Failure Of Legislation Research Articles

Family lawyers on cohabitation and judge-made law

This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the courtroom. Interviews with family lawyers in Quebec show that bringing claims under the adapted doctrine is complex and costly. Variable and unpredictable outcomes impede fair and efficient private ordering. Cohabitation agreements do not seem a satisfactory solution. The study highlights shortcomings in the leading Canadian judgment, which recognizes some cohabiting couples as partnerships but stops short of presuming an equal sharing of gains during the union. But, since the participating lawyers pointed to factors that would reduce the efficacy of reform by judges or by legislatures, the study does not yield a broad preference for legislative reform over judicial reform.

Opening a Virtual Space before the Door of the Law: The Transnational Togani Effect from Silenced to Angels Wear White

Through an examination of what the author calls the transnational Togani effect, which challenges legislative failures across both screens and borders, the author hopes to show how social justice films are deployed as a mode of critique that directly impacts the criminal justice system. The author's analysis of the transnational Togani effect therefore encompasses and connects the dimensions of virtuality and actuality in their interactive relation in the contemporary media environment. The author situates this interactive relationship between the virtual and the actual within a transnational framework because awareness of sexual assault is raised in cross-border contexts that are intertextual and interconnected. Drawing on the Deleuzian notion of the virtual and the actual and Giorgio Agamben's concept of inclusive exclusion, the author suggests that screen intervention is a virtual layer added to heterotopic space that serves as a possible resistance against the entrapment of human subjects by neoliberal governance, in which the law is “in force without significance.” As Deleuze shows, the virtual and the actual are fully real, and the relationship between them takes the form of a circuit. By exploring how the interlocking of virtuality and actuality comes to bear on the legal sphere, this article poses fundamental questions for cinema, or for audiovisual media in general, such as to what extent cinematic critique is capable of opening an alternative space for social justice.

Controlling Australian Immigration: Holocaust Survivors in the Post‐War Years

Recent studies of immigration have questioned assumptions about the effectiveness of government controls. In her work on illegal Jewish immigration to the United States, Libby Garland argues that official immigration quotas may not reflect actual numbers of immigrants and critiques historians for being too ready to take immigration laws at face value. Mae Ngai's work on the racialisation of “illegal aliens” in the United States also documents the failure of legislation to curb illegal immigration. Situating her study within this historiography, Sheila Fitzpatrick has re‐examined Australian measures that aimed to limit the entry of Holocaust survivors and concluded that the number of arrivals was substantially higher than previously recognised, in part because migrants and their sponsors found ways around restrictions. In substantiation, Fitzpatrick drew on the archives of the International Refugee Organization and the Australian Government, and the papers of the country's first Minister for Immigration, Arthur Calwell. This article revisits Fitzpatrick's sources, as well as the records of Jewish organisations she did not consult. It establishes that the Australian government effectively limited Jewish immigration and the estimates of earlier scholars were substantially correct.

Should the artist’s resale right be introduced in China?

The artist’s resale right has been recognized by countries around the world in an effort to protect artists. However, despite having one of the largest art markets in the world, China has not yet established the resale right. During the last revision of the Copyright Law, although the resale right was introduced in a draft amendment, this legislative attempt ultimately failed. Considering China’s important position in the world art market, there is still controversy surrounding the question of whether China needs to introduce this right. Tracing back the causes for China’s legislative failure, it can be seen that the main reason is that China misunderstood the rationale for the legitimacy of the resale right. According to the ‘balance among authors’ theory and considering the need to protect the interests of artists, China should introduce this right. Moreover, since China already has a strict regulatory mechanism for the art market, the country meets the conditions for the successful implementation of the resale right, which means that it can be introduced relatively easily in China.

중대재해처벌법위반죄의 구성요건체계에 관한 고찰

Severe Accident Punishment Act(SAPA), which was enacted after much controversy, has been in effect for a year, but there are still questions about its systematic consistency and effectiveness. SAPA was not sufficiently researched and reviewed during the legislative process. Therefore, it is inevitable that it will continue to be a problem in the future. Theories of criminal law such as responsibility principle, systematic status, and balance of crime and punishment have not been sufficiently reviewed. Its place was replaced by the force of punishment and harsh punishment. In legislative process, only one purpose was fulfilled faithfully. It means that the subject of criminal responsibility is extended to responsible managing officer, and the punishment is high. And as a result, despite the fact that serious industrial accident involuntary manslaughter have the nature of criminal negligence, the sentencing structure of consequentially aggravated crime was adopted. The ultimate purpose of punishment for those involved in safety accidents should be to promote the safety of people's lives and bodies through accident prevention. However, it seems skeptical whether SAPA meets this goal. In conclusion, this act requires comprehensive revision that considers the systematic consistency of punishment and its relationship with the Occupational Safety and Health Act in a balanced manner. In addition, there is a need to acknowledge the legislative failure before more cases of application are accumulated and to consider reform it from the beginning after abolishing it.

Strafbarkeit des Sexkaufs nach § 232a Abs. 6 StGB – ein gesetzgeberischer Fehlschlag?

Strafbarkeit des Sexkaufs nach § 232a Abs. 6 StGB – ein gesetzgeberischer Fehlschlag?

Climate Still Changes Everything

When the Inflation Reduction Act was signed into law last August, it was celebrated as the biggest piece of federal climate legislation ever passed in the United States. This was an astonishingly low bar to clear: the IRA is also the country’s only real climate legislation. If its passage was a dubious landmark, it also stood at the end of an era for a U.S. climate movement galvanized nearly fifteen years earlier by the near-collapse of the UN climate conference in 2009 and the failure of previous federal legislation in 2010. Over the intervening years, the climate movement tacked sharply to the left as it grew more radical in its tactics and more visionary in its demands. The movement has undoubtedly changed the tenor of U.S. politics. But it has also run up against the limits of its power. What comes next?

Another “education by stone”: An archaeological case study in Brazil's environmental law

AbstractBrazilian law protects environments understood to be the remnants of historical ecologies. This article uses oral histories, silicate plant fossils, and stable isotopes to excavate one such protected fragment of Brazil's Atlantic Forest. Located on a former plantation in the Paraíba Valley of Rio de Janeiro, a region central to state and market formation, and to Atlantic slavery in the nineteenth century, this “forest” contains ecological histories different from those encoded in environmental law. Rather than a legislative failure, this incongruence constitutes an important structural feature of the juridical authority that marginalizes embodied ways of learning about the environment. This fundamental tension, related to who can know this place and by what means, has important implications for understanding the social meanings of environmental politics in the Atlantic world, which emerged in the context of the abolition of slavery. Environmental laws provided means of claiming knowledge and control over spaces of social reproduction created by freedpersons post abolition, underwriting enduring forms of land and labor management. [environmental legislation, land conflict, plantations, race, Brazil]

Sex work and the city: Liminal lives in Chika Unigwe’s On Black Sisters’ Street

Chika Unigwe’s 2007 novel On Black Sisters’ Street centres on the lives of four women illegally trafficked from Nigeria to the sex district of Antwerp. Documenting how these characters negotiate the dark spaces of the city, Unigwe highlights the structural inequalities and legislative failures that keep these women in a state of exception. The novel offers a portrait of the contemporary city and the precarious position of those locked out of legal protection of the state. This article focuses on the urban spaces of Sisi, Efe, Joyce and Ama, and how they become commodities of underground migration system. Visible in the windows of the red-light district each night, they are considered persona non-grata by the legal infrastructure that fails to protect them.

Fullerowski paradygmat (nie)dobrego prawa i jego aktualność „hic et nunc”

The subject of the article is Fuller’s concept of the (not) good law paradigm defined by three notions: “internal morality of law,” “natural law of a formal nature,” and “formal rule of law” — in the perspective of its application in the current legal order of the Republic of Poland. The discourse was conducted in two stages: on a general, theoretical, and axiological levels as well as on a detailed, practical, and praxeological ones.
 The epistemological level with its retrospective view bears resemblance of two models: bad law and good law. The first, encapsulated in literary legal fiction, describes eight cases (anti-values) of King Rex’s legislative failures. King Rex is monarch with authoritarian and conservative traits who excludes the system of government based on the proportional cohabitation of three powers — legislative, executive, and judicative — in favour of anocracy, which is a hybrid regime “suspended” between democracy and authoritarianism. The second is a remedy in the form of axiological contours, postulates (values) of good law: generality, promulgation, prospectivity, clarity, non-contradiction, reality, stability, and compliance. These principles of the formal rule of law, contained in the concept of “soft” jusnaturalism, are a specific professional and ethical code for the public authority which constitutes, executes, and applies the law.
 The practical-cognitive level refers to subjectively selected examples of abusing the good lawstandard in the Polish legal and administrative order. It shows the omnipotent and simultaneously dysfunctional executive power in the area of governance and administration, aimed at a radical reconstruction of the social and legal system.

Mechanisms for resolving international contracts for building and construction disputes: آليات حسم منازعات العقود الدولية للبناء والتشييد

Consider of resolving international contracts for building and construction is extremely important for architects and building construction implementers, as international building and construction contracts are complex contracts and countless international parties participate in their implementation. The aim of this research is to show the legal implications of implementing dispute resolution mechanisms, international contracts in construction and construction. The International Building and Construction Contract does not deviate from being a complex, international commercial contract, from private law contracts, even with the presence of the state or a legal person as a party to the contracts, this does not change their legal nature as contracts of law. The private where the results of the following research study showed: 1- The failure of national legislation to address many of the problems arising from international contracts for building and construction, which are of a technical nature due to their rapid development that are unable to keep pace with those national legislations, thus enhancing the role of rapidly developing and modifying model contracts to ensure simulation of the practical reality of these new technical problems and to provide the best means. To solve it, we extracted from the research the following results. 2- Model contracts are not considered contracts in the strict legal sense as they do not include consent between two parties, but rather they are a pre- prepared contract formulation in printed form, so that it is ready for use by the parties to the contract, and it is not evidence except for the persons who agreed to the agreement to refer to it where the search was used The inductive approach to measuring and understanding its archeology, as it relied on reviewing previous literature and studies in explaining the legal implications, and the research recommendations came as follows: 1- Attaching special importance to drafting international contracts for building and construction, and entrusting this task to a team of legal, technical and economic experts who have the scientific and practical qualities that qualify them to do this task in the best way, so that the parties to these contracts can avoid or at least reduce the disputes arising from these contracts. 2- Preparation and drafting of a unified Arab contract as a model for concluding international contracts for building and construction, which is evident in the customs and habits of this industry derived from our contemporary reality and in line with the legal concepts prevailing in our Arab countries, so that they act as the actual guarantee on which every contractor from our Arab society depends.

Legal Aspects of Sharing Economy: The Case of Games’ Platforms

Purpose: This article aims to show whether there are other mechanisms for dealing with customer complaints than those proposed by the platforms. Who is responsible for the content on the platforms? The aim of this article is to show that there are no rules other than private international law that allow customers to enforce their rights. Design/Methodology/Approach: The authors use a literature review methodology consisting of a bibliographic analysis and an analysis of legal acts. The scientific argument concerns the study of the legal regulations' weaknesses based on a case study in the form of cases negotiated in international fora. The main objective of this research method was to identify the circumstances of legislative failure. Findings: These regulatory findings could pave the way for emerging research on the role of digitalization for sharing practices. Practical implications: The practical implications of this article are enormous. First, it should be noted that law has not always kept pace with economical solutions, and in this case, there is no opportunity for clear legal rules that allow customers to safely conduct transactions outside of the self-regulation of these online platforms. Originality/Value: There has not yet been an examination of the law in practice - i.e., a discussion of regulatory options for international digital platforms.

Reimagining Section 94.1: The Offshore Investment Fund Property Rule

In this article, the author contemplates how section 94.1 of the Income Tax Act (Canada), the offshore investment fund property (OIFP) rule, might be reimagined considering its inefficacy in the face of unique non-resident investment funds. By tracing the anti-avoidance origins of the rule, the author shows that the source of this inadequacy is an expectation overload rather than legislative failure. While the OIFP rule was introduced as a stop-gap designed only to tackle a certain kind of basic intermediation strategy, it is now tasked with the much grander objective of creating a level playing field with respect to the tax treatment of domestic and offshore investment funds. The author shows how this mismatch of aspiration and reality has created the opportunity for savvy investors to manipulate the "motive" test within the rule, and avoid its application, simply by proving themselves to have a sufficiently credible and pervasive alternative reason for investing in an offshore fund (for example, the unique expertise of its manager). The author postulates that this flaw is likely to become more frequently tested as funds specializing in novel asset classes (such as cryptocurrency funds) proliferate and grow. The article closes with the proposition that if the test at the centre of the rule is recast as a purely objective analysis, and certain other changes are made, section 94.1 can be transformed to apply a transaction-cost model that will deter undesirable intermediation attempts and ensure that Canada's revenue authorities get a cut of any profits from superreturn investment opportunities. The author draws on key elements of the ultimately abandoned foreign investment entity rules and certain anti-avoidance provisions from elsewhere in the Act to provide a conceptual foundation for the proposed amendments. He also seeks to demonstrate how revising the OIFP rule in this way will achieve a greater degree of capital export neutrality—a policy thread that runs through the Canadian approach to international taxation—by creating a more (though not wholly) level tax playing field, but without the crippling administrative burden and incomplete tax coverage that may accompany a more capital export neutrality-driven approach.

Lessons from the Pandemic: Congress Must Act to Mandate Digital Accessibility for the Disabled Community

The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact a new title to the ADA which clearly mandates the removal of barriers to website accessibility, while taking into account the impact on businesses and other entities that may be subject to accessibility requirements.

行政立法에 대한 民主的 統制 - 특히 의회입법의 실패와 소위 “시행령 정치”의 문제를 중심으로 -

지난 20대 국회에서는 여야의 극한 대립으로 의회입법이 제대로 이루어지지 않았고, 법률로 규율해야 할 사항을 시행령의 개정을 통해 이루어졌다. 이를 소위 “시행령 정치”라고도 부른다. 이러한 현상은 시행령에 국한되지 아니하고, 시행규칙이나 행정규칙(훈령·고시 등)의 방식에 의해서도 이루어지고 있다. 의회입법의 실패로 인한 행정입법의 남용 현상은 법치국가적 관점에서 큰 우려를 낳고 있으며, 이에 대해 민주적 통제를 강화할 수 있는 방안을 모색할 필요가 있다. 현행법상 위법한 법률하위규범에 대한 사법적 통제는 불완전하며, 이러한 문제를 해결하기 위해서는 주위적 규범통제제도가 적극적으로 도입되어야 한다. 또한 “명령국가(命令國家)로의 도피” 현상이 발생하지 않기 위해서는 민주적 정당성을 확보하고 절차적 통제를 강화하여야 한다. 위법한 행정입법에 대한 국회의 동의절차가 도입되어야 한다. 행정입법절차에 있어서 관련된 자료나 정보를 투명하게 공개하고, 공중의 참여와 의견제출 등을 충분히 보장하여야 한다. 현대사회의 불확실성과 리스크의 증가로 인해 국회와 집행권의 협력적 법제정은 매우 절실하다. 2019년은 시대를 앞서간 난세(亂世)의 모범적 헌법의 하나이었던 바이마르헌법이 100주년을 맞이하는 해이었다. 바이마르공화국 말기에 수권법(授權法)에 의해 집행권의 법제정 남용이 초래되고, 이로 인해 파국으로 이른 역사적 교훈을 되새길 필요가 있다.

Data Breaches and Potemkin Privacy: How FTC Regulation Can Restore Authority and Agency to Online Users and Destroy the Data Oligarchy

Data Breaches and Potemkin Privacy: How FTC Regulation Can Restore Authority and Agency to Online Users and Destroy the Data Oligarchy

‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body

Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.

How to Regulate Blockchain's Real-Life Applications: Lessons from the California Blockchain Working Group

How should legislators write a law regulating a brand-new technology, one that they may not yet fully understand? With the advent of blockchain and other advanced computational technologies, this generation of legislators faces more complex questions than their predecessors. Drawing on the author’s experience as a member of California’s Blockchain Working Group, this article offers guidance to lawmakers, lawyers, and industry leaders seeking to draft effective laws regulating applications of this new technology. The article focuses on regulation of financial assets created by or facilitated by blockchains, including cryptocurrencies and other types of digital assets. Part II explains why blockchain and crypto-related laws are necessary, but are also more difficult to draft and pass than laws regulating less technical industries. Part III recommends five factors state and federal legislators should consider as they embark on drafting or amending blockchain-related laws, including policy decisions, ethical considerations, transparency, inter-jurisdictional competition, and uniformity. Part IV considers whether these factors exist in current legislative efforts by evaluating the existing federal statutory and regulatory structure. This section uses the Cryptocurrency Act of 2020, a federal bill proposed in early 2020, as a case study in legislative failure. Part V turns the lens to state legislative efforts, analyzing methods used by three states who were among the first to regulate blockchain technology in the United States: California (the “tortoise” approach), Wyoming (the “hare” approach), and New York (the “boomerang”) approach. The result is a novel article that will do two things for its readers: (1) encourage them to be informed participants in conversations relating to federal and state regulation of blockchain applications, and (2) offer a snapshot of these regulatory processes early in the development of blockchain technology, which will prove to be useful in coming years. Blockchain technology will continue developing quickly, regardless of how governments frame regulation. Everyone—including industry players, members of the public, and governments themselves—will gain if lawmakers can strike the right balance between innovation and public protection.

