Statutory Enactments Research Articles

МОНИТОРИНГ НОРМАТИВНЫХ ПРАВОВЫХ АКТОВ ТАМБОВСКОЙ ОБЛАСТИ ЗА 2019 ГОД. Часть 2

МОНИТОРИНГ НОРМАТИВНЫХ ПРАВОВЫХ АКТОВ ТАМБОВСКОЙ ОБЛАСТИ ЗА 2019 ГОД. Часть 2

The President's Two Bodies

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

The Right to Strike and the "Deadweight" of the Common Law

The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law.This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it.Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.

Provisions of Labour Law to Safeguard the Interest of Female Workers to Ensure Equality in India

The jurisprudence of economic development has demonstrated the vigorous role of industrial laws as an instrument of societal and economic justice. Social justice means the attainment of socio-economic objectives laid down by the legislature. Financial soundness is the base of principle of equality of female workers. For a long time, female workers were discriminated in matters of employment and it was felt that gender equality did not find its fulfilment even at the hands of judges. If, we really want to upgrade the status of female workers we have to apportion major significant roles to them. Female are biologically different from males so here equality denotes the equal role considering this condition but difference in term of wages is discrimination. The problem was taken care of by enacting numerous pro female worker provisions like the Maternity Benefit Act, 1961 with the Amendment Act of 2017 and the Equal Remuneration Act, 1976 etc. The Constitution of India also directed the State to make special provisions in favour of them. The Supreme Court by interpreting of articles fourteen, fifteen sixteen and twenty-one of the Indian Constitution has intended significantly to ensure gender justice and no discrimination policy in employment matters. With the above introduction the researcher in this research paper wants to highlight the provisions of Labour Laws related to female workers and how it is ensuring and sustaining the socio- economic justice and equality to maintain the dignity and raise the standard in our society. To justify its observation; the researcher has gone through the various statutory enactments, reviews, the report of various social welfare agencies and the interpretation done by judiciary in number of cases.

Celebrities’ Agony: Locating the Publicity Rights in the Existing IPR Framework

With the advent of various forms of mass media and over activism on their part, and also the ever-increasing trend of advertisements, celebrities are very often exploited by the invasion of their privacy and misappropriation of their names. The celebrities possess privacy and personality rights along with a unique right of publicity. The right to publicity sprouted from the right to privacy in the USA. The UK also recognized this right of celebrities through judicial pronouncements. Many civil law nations like Germany and France have acknowledged this right through statutory enactments. Disappointingly, India is lagging far behind in recognition of this right of celebrities, despite having a plethora of celebrities, whose names and likeness are been misappropriated every now and then. Though the trademark and copyright laws can be relied upon to protect celebrity rights to some extent, these laws have their own shortcomings in protecting publicity rights completely. This article attempts to point out all the variety of rights celebrities possess, and the legal means to protect them. The trademark, copyright, and tort of passing off along with the lacunae in them have been engrossed in the relevant context. The paper finally highlights the judicial trend of considering publicity rights in India, along with some suggestions on its way ahead.

