Basic Legal Structure Research Articles

ABOLISH THE EMPLOYER PREROGATIVE, UNLEASH WORK LAW

Employers are sovereigns in their workplace. Market power disparities, enforcement gaps, and the dwindling power of the beaten US labor movement seem to guarantee that. But it is law that anoints employers as kings. Work law doctrine calls it the “employer prerogative,” and it stands as the default governing rule in the workplace. This rule lays the basic legal structure of the workplace: all decisions fall within the employer’s discretion unless altered by contractual agreements or mandated differently by a statute or court doctrine. The entire array of legal interventions in the workplace, and their accompanying normative debates, flows from this legal rule. This Article calls to abolish the employer prerogative. It is too sticky, and subsequently, it skews all of work law theory and practice toward management interests. The Article begins by describing how the cumulative effects of a judicial presumption of prerogative, labor market power disparities, the employment at-will doctrine, and enforcement gaps make modifying this default a Sisyphean task. The argument follows by describing two mechanisms that tie the employer prerogative to the uphill political struggle of redistributing power in the workplace. To preserve their control, employers can use their prerogative to evade workplace interventions or punish workers and their communities for pursuing redistributive workplace policies. At the expense of any goal work law advocates might pursue, the employer prerogative is self-entrenching. Perhaps the most troubling aspect of this default rule is that challenging it is a taboo of a sort. Hence, the Article concludes by offering a novel framework for considering possible alternatives to it. The Article describes alternative default governance rules and presents a set of new and renewed legal institutions designed to reallocate these default authorities among multiple stakeholders. These novel interventions offer the structural analysis and remedies vitally needed to correct the workplace’s skewed status quo of power and to actualize work law’s potential – unleashing it from its employer prerogative constraints.

The Structure of Private Funds, Their Relation to Private Firms, and the Implications for Accounting, Economics, and Finance Research

Private equity and venture capital funds (“private funds”) are an increasingly important component of the economy and hold substantial ownership in other private firms. These funds have unique legal organizational structures, which academic literature has not yet accounted for. This paper has three main goals. First, we lay out the basic legal structure of private funds and describe how these funds interact with the firms they own (“portfolio companies”). Second, we explain the implications of this structure for recent finance research, focusing on how funds’ structure affects secondary market pricing of funds. Third, we discuss how both private fund and private firm structure affects accounting and economics research on private firms. Because a large number of private firms are now owned by private funds, falling under the funds’ unique organizational structure, we urge caution in drawing conclusions regarding private firms when researchers are unable to clearly distinguish between stand-alone private firms and those private firms owned and controlled by private funds (or other parent entities). We also specifically discuss the use of tax return data to study private firms; under the current laws of the U.S., these data are unlikely to allow researchers to isolate stand-alone firms, making these data unreliable for evaluating certain private firm attributes in economics, as well as private firm financial reporting choices in accounting.

Structural elements of the right to the truth

This article refers specifically to the current state of the discussion on the basic legal structure of the right to truth, its size and degree of legality and reports initial results on the evaluation of the models adopted for peace in Colombia, in light of the international standards and practices.

About Legal Notions: Cession, Novation, Subrogation and Assignation

This paper deals with the legal notions of cession, novation, subrogation and assignation in comparative perspective and especially with regard to their understanding and treatment in the roman law. At the outset the paper presents some general legal problems connected with the legal definition of the abovementioned legal terms in order to clarify their exact legal meaning.Paper especially deals with the definitions of cessio and novatio in roman legal system according to Gaius and Justinianus and with the notion of the doctrine of res judicata.In conclusion the author proposes further analysis and reconsideration of the domestic regulation of mentioned legal institutes and avoidance of duplication in domestic legal laws and regulations with acceptance of different legal solutions from different legal systems which are not consistent with basic legal structure of the domestic legal system.

