they have been used to establish the UN’s authority to resolve the ‘problem’ of sexual exploitation and abuse, diminishing the space for critique of UN policy and undermining the quest for improved legal arrangements.
{"title":"Sex, Statistics, Peacekeepers and Power: UN Data on Sexual Exploitation and Abuse and the Quest for Legal Reform","authors":"K. Grady","doi":"10.1111/1468-2230.12225","DOIUrl":"https://doi.org/10.1111/1468-2230.12225","url":null,"abstract":"The UN Secretariat provides annual statistics on allegations of sexual exploitation and abuse made against peacekeeping personnel, with reduced numbers of allegations leading to claims of success for the UN’s ‘zero tolerance’ policy. This article explores the use of data as ‘technologies’ of global governance, to examine the function that these annual statistics serve for the UN and the impact that they have on calls for legal reform. Thus far, the statistics have attracted little academic appraisal. Yet, they have been used to establish the UN’s authority to resolve the ‘problem’ of sexual exploitation and abuse, diminishing the space for critique of UN policy and undermining the quest for improved legal arrangements.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125622191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the responses of national courts to the ECtHR's decision in Salduz v Turkey that suspects be provided with access to a lawyer before they are first interrogated by the police. It argues that harmonious application of human rights standards in criminal proceedings should build upon common values underpinning the procedural traditions of member states. ECtHR success in gaining acceptance for the principle of access to a lawyer during police interrogation, anchoring it in the privilege against incrimination, is contrasted with resistance towards giving the defence any active role during criminal investigations. It is argued that this resistance can be overcome by an appeal to safeguards that have long dominated the trial process. As the investigation phase increasingly determines the outcome of criminal proceedings, standards of fairness traditionally reserved for the trial process should be applied also to this phase in order to provide suspects with an effective defence.
{"title":"Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence","authors":"J. Jackson","doi":"10.1111/1468-2230.12227","DOIUrl":"https://doi.org/10.1111/1468-2230.12227","url":null,"abstract":"This article examines the responses of national courts to the ECtHR's decision in Salduz v Turkey that suspects be provided with access to a lawyer before they are first interrogated by the police. It argues that harmonious application of human rights standards in criminal proceedings should build upon common values underpinning the procedural traditions of member states. ECtHR success in gaining acceptance for the principle of access to a lawyer during police interrogation, anchoring it in the privilege against incrimination, is contrasted with resistance towards giving the defence any active role during criminal investigations. It is argued that this resistance can be overcome by an appeal to safeguards that have long dominated the trial process. As the investigation phase increasingly determines the outcome of criminal proceedings, standards of fairness traditionally reserved for the trial process should be applied also to this phase in order to provide suspects with an effective defence.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"282 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129988717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Domestic work has been an integral part of Indian economy for a long time now both as paid and unpaid care work. With a burgeoning middle class and increasing inequality, this sector has transformed into a readily available livelihood option for many women across India. This field of work is tied to migration to big cities, unqualified labour conditions and often exploitation of various kinds. This paper looks at informalised domestic labour under the purview of forced labour and that of bonded labour. By mapping the stakeholders involved and contextualising the policy landscape, the origins of policy initiation and the immediate challenges to its implementation is analysed. Reading with ILO convention 189 and the National Policy on Domestic Work and other concomitant laws in India, the authors argue for the need to notify the policy on domestic labour and formalise it. Such a policy decision would accrue economic benefits by formalising working conditions, impact legal rights by streamlining job description and improve social condition by monitoring the living conditions of men and women engaged in such work.
{"title":"Right to Dignified Labour: A Case for Notifying the National Policy on Domestic Workers in India","authors":"Francis Kuriakose, Deepa Kylasam Iyer","doi":"10.2139/SSRN.2746726","DOIUrl":"https://doi.org/10.2139/SSRN.2746726","url":null,"abstract":"Domestic work has been an integral part of Indian economy for a long time now both as paid and unpaid care work. With a burgeoning middle class and increasing inequality, this sector has transformed into a readily available livelihood option for many women across India. This field of work is tied to migration to big cities, unqualified labour conditions and often exploitation of various kinds. This paper looks at informalised domestic labour under the purview of forced labour and that of bonded labour. By mapping the stakeholders involved and contextualising the policy landscape, the origins of policy initiation and the immediate challenges to its implementation is analysed. Reading with ILO convention 189 and the National Policy on Domestic Work and other concomitant laws in India, the authors argue for the need to notify the policy on domestic labour and formalise it. Such a policy decision would accrue economic benefits by formalising working conditions, impact legal rights by streamlining job description and improve social condition by monitoring the living conditions of men and women engaged in such work.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"205 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132226285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-09-01DOI: 10.1111/j.1467-6478.2016.00761.x
H. Carr, D. Cowan
Although there are now sophisticated techniques for the analysis of social media, socio-legal studies has yet to draw on them fully. In this article, we demonstrate how Twitter can produce insights about protest, law, and legality, through a case study of protests against the ‘bedroom tax’. The first involved challenging a policy in the courts using a test case or cases. We discuss the litigation strategies and the mess they created and counterpose those strategies with those of four prolific ‘tweeps’ who participated in our study. We argue that, despite the small number of participants, these people have, in their own way, been enormously influential and made things happen. Our position is not evaluative of the different strategies – but, rather, one that recognizes that legality is mobilized in different ways.
{"title":"What's the Use of a Hashtag? A Case Study","authors":"H. Carr, D. Cowan","doi":"10.1111/j.1467-6478.2016.00761.x","DOIUrl":"https://doi.org/10.1111/j.1467-6478.2016.00761.x","url":null,"abstract":"Although there are now sophisticated techniques for the analysis of social media, socio-legal studies has yet to draw on them fully. In this article, we demonstrate how Twitter can produce insights about protest, law, and legality, through a case study of protests against the ‘bedroom tax’. The first involved challenging a policy in the courts using a test case or cases. We discuss the litigation strategies and the mess they created and counterpose those strategies with those of four prolific ‘tweeps’ who participated in our study. We argue that, despite the small number of participants, these people have, in their own way, been enormously influential and made things happen. Our position is not evaluative of the different strategies – but, rather, one that recognizes that legality is mobilized in different ways.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114815307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The chief goal of private law is to guide and facilitate interpersonal conduct. In fields such as contracts, property, and corporate governance, lawmakers have an essential normative role of envisioning ideal types of collective action and designing legal and organizational mechanisms that will streamline these types of action, while also giving parties substantial leeway to tailor their interpersonal legal relations. This Article argues that for such a legal design to be effective, regardless of the substantive content of its underlying normative values, lawmakers must consider the actual congruence between the ideal types of collective action envisioned by private law norms and the prevailing cultural orientations, values, and beliefs that practically guide everyday interactions in a certain society or group. To the extent that a private law reform wishes to promote a new type of collective action that is not initially supported by such grassroots forces, it must find ways to enable at least an incremental shift in the relevant cultural traits to facilitate the desired modes of interpersonal collaboration. Rejecting an all-or-nothing approach to cultural change, this Article underscores the key role of collective-action organizations, such as business corporations or homeowner associations, in mediating between private law reforms and incremental cultural shifts.
{"title":"The Culture of Private Law","authors":"Amnon Lehavi","doi":"10.2139/ssrn.2740033","DOIUrl":"https://doi.org/10.2139/ssrn.2740033","url":null,"abstract":"The chief goal of private law is to guide and facilitate interpersonal conduct. In fields such as contracts, property, and corporate governance, lawmakers have an essential normative role of envisioning ideal types of collective action and designing legal and organizational mechanisms that will streamline these types of action, while also giving parties substantial leeway to tailor their interpersonal legal relations. This Article argues that for such a legal design to be effective, regardless of the substantive content of its underlying normative values, lawmakers must consider the actual congruence between the ideal types of collective action envisioned by private law norms and the prevailing cultural orientations, values, and beliefs that practically guide everyday interactions in a certain society or group. To the extent that a private law reform wishes to promote a new type of collective action that is not initially supported by such grassroots forces, it must find ways to enable at least an incremental shift in the relevant cultural traits to facilitate the desired modes of interpersonal collaboration. Rejecting an all-or-nothing approach to cultural change, this Article underscores the key role of collective-action organizations, such as business corporations or homeowner associations, in mediating between private law reforms and incremental cultural shifts.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133119096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dissonance between patent law and antitrust law has persisted despite a century of varied attempts at harmonization. This Article suggests an elegant, novel solution: preemption doctrine. Recognizing the limits of and costs associated with antitrust law, the Supreme Court has already held that where an alternative regulatory authority exists — and overlapping application of antitrust regulation would lead to conflict — antitrust law may be implicitly preempted. But that doctrine remains almost entirely unexplored. This Article applies that precedent to the patent-antitrust context, analyzing where patent regulatory authority exists, and where simultaneous antitrust regulation is likely to generate conflicting guidance and requirements. Under the Court’s precedent, this combination of overlap and conflict should be enough to support preemption, at least in certain kinds of patent cases. Moreover, this Article explores how the unique nature of patents and the interplay — and tension — that patent law alone has with antitrust law supports an even broader interpretation of existing preemption doctrine.
{"title":"Patents v. Antitrust: Preempting Conflict","authors":"Matthew Sipe","doi":"10.2139/SSRN.2743701","DOIUrl":"https://doi.org/10.2139/SSRN.2743701","url":null,"abstract":"The dissonance between patent law and antitrust law has persisted despite a century of varied attempts at harmonization. This Article suggests an elegant, novel solution: preemption doctrine. Recognizing the limits of and costs associated with antitrust law, the Supreme Court has already held that where an alternative regulatory authority exists — and overlapping application of antitrust regulation would lead to conflict — antitrust law may be implicitly preempted. But that doctrine remains almost entirely unexplored. This Article applies that precedent to the patent-antitrust context, analyzing where patent regulatory authority exists, and where simultaneous antitrust regulation is likely to generate conflicting guidance and requirements. Under the Court’s precedent, this combination of overlap and conflict should be enough to support preemption, at least in certain kinds of patent cases. Moreover, this Article explores how the unique nature of patents and the interplay — and tension — that patent law alone has with antitrust law supports an even broader interpretation of existing preemption doctrine.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116859067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper discusses a series of ECJ judgments on national mortgage enforcement proceedings in light of the Directive on Unfair Terms in Consumer Contracts. According to the Court, national courts must be able to provide interim measures suspending mortgage enforcement proceedings, thereby allowing the debtor to retain ownership of the property while the (un)fairness of clauses in the loan agreement is assessed. This in turn enables national courts to strike out these clauses if they are found to violate the Directive, thereby altering the relationship between debtor and creditor. Consequently, rights in the property held by the debtor, creditor, and third parties such as a second mortgage holder are directly affected by the ECJ’s intervention in national mortgage enforcement proceedings. This paper clarifies exactly how the parties’ rights in the property are affected and what these judgments mean for the protection of private home ownership in the ungoing economic crisis.