DEVELOPMENT OF PROVIDING PUBLIC SERVICES IN THE ECONOMY AS A GUARANTEE OF EFFICIENCY IN EUROPEAN INTEGRATION PROCESSES

The transitional period, in which most of European and the world countries today are, is in need of renewal and continuity of integration processes in vital areas to which the economic sphere itself belongs. Ensuring the introduction of universally accepted standards for the provision of public services in the economy into the practice of public administration actors is today a priority task of absolutely all countries that have declared in their Basic Law the principles of the rule of law and the rule by law, the recognition of a person, its life and health as the highest value. Significant obstacles to the gradual and systematic nature of such activities, determined by the aggravation of social tension in society, external aggression, the peculiarities of domestic doctrine and legislation, which are formed using well-defined concepts, at the same time, today contain ambiguous provisions on content, in particular, the notion of public services, their varieties, procedures for their provision, performance indicators. The abovementioned causes the necessity to search for the best ways to eliminate the above inconsistencies, which lead to real inhibition of activities as to ensure the quality provision of public services in the economic sphere. Only the cautious implementation of the principles and criteria for evaluating the provision of public services, as implemented in foreign countries (Great Britain, Germany, the USA, France, Hungary, the Baltic States etc.), should take into account the peculiarities of social relations that have developed in a specific state, in particular, in Ukraine one should take into account the complications associated with the current crisis in the political and international situation and, first of all, the urgent need for service orientation of public administration bodies in the economy and the financial sphere. At the same time, the presence of such features should not negatively affect the principle of gradualness and the continuity of the implementation of international standards in this area. Methodology. The solution of the set purpose is realized using the cognitive potential of the system of philosophical, general scientific and special methods. The comparative legal method is dominant, which allowed determining the development directions of domestic statutory enactments in order to bring them in line with the generally accepted standards for the provision of public services, the experience of highly developed economies. Methods of grammatical review and interpretation of legal norms have contributed to identifying gaps and other shortcomings in legislation that regulates the provision of public services in the economy, developing proposals for its improvement. Practical implications. The introduction of effective, timely, and consecutive steps to ensure the provision of quality public services in the economy, based on the unification of the standards of developed countries in the world, which will mean the implementation of an important step towards the global economic crisis recovery. Moreover, an example of the development of public service functions in European countries will demonstrate real achievements of an important task of reformation in countries with less developed democracy and insufficiently high investment climate index.

Does bank stakeholder orientation enhance financial stability?

Using the staggered enactment of constituency statutes across US states, we find that banks with directors whose legal duties are expanded to consider stakeholder and long-term interests significantly reduce risk-taking by increasing capital and shifting to safer borrowers. Additionally, we find that the effect of statute enactment on bank performance is insignificant on average but significantly positive for banks that take excessive risk. Furthermore, we find that banks that previously received a statute enactment fared significantly better during the crises. Our findings support the increasing calls for greater emphasis on stakeholder interests amidst the current bank regulatory and governance reforms.

Who Should Be Driving US Science Policy?

Transparency was not always a desired aspect of medicine or STEM (science, technology, engineering, and math) research. In the late 1940s, the Nuremberg Code heralded a new era of informed patient consent, research subject protection, and the view that the public had a stake in emerging technology and should have some knowledge and input into the directions of scientific research. This understanding intensified in the United States with the very public discussions leading to the promulgation of the NIH Guidelines for Recombinant DNA Research in the 1970s. The way in which oversight of recombinant DNA research was handled is still the exception rather than the rule. Starting in the 1990s, various terror incidents led to the enactment of statutes and issuance of regulations that undermined the ability of scientists and research institutions to self-regulate and in some cases to disseminate information freely. This essay explores how the scientific community got to this status quo, and how it could regain some measure of control despite competing needs for transparency and security, so that research critical to biosecurity is supported rather than impeded.

Trends in the ʼLivingʼLaw Development in Russia: The Lawmaking of Other Authorities

This article defines key directions of the lawmaking development in modern states that are conditioned by peculiarities of the legal development of society. The Presidential, Governmental and other executive authorities have particular importance for the legal regulation.
 Lawmaking problems remain relevant both in legal science and legal activity. Currently, there are many controversial issues in this area, including the correlation between the federal and regional lawmaking, application of sociological methods in the lawmaking process, observance of legislative techniques, identification of law-forming interests and provision of the balance between them, problem of law conflicts, etc.
 In this article we drew our attention to two real-life problems of the modern lawmaking process in Russia. In the first place, it is a hierarchical violation of statutory enactments on legal force. Secondly, it is an improper provision of laws with by-laws. In our opinion, the trends in the lawmaking development manifested in the Russian legal system are a consequence of the following factors: political, social and economic situation in the society; the state position on the international stage; internal processes of the law system development.
 This research mainly aims to identify trends in the development of the modern law making in Russia.