Identification of legal gaps

The article deals with identification of legal gaps, without delving into methods and ways in which they can be filled. The aim is to offer certain approaches and methods for their identification. A legal gap is understood here as a lack of a legal norm to regulate a certain situation not falling into a legally free space, viewed from the perspective of an entirety such as a piece of legislation. Determined as such, it is a relative concept demanding to be determined in relation to the selected entirety. Existence of a gap in relation to a particular entirety does not have to mean that it exists from the perspective of the legal system. It is questionable if a legal gap can ever exist from the perspective of the legal system, since the legal system always envisages mechanisms for filling legal gaps and does not recognize them as such. The method presented here is based on observation of smaller legal units - legal institutes. A legal institute is understood here as a well-round - ed complex which should encompass and resolve several groups of elements and, in that way, determine itself towards the issue being regulated, but also towards other legal institutes within a wider totality observed (e.g. a piece of legislation or a group of laws regulating a certain field). Legal norms and legal institutes produce effects in space and time and towards entities. These are, therefore, the first elements to be determined: space, time and entities. These elements are called elements of real structure. It has been noticed that contemporary regulations usually do not determine themselves towards space and entities, particularly in the private law field within civil law. This article does not deal with reasons for such an approach, but they can probably be sought and found in the universality of civil law, particularly its private law part, for which it more likely stands that the legislator derives its competences from the rights of subjects than that the subjects derive their competences from the norms created by legislator. The second part, which seems to be significant for identification of legal gaps relates to rights, obligations and responsibility and is called basic legal structure. It leans on facts, events, but it legally qualifies them by envisaging rights, obligations and responsibility. Each of the elements can be decomposed from the perspective of its origin, content and resolution. That brings us to the fact (event) to be recognized and linked to the legal effect of the norm, depending on the field of law at issue. This article was not able even to attempt further developing these elements according to legal fields due to the supposed volume of such a task, as well as to cutting into specific fields, which demands their better understanding. The third part observes the abstract structure independent of facts. It also relates to right, obligation and responsibility, but irrespective of the object or subject of their application. For that reason this structure is abstract. It is shown that such structures can be mutually combined, i.e. that they are by their nature strictly differentiated. Mathematical models are suitable for their combination and one of the possible ones is presented in the article. Finally, there is a fourth section, which is logical by nature and relates to rules of logic, but only to ones possibly significant for legal gaps. Logical rules suitable to these purposes have been selected and they demonstrate that if a legal gap does not exist from the perspective of previous rules, it can appear due to logical errors. All listed elements and procedures should serve as a model - a scheme which can be also envisaged as a pattern to 'cover' the solutions being examined and which will show if legal gaps exist or not. The suggested system is not simple, because it cannot be such. It really is not suitable for simple procedures, but the law that is the subject of examination is neither simple nor suitable for such methods. Law is a multidimensional system and demands complex methods of examination, checks and creation. Conversely, it can be said that omission to apply a complex system of examination and reliance only in ones own knowledge of a certain legal field, without a necessary assisting tool - methods and schemes designed for this purpose, is sure to leave many legal gaps open. This is confirmed on a daily basis by the practice of the Serbian legislator, which on average passes (at least) one regulation daily, only to soon replace it with another one, not much better than the previous. Reasons for legislative amendments, understandably, do not only relate to legal gaps, but they are one of the reasons. This article attempted to provide a small contribution to their identification.

Elementos estructurales del derecho a la verdad

Este artículo se refiere específicamente al estado actual de la discusión sobre la estructura jurídica fundamental del derecho a la verdad, sus dimensiones y su grado de juridicidad y da cuenta de los primeros resultados obtenidos sobre la evaluación de los modelos de paz adoptados en Colombia, a la luz de los estándares y ejemplos internacionales.

マンション紛争の基本的な法的構造についての素描

マンション紛争の基本的な法的構造についての素描

ABCs of ISDA agreements: advising the investor

Purpose – The purpose of this paper is to provide an introduction to benefits of using over-the-counter (OTC) derivatives when implementing an investment strategy. The paper aims to examine the basic legal structure of OTC derivative transactions and the International Swaps and Derivatives Association (ISDA) agreements used to document such transactions. The paper also aims to offer advice to institutional investors on steps they can take during the negotiation of ISDA agreements to reduce associated counterparty, termination and liquidity risk. Design/methodology/approach – The paper outlines the typical structure of OTC derivative trades; summarizes the documents used to establish a trading relationship, and outlines key considerations for institutional investors during the negotiation of ISDA agreements. Findings – An institutional investor should carefully review and negotiate ISDA documents to properly implement OTC derivative trades that conform to the investor’s overall business operations and investment strategy. Practical implications – While achieving the benefits of OTC derivative trades, an institutional investor also can negotiate agreements to reduce risks associated with these transactions. Originality/value – The paper provides practical guidance from experienced securities and derivatives lawyers.

The Legal Boundaries of Educational Governance

This chapter describes and analyzes the legal boundaries of educational governance. At bottom, these boundaries are determined by federal and state constitutional law, which in turn establish limits on federal and state authority. Described functionally and most simply, the basic legal structure of educational governance consists of two complementary rules. First, through the use of its spending powers, the federal government at the moment has almost unfettered discretion to direct the education policies of states. Second, the states, because of their constitutional status vis-a-vis political subdivisions, have even more authority over local school districts. To be sure, neither the federal government nor the states need to exercise the authority they possess nor control all facets of education. They can and have delegated or devolved authority. Nonetheless, the important point to recognize is that the legal rules that serve as the foundation for educational governance effectively allow these two levels of government to decide how much they wish to delegate and how much they wish to control. This in turn renders the legal boundaries of educational governance remarkably porous, manipulable, and unstable. Indeed, it is perhaps most helpful to recognize that there are no hard and fast legal boundaries of educational governance. That is, there are no state or federal constitutional rules that apportion clear and inviolable spheres of responsibility for education among local, state, and federal governments. Instead, the foundational legal rules render the boundaries primarily a matter of politics and policy choices. In addition to explaining how these rules operate, this chapter also considers whether they are likely to be or should be altered.

Report on the basic legal structure and current movement on port and coastal zone in Japan

Abstract Ports and harbors operating in Japan today number more than 1000. Some 25% of the total length of the national coastline is controlled by port management bodies, which are units of local governments. The initiative for port and harbor improvement is taken by these bodies. Thus, ports and harbors carry great weight in Japanese coastal issues. With regard to environmental conservation for the coastal zone, the procedure for environmental impact assessment was decided on by the cabinet in 1984, stipulating unified rules nationwide. In recent years, the scope of environmental administration has been broadened to include not only antipollution measures, but also measures to create an environment favorable to human beings. For ports and harbors, long‐term improvement policies were determined and made public by the Ministry of Transport in 1985. These policies were aimed at creating comprehensive port and harbor space that would allow living, distribution, and production to function in concert. Triggered by this, new movements have occurred over the years, including projects for creating new environments as part of port and harbor improvement. Local governments are supposed to make comprehensive plans for the coastal zone. There is a growing need for local governments to play a leading role in coastal management.

Remarks by Satya Nandan

The 1982 United Nations Convention on the Law of the Sea (the Convention) is the most successful multilateral treaty adopted by the international community since the Charter of the United Nations. Its provisions govern some seventy percent of our planet. It has established certainty in the international law of the sea in place of the chaos that preceded it. The Convention clearly sets out the basic legal structure or framework for ocean use and management within which all states must operate. In doing so it has contributed immensely to the global system of peace and security of which the Charter of the United Nations is the foundation. In reviewing the old law and revising it or, where necessary, replacing it, and by introducing new concepts and norms to meet the current needs of the international community, the Convention has revolutionized the international law of the sea. It is comprehensive, complex, and multi-faceted. Its impact has been far-reaching. It has changed the political and economic geography of the world as over the past thirty years states have adjusted to the new concepts and in particular, the new zones of jurisdictions. The broad acceptance of the Convention is in large part due to the delicate balance it has achieved between the interests of coastal states and that of the international community as a whole in the many and varied uses of the ocean space. The Convention has resolved critical legal issues, some of which had eluded agreement for centuries. The prime example of this is the breadth of the territorial sea, which has finally been settled at twelve nautical miles with a guaranteed right of passage for international navigation in those waters, together with rules to ensure free and unhampered passage of vessels and aircraft through and over vital straits used for international navigation around the world. The success of a multilateral treaty, such as this Convention, depends on two essential elements: first, the level of adherence to it by states; and second, its uniform and consistent application in state practice. In both these areas the Convention's achievement has been remarkable. There are, as of March 30, 2012, 162 parties to the Convention. This is very impressive and beyond all expectations. Those few states that have not yet become parties have certain specific problems peculiar to them. Some are unable to amend their constitutions; others are waiting for their legislature to provide the necessary consent for ratification or accession; and others have bilateral problems with their neighbors. Among these are Ecuador, Iran, Peru, Turkey, the United States, Venezuela, and a number of newly emerging states that were formerly part of the Soviet Union. In practice, however, most of these states acknowledge that the provisions of the Convention reflect the current international law of the sea. Indeed, the Convention has been recognized as the preeminent source for the international law of the sea by states, the International Court of Justice, the International Tribunal for the Law of the Sea, and other judicial and arbitral bodies dealing with marine-related issues. If one examines the practice of states, with very few exceptions, there is a remarkable level of consistency and uniformity in the interpretation and application of the provisions of the Convention. This can be seen in the establishment of the zones of jurisdiction: approximately 141 coastal states have established a territorial sea of 12 nautical miles in accordance with the Convention; similarly, 136 states have declared 200 nautical-mile exclusive economic or fisheries zones. Further evidence of the Convention's influence lies in the fact that the three institutions established by the Convention are all operational and are widely supported by states parties to the Convention. Each of these institutions is contributing to the proper and effective implementation of the Convention. The International Tribunal for the Law of the Sea is functioning effectively and has a docket of 18 cases, which shows that states have confidence in the Tribunal. …