{"title":"Parties' Rights in Mortgages Property after ECJ Rulings on Mortgage Enforcement Proceedings","authors":"E. Ramaekers","doi":"10.2139/SSRN.2594766","DOIUrl":"https://doi.org/10.2139/SSRN.2594766","url":null,"abstract":"This paper discusses a series of ECJ judgments on national mortgage enforcement proceedings in light of the Directive on Unfair Terms in Consumer Contracts. According to the Court, national courts must be able to provide interim measures suspending mortgage enforcement proceedings, thereby allowing the debtor to retain ownership of the property while the (un)fairness of clauses in the loan agreement is assessed. This in turn enables national courts to strike out these clauses if they are found to violate the Directive, thereby altering the relationship between debtor and creditor. Consequently, rights in the property held by the debtor, creditor, and third parties such as a second mortgage holder are directly affected by the ECJ’s intervention in national mortgage enforcement proceedings. This paper clarifies exactly how the parties’ rights in the property are affected and what these judgments mean for the protection of private home ownership in the ungoing economic crisis.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"96 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134424903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We respond to a recent proposal by Profs. Lemley and Shapiro for compulsory binding final-offer (baseball-style) arbitration for disputes over licensing FRAND-commited standards-essential patents. We demonstrate that, contrary to their suggestions, their proposal is not "best practices" for any standards-setting organization and suffers from a number of practical and conceptual problems.
{"title":"FRAND Commitments in Theory and Practice: A Response to Lemley and Shapiro's 'A Simple Approach'","authors":"Edward F. Sherry, D. Teece, P. Grindley","doi":"10.2139/ssrn.2764615","DOIUrl":"https://doi.org/10.2139/ssrn.2764615","url":null,"abstract":"We respond to a recent proposal by Profs. Lemley and Shapiro for compulsory binding final-offer (baseball-style) arbitration for disputes over licensing FRAND-commited standards-essential patents. We demonstrate that, contrary to their suggestions, their proposal is not \"best practices\" for any standards-setting organization and suffers from a number of practical and conceptual problems.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124223331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the “digital threat” discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.
{"title":"Digital Piracy Debunked: A Short Note on Digital Threats and Intermediary Liability","authors":"Giancarlo F. Frosio","doi":"10.14763/2016.1.400","DOIUrl":"https://doi.org/10.14763/2016.1.400","url":null,"abstract":"In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the “digital threat” discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114025845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The use of M&A in bankruptcy has increased dramatically, leading to concerns that Chapter 11 leads to excessive liquidation of viable firms. We examine the drivers of M&A activity, based on factors specific to Chapter 11 as well as more general factors that drive M&A waves for non-distressed firms. M&A in bankruptcy is counter-cyclical, and is more likely when the costs of financing a reorganization are greater than financing costs to a potential acquirer. Consistent with a senior creditor liquidation bias, the greater use of secured debt leads to more sales in bankruptcy, but this result holds only for sales that preserve going concern value. We also show that overall creditor recovery rates are higher for firms with more secured debt, and that recoveries and post-bankruptcy survival rates are not different when bankrupt firms sell businesses as going concerns versus reorganizing independently. Our results are consistent with the efficient redeployment of assets via sales in bankruptcy.
{"title":"Cashing Out: The Rise of M&A in Bankruptcy","authors":"Stuart C. Gilson, E. Hotchkiss, Matthew G Osborn","doi":"10.2139/ssrn.2547168","DOIUrl":"https://doi.org/10.2139/ssrn.2547168","url":null,"abstract":"The use of M&A in bankruptcy has increased dramatically, leading to concerns that Chapter 11 leads to excessive liquidation of viable firms. We examine the drivers of M&A activity, based on factors specific to Chapter 11 as well as more general factors that drive M&A waves for non-distressed firms. M&A in bankruptcy is counter-cyclical, and is more likely when the costs of financing a reorganization are greater than financing costs to a potential acquirer. Consistent with a senior creditor liquidation bias, the greater use of secured debt leads to more sales in bankruptcy, but this result holds only for sales that preserve going concern value. We also show that overall creditor recovery rates are higher for firms with more secured debt, and that recoveries and post-bankruptcy survival rates are not different when bankrupt firms sell businesses as going concerns versus reorganizing independently. Our results are consistent with the efficient redeployment of assets via sales in bankruptcy.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115151086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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