A STUDY ON COMPARATIVE ADVERTISING IN INDIA

A comparative advertisement is one in which a certain product directly mentions a rival by name with the intention of demonstrating how inferior the rival is to the product identifying it. It is a marketing tactic in which a corporation presents its goods or services as superior to those of a rival. A side-by-side comparison of the features of a company's products and those of a rival company's products may be printed as part of a comparative advertising campaign. It might also include a cost-versus-value comparison. A promotional method known as comparative advertising involves the firm's advertising message making explicit or implicit comparisons to rival brands. Comparative advertising has matured and is projected to become more and more significant as a marketing tactic in India for both consumer durable and non-durable goods. The current research is a modest attempt to investigate importance, advantage, and disadvantage before assessing the effectiveness of communication based on an empirical strategy. Comparative advertising is when one party promotes its products or services by making comparisons to those of another party. This other party is frequently his rival or the company that dominates the market for that commodity or service. In order to increase the advertiser's sales, a comparison is made between the two products, either by implying that the advertiser's product is of equal or superior quality to the compared one, or by disparaging the compared product's quality. This article attempts to address the idea of comparative advertising within the context of intellectual property law by examining the various factors involved, statutory enactments, positions taken by courts of law in India and abroad, honest and unfair practices associated with CA, and finally, a comparative analysis of laws of other countries, thereby highlighting the ambiguity and lack of comprehensive laws in India.

Micro Units Development & Refinance Agency – Mudra-“Funding the Unfunded”

India's New breed Entrepreneurs believe that a great product, a brilliant team and the right business model fueled by funding can accelerate the growth and success of entrepreneurs. This paper aims at understanding the role of government in providing financial support to new generation entrepreneurs with reference to the Pradhan Mantri Mudra Yojana (PMMY). The Government of India (GoI) is setting up a Micro Units Development & Refinance Agency (MUDRA) Bank through a statutory enactment. The Bank would partner with state level / regional level co-ordinators to provide finance to Last Mile Financiers of small / micro business enterprises. The research study aims at understanding the operational effectiveness of the MUDRA scheme by supporting and promoting partner institutions and creating an ecosystem of growth for micro enterprises sector. Every third person in an Indian city today is a youth. By 2020, India is set to become the world's youngest country with 64 per cent of its population in the working age group. India's poverty rate is set to decline from 51% of the population in 1990 to 24%, over the next five years. Encouraging entrepreneurship development at micro enterprise level will help raise the standard of the base level population.

Gas Flaring in Nigeria; The Niger Delta Chronicle

The environment which is the totality of human life has been subjected to unwholesome degradation owing to the exploration and production of petroleum. This article examined the adverse effect of the exorbitant gas flaring on the Nigerian environment particularly the Niger Delta Region. This article revealed that environmental sustainability cannot be overemphasized in Nigeria, especially in the Niger Delta region, as its indigenes largely depends on the natural environment for subsistence living, hence, any harm done to the environment would be cataclysmic to their livelihood. The article showed cases of Acid rain, climate change, cancer, respiratory problems, and defect in crop production, among others. This article further showed that irrespective of the number of enacted statutes on environmental preservation, the degradation of the Nigerian environment remains the order of the day. This article therefore recommended holistic implementation of statutory enactment and the intensification of gas investments to facilitate the fight against environmental degradation. This article established that oil exploration and production has become a nightmare to the Nigerian environment as it has caused environmental degradation, especially in the Niger Delta region.

Post-Earthquake Resurrection: Jurisprudential Diagnosis from the Standpoint of the Earthquake Victims

Natural disaster is an ongoing phenomenon and among many, the earthquake is one. Nepal holds 11th position in the world as an earthquake prone country because of its geological formations. This paper endeavours to analyse the ongoing reconstruction and rehabilitation efforts taken by Nepal Government after the massive earthquake of 2015. The quest of Building Back Better (BBB) under the resurrection schemes for families, whose houses have been collapsed and challenges are encountered per se, following the statutory enactment and underlying opportunity and threats have been diagnosed in this paper. This study is based upon the field research done in course of conducting 90 different Community Mobile Legal Clinics (CMLCs) in the house of the earthquake victims in three most crisis hit districts i.e. Sindhupalchwok, Gorkha and Bhaktapur, where these clinics were designed to meet triad objectives of legal awareness, consultations and legal aids. The study further attempts to reflect the functions of National Reconstruction Authority for excelling the pace of reconstruction.

The Impact of Stakeholder Orientation on Bank Risk-Taking: Evidence from Natural Experiment

Using the staggered enactment of US state constituency statutes, which expand directors’ authority to consider stakeholder and long-term interests, we find that stakeholder orientