Current Jurisdiction Research Articles

Response to Questions in the First White Paper, 'Modernizing the Communications Act'

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?"The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime would have at its core a new competition-based standard that, except in limited circumstances, would require that the FCC's regulatory activities be tied to findings of consumer harm resulting from lack of sufficient competition. The FCC's authority to adopt broad anticipatory rules on an ex ante basis would be substantially circumscribed, and the agency would be required to rely more heavily than is presently the case on ex post adjudication of individual complaints alleging specific abuses of market power and consumer harm. Some aspects of the FCC's current jurisdiction, such as privacy and data security regulation, might be transferred to the FTC in light of the FTC's institutional competence in these areas.

Local variations in reporting deaths to the coroner in England and Wales: a postcode lottery?

AimsIn England and Wales, doctors are charged with a responsibility either to report a death to the coroner or issue a medical certificate specifying cause of death. A lack of...

Competition Versus Regulation in the Post-Sunset PSTN

This paper proposes a new framework to address competition, consumer protection and public interest concerns in a “post-sunset” PSTN broadband ecosystem” (BE). In the BE, enterprises are connected horizontally and vertically. Envisioning those enterprises as points within a three-dimensional lattice, it models a way to balance promotion of competition with a range of policies of governance in the absence of competition. This is a response to the current regulators’ dilemma that companies like Google, Facebook, Amazon, Apple, Microsoft and others are now in many of the same markets as companies which were once primarily carriers such as AT&T, Verizon, Time Warner and Comcast, which are now rapidly diversifying and fleeing into an unregulated all-IP mode.The FCC’s National Broadband Plan (NBP) envisions ubiquitous broadband access in the U.S., accomplished by a transition from traditional telephone technology – analog circuits, TDM switches, related infrastructure components – to an Internet Protocol (IP)-based national broadband network. However, the NBP does not specify a specific migration path from the old network to the new one, leaving critical questions of technology, business and regulation unanswered. The FCC and the market are now in a race to see which will answer them first.This transition is being “forced” by old TDM equipment reaching end-of-life and by large numbers of customers migrating away from traditional wireline voice communications and substituting mobile, VoIP and other alternatives. As the subscriber base declines, but the cost of maintaining the old network is fixed (or increasing), the cost per customer rises and profitability decreases, creating a voice “death spiral”. The major telecommunications carriers are already rapidly distancing themselves from the “old” telecommunications service and moving to diversified IP-based services.In the technical area there are transition questions about numbering, interconnection and interoperability, quality of service, and spectrum among others. From the business perspective, traditional carriers are faced with finding new business models to function in what can be described as a three-dimensional lattice that comprises the metastructure of the BE. From a regulatory perspective, there is a fundamental challenge as to whether the FCC has any jurisdiction over IP-based services at all under current rules. A long-term solution to these problems requires a new way of thinking about the structure of the market as implemented consistent with the NBP.The FCC has initiated a process to consider this, within the presumed scope of its current jurisdiction, although it may ultimately require Congress or the courts to define that scope. At the same time, the major carriers such as AT&T, Verizon, Time Warner and Comcast have initiated an aggressive campaign to have all IP-based services deregulated as “information services”. Arrayed against this are civil society/public interest organizations devoted to sustaining the traditional “social contract” with respect to communications in the public interest.The ultimate outcome is uncertain, but it appears neither side has the political influence to win a total victory. Given that, some policy experts are proposing a “middle way” in which the broadband network evolves against a set of general principles to assure competition and protect the public interest. This could involve an ex ante anti-trust/consumer protection approach, or a light-touch version of traditional regulation. However, there is as yet no coherent theoretical framework within which to decide what action (or forbearance) is appropriate under what conditions. This paper’s three-dimensional lattice model is a step in that direction.

Stuck in the Terminal with the Gates Firmly Shut

The foreshadowed lockout by Qantas on Saturday, 29 October 2011 of approximately 3000 employees affecting potentially hundreds of thousands of passengers globally, with no warning to the public, sharply focused the public mind on the powers of Australia’s industrial tribunal, Fair Work Australia (‘FWA’), to intervene in industrial disputes. Scenes of stranded passengers, late night FWA hearings and the interventions by Federal and state governments captured the public’s attention in ways reminiscent of some of the nation-stopping oil industry disputes of the 1970s and 1980s. The purpose of this article is to provide an analysis of the powers of FWA to deal with protracted disputes and the legislative policy drivers at work. It does so by first providing the context and history of how such disputes were settled by predecessor industrial tribunals. The authors then summarise FWA’s current jurisdiction and give a précis of relevant decisions that have been handed down since the passage of the Fair Work Act 2009 (Cth) (‘FW Act’). That analysis colours the subsequent discussion of the Qantas dispute. In concluding, the authors join the chorus and offer their thoughts on policy and possible changes to the FW Act.

HNO-ärztliche Begutachtung für private Unfallversicherungen

The provisions and the aims of private accident insurance are not comparable to those of the statutory accident insurance. The ear nose throat- (ENT-)specialist is often consulted on the question of a possible causality between an accident and sequelae. Loss of smell, taste disorder and loss of hearing are specified in a table with a fixed percentage for compensation. The individual invalidity for ear ringing, vertigo and other disorders have to be determined separately from this table. In private accident insurance a probability bordering on absolute certainty must be given when establishing a possible causal connection whereby mental reactions are excluded from compensation and all sequelae have to have continued for at least 3 years. The occupation or specific skills of the injured person are not essential for the judgement. The current jurisdiction and conditions of private accident insurance for tinnitus and vertigo have to be taken into consideration.

Current problems of hospital health including the AIDS problem. "Protection of patients and staff--legal status"

The prevention of HIV infection in hospital, if at all possible, is a general legal obligation. For that reason, special preventive measures against infection are required for blood transfusions, transplantations or semen donations. On the other hand, comprehensive information on the risks of infection and the permanent reminder of hygienic directions are considered to be sufficient for the protection of physicians and nursing staffs. However, the arguments for such a careless handling are not convincing. HIV testing of patients for the protection of the medical staff must not be relinquished. However, the current jurisdiction does not permit to carry out HIV tests without the patients' consent following comprehensive information; furthermore, the consequences resulting from a positive as well as a negative test have to be explained to the patients. In case of established infection further transmission must be prevented by all means.

Jurisdiction in B2C E-Commerce Redress in the European Community

E-commerce jurisdiction always has been an issue, because e-commerce exists in a borderless environment, and this e-environment diminishes the importance of physical location and locality. This imposes a great concern over which country’s jurisdiction to engage when disputes occur between business and consumer in the e-environment. This is crucial when the consumer is seeking redress, as there is always the question where a court action should be brought. The current jurisdictions by the European Commission (EC) within the European Union (EU), the E-Commerce Directive — Country of Origin and Rome II — are still in the drafting process. These legislations are not the total solution. This paper is a review of the issue of current jurisdiction, whether there is a need to call for a single jurisdiction, and what complications arise when seeking redress in this borderless e-environment. This paper also raises important issues that relate to the gaps and loopholes that exist in Country of Origin and Rome II.

The Significance of the declaration of assent

The Bishop of Chester chaired the working party which produced the report Clergy Discipline (Doctrine). The report's recommendation that a draft Measure be introduced into General Synod, based upon the working party's proposals, was narrowly defeated in the House of Clergy in the General Synod in July 2004. The House of Bishops has subsequently resolved to return in due course to the matter, with a view to introducing revised proposals. At the heart of any process will be the interpretation of the current Declaration of Assent. The Bishop's address on this subject delivered at the 2004 Ecclesiastical Law Society Day Conference (before the Synod's rejection of the immediate proposals) is here reproduced, with minor modifications. The paper explores the primacy of Holy Scripture in the determination of the doctrine of the Church, as expressed in the Declaration of Assent and the Church of England (Worship and Doctrine) Measure 1974. Possible recourse to formal doctrinal discipline is considered in this context, in relation both to the current Ecclesiastical Jurisdiction Measure 1963 and any proposed revision. The nature of the judgment which a court or tribunal would need to make in relation to an issue of doctrine is then assessed. This leads to the conclusion that while an up-to-date procedure for such cases is required, they are likely to continue to be at least infrequent, and quite possibly, as in the twentieth century, non-existent.

Rechtliche Besonderheiten bei der Behandlung minderj�hriger Patienten

According to current jurisdiction any intervention of the physical integrity of the body, even medical treatment and the administration of medication, constitutes a physical injury. The legal authority for this primarily comes from the consent of the patient. The problem for the medical doctor is whose consent is necessary when a patient is a minor. According to the jurisdiction and the literature, the consent of a minor to medical treatment is a legally binding decision not dependent on reaching the age of majority. Nevertheless, according to the overwhelming opinion it can be assumed that minors under the age of 14 years old are not yet capable of consent. The authority for consent lies with the parents or guardians. Because children are normally only accompanied by one of the parents when visiting a doctor, in routine practice the 3-stage theory developed by the Federal High Court pays a deciding role. According to this theory, for routine cases the doctor can assume that one of the parents is basically a representative of the other; for more complicated or severe cases the doctor must satisfy himself that this is true. For patients over 14 years old, the doctor must ascertain whether the patient is capable of consent. Even though a 15-year-old patient for example, can possess the necessary power of judgement and therefore be considered capable of consenting to routine measures or simple interventions, such as taking a blood sample, the yardstick for higher-risk operations, even routine ones is much higher.

Judging Democracy: the Devolutionary Settlement and the Scottish Constitution

177 This article considers three distinct but inter-related issues concerning human rights and the Scottish constitution. First of all, it discusses the alleged antidemocratic nature of human rights which, of course, depends on what is meant by “democracy”. The paper suggests that “democracy” after the Human Rights Act 1998 has to be given a substantive “value-rich” meaning founded on the principle of respect for the individual, rather than simply a claim that the majority is always right. Second, it looks at the fact that Scotland’s new constitution under the Scotland Act 1998 mandates a new form of “democratic constitution”, one in which the judges are supreme in the sense that they have the power to strike down as invalid – because Convention-incompatible – both legislation which has been duly passed by the Scottish Parliament and acts of the Scottish Ministers which would otherwise be warranted under primary Westminster legislation. It is suggested that the reasons why this constitutional revolution has not yet made the impact that might have been expected relate to the institutional conservatism inherent in the current Scottish legal culture. Third, it examines the issue of the role and structure of the Judicial Committee of the Privy Council in the devolutionary settlement. It is submitted that the case-law to date shows certain tensions in the way that the current arrangements are working in the United Kingdom as a whole, and a unitary state with two Supreme Courts deciding on Convention rights is inherently unstable. For the sake of constitutional and democratic stability in the post-devolution UK, we need one Supreme Court – at the very least one which combines the current jurisdiction of the House of Lords with the devolution jurisdiction of the Privy Council.

Prevention of thrombosis in trauma surgery--current legal aspects

To date, current jurisdiction has not permitted an answer to the a question as to how long thromboembolism prevention therapy is to be carried out after trauma surgery. However, the Bundesgerichtshof (BGH) reached a decision in 1995 on this matter. Accordingly, patients have to be informed about possible alternative treatment as well as the applicable form of thromboembolism prevention therapy in each specific case. In combination with the fact that the Deutsche Gesellschaft für Phlebologie (DGP, German society for phlebology) has published guidelines on thromboembolism prevention therapy via the internet, this may have considerable impact on the outcome of civil litigation, with consequences for financial compensation. Since civil action requires the medical doctor to prove that he has provided an adequate and acceptable basis for informed consent in patients, in concurrence with the above-mentioned DGP guidelines being potentially misunderstood as representing state-of-the-art treatment, it is deemed necessary to present a list of points that must be brought to the patient's attention when requesting informed consent and, furthermore, the manner in which the guidelines of the medical specialist societies may bring about problems must be pointed out. In the specific context of the German judicial system, criminal law will virtually never lead to a conviction in a case of fatal pulmonary embolism following neglect of or insufficient thromboembolism prevention therapy.

Fatal occupational injuries in a southern state.

Fatal occupational injuries were studied using data from medical examiners' reports in North Carolina for the years 1977-1991. Cases were defined as deaths due to accidents or homicide at the workplace, and populations at risk were estimated from the 1980 and 1990 US Censuses. Mortality rate ratios and proportionate mortality ratios were used as measures of association, and the population attributable risk percentage was used as an indicator of the burden of injury. Standard weights for direct age-adjustment of rates were obtained from the total state workforce. There were 2,524 eligible deaths-83 percent from unintentional traumatic injuries, 14 percent from homicide, and the remainder from other causes. This report focuses on unintentional trauma deaths, which were strongly associated with the wood production, fishing, and transportation industries. Elderly, African-American, and self-employed workers had higher fatality rates than members of other groups. Among male workers, motor vehicle crashes were the principal cause of death on the job, followed by falling objects, machinery, and falls. The industries contributing the largest proportions of these deaths were construction, trucking, agriculture, and logging (population attributable risk percentages were 16.8%, 8.8%, 7.9%, and 6.9%, respectively). The fatality patterns of female workers were different: Numbers of deaths from homicide and unintentional trauma were equal, and 27% of the latter deaths occurred in one catastrophic fire. Decentralized and rural industries were the most hazardous, but many deaths were outside the current jurisdiction of occupational safety and health agencies. These patterns suggest that greater scrutiny of such industries, through both research and intervention, is warranted.

Supplemental report on nurse-midwifery legislation

In March/April 1984, the Journal of Nurse-Midwifery published a Special Legislative Issue in cooperation with the Political and Economic Affairs Committee of the ACNM. This current issue of JNM and the following issue will contain updates on the ten summary tables and revised summaries for 27 jurisdictions that have had major legislative or regulatory changes in the intervening years. The following index will help to locate where the most current jurisdiction report can be found.

Gatt regulation of countertrade: Issues and prospects

In light of persistent hard currency shortages, an increasing number of countries and firms resort to countertrade. Although this practice has the potential to become a major threat to the world trade framework, it is currently not specifically addressed by the General Agreement on Tariffs and Trade (GATT). From the context of the upcoming international trade negotiations, this article explores the extent to which countertrade practices are, and should be, incorporated into the GATT framework. It analyzes current GATT jurisdiction, presents policy considerations in favor of and against the inclusion of countertrade into the GATT, and addresses practical considerations to be kept in mind during negotiations on this issue.

Supplemental report on nurse-midwifery legislation

In March/April 1984, the Journal of Nurse-Midwifery published a Special Legislative Issue in cooperation with the Political and Economic Affairs Committee of the ACNM. This current issue of JNM and the following issue will contain updates on the ten summary tables and revised summaries for 27 jurisdictions that have had major legislative or regulatory changes in the intervening years. The following index will help to locate where the most current jurisdiction report can be found.

Anti-Colonialism and Class Formation: The Eastern Horn of Africa before 1950

Nowhere has African adjustment to the postcolonial period entailed more destructive consequences than in the Horn. The conflict over Ethiopian claims to the Somali-inhabited Ogaden, an extensive inland area between the Ethiopian mountains and the Somali rangelands, is rooted in the specific conditions of a region where an African empire and an African nation pursue irreconcilable objectives. Ethiopian rulers vow to maintain the territorial integrity of their empire-state and repudiate the notion that Somali-speaking people, regardless of their current jurisdiction, should be allowed the right of self-determination. Somalis insist that empirical criteria, not the juridical ones preferred by Ethiopia, objectively establish the socio-economic and cultural orientation of the Ogaden Somalis that forms the basis for their nationalist identification

Zur ärztlichen Aufklärungspflicht - juristische Aspekte - Erwartungen der Patienten*

There is some uncertainty among doctors and lawyers about the form and content of presurgical medical enlightenment of the patient. Presurgical enlightenment is of increasing significance with respect to malpractice suits. Current jurisdiction has developed principles of enlightenment that are often difficult for the doctor to handle. For routine procedures in major hospitals a standardized, pragmatically designed consent form is therefore necessary. At Würzburg University Eye Hospital the results of glaucoma and cataract surgery have been documented for years by using computer-readable forms. On the basis of these large-scale results from many thousands of procedures a written consent form was developed and tested for its suitability. Two hundred and twenty-two patients were questioned on their expectations as to proper enlightenment. The results of these broadly scattered interviews are summed up and presented. Especially with glaucoma patients, the best method of enlightenment, satisfying both medical and legal requirements, is an information booklet designed for lay people together with verbal information furnished by the doctor. Nearly all of the patients interviewed found the preoperative enlightenment complete and sufficiently clear. The majority ot them could repeat the contents of the enlightenment form four to six days after the operation. This speaks well for the adequacy of the enlightenment. As a rule, the written consent form was supplemented by verbal enlightenment from the operating physician immediately before hospitalization of the patient. A psychological investigation of preoperative anxiety with enlightened and non-enlightened patients revealed that the enlightenment form did not increase preoperative anxiety. Surgical ophthalmology lends itself to a written consent form more readily then other surgical disciplines, because diseases with poor prognoses for life are fortunately rare.

Colonial and Federal Admiralty Jurisdiction

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts. A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.