Feasibility and Legal Requirements for CSR

Governments are the entities to form laws and regulations. CSR can be the vehicle is to implement these values in corporations. Thus CSR is very much enveloped with the functions in a legal framework. Laws are usually and sensibly long in the drafting. They typically have a long “shelf-life”, regardless of the rapidly changing circumstances that they are designed to address. This may lead them to be blunt instruments some times. They are clearly the best means of establishing coherent, enforce able “ground rules” on which to build civil society. Laws however need to be supplemented by a range of other measures that allow effective responses to specific conditions and changing circumstances in a timely manner. Organizations need to be committed for the welfare of the larger society. They must have right conduct for fulfilling expectations and moral obligations at the level of society. Effective competition, regulation, and standards are vital for improving CSR in producing social welfare. Understanding legal concepts rules and process are essential to the business and CSR. This helps ensure that products, operations and services comply with all applicable laws and regulations. Business firms should move toward a spirit of trust at all times especially in matters that are integral to the existence of the firm such as data privacy. Governments should take the initiative in bringing together all segments in society to create awareness and discuss CSR. Simultaneous competition reform and regulation need to go with improvements in the efficiency of the legal system. The importance of the efficiency of the legal protection depends on the trade-offs related to the delegating part of authority to specific regulatory agencies and relying on a laissez-faire approach backed by the general court system. Law enforcement must be credible for the CSR environment. But one cannot be sure about reliability of the enforcement of Law by the state’s legal institutions. Law per se cannot have any significant impact, without the appropriate political structure and allocation of judicial authority. Further one can always find some loopholes in avoiding law and hence it is never a foolproof system. Self-regulation is seen as an alternative to provide some of the basic civil, social and political rights afforded their citizens. This is mainly due to the real or perceived failure of legislation, regulation and its implementation to control the adverse activities of the corporation on people and the environment. Self-regulations focus primarily on codes of conduct, as central tool by corporations and government. Some question the notion that codes are optional, particularly for internationalized corporations when by definition they are voluntary. Normally codes of conduct will be part of the organization’s culture and the decisions made by senior management will reflect this. These codes or formal rules are complementary. It can increase the effectiveness of informal constraints. The government enforces the law by power. On the contrary, social norms stem from culture, custom and religion. Government may be able to emphasize certain mainstream values in society and educate people. But they cannot enforce those values through power. Organizations need not only to develop, communicate, and publish these codes but also has to review them regularly, and punish rule breakers. Codes of ethics need to be valued by all organizational members, their content needs to be regularly reviewed, and rule breakers need to be punished. The varied regulatory environments add a whole new level of complexity to corporate regulation due to globalization and the internationalization. CSR by definition has a voluntary nature and hence there is a continuous debate on whether CSR should be voluntary or regulatory. All the stakeholders have to play their roles effectively, if we want to change the system. Among them of course, Governments have a major role to play in this regard. We can see that CSR is broadly about fairness and decency. But understanding and interpreting of fairness and decency differs often radically from person to person and from country to country. Therefore there is a need to develop some broad consensus globally upon which governments, workers and employers can operate. ILO may be the right body to develop such an International Consensus. It is equally important to have in place checks and balances that reward the good and punish the bad performers.

الحماية القانونية للمشردين دراسة تطبيقية في محافظة ديالى

Homelessness is one of the phenomena that has spread widely in many societies recently. Despite the progress of societies at various levels, it remains widespread. This phenomenon is universal from which all Western and developing societies suffer but with different ratios, conditions and legal treatments followed in each country and society. This study aims to diagnose this phenomenon as one of the negative social phenomena in the societies by explaining its concept and showing the categories that fall within its description. In this study, the researcher assumes that there are many homeless cases in the country, neglect cases of official and informal institutions, absence of laws that regulate family and community life, and absence of legal and practical treatments to deal with this phenomenon. It is found that there are various effects of homelessness that differ in accordance with their causes whether legal, social, family, environmental, demographic or educational. The study proved the lack of adequate legal protection at the local level in Iraqi society that take on the responsibility of developing serious and effective treatments for this phenomenon as compared to the treatments taken at the international level. The study ends to record the most important results reached at, which proved the existence of a clear legislative failure by the Iraqi legislator in addressing such a phenomenon, and the available treatments are for specific age groups. The position of the law towards homeless persons whose age is over eighteen has not been stated. The study points to the inability of the current institutions to fulfill their primary role for which they were established. This lead to widespread this phenomenon and to easily attract many of these groups to wrong behaviors and to recruit them to destroy society instead of working to contain them, treat them, and reintegrating them into the society as good individuals. Throughout the results of the study, the researcher reached to a set of recommendations to treat this phenomenon including the need to spread social awareness and defining the danger of this phenomenon, reducing and scaling it, developing urgent legislative treatments that go in line with the magnitude of the effects of this phenomenon, and impose deterrent penalties on the exploiters of these groups, with emphasis on activating the basic role of the existing institutions. It also recommends to develop a strategic plan to establish shelters to keep pace with their counterparts in the developed countries, the purpose of which is to shelter, educate and develop the skills, to prepare for the reintegration of these groups into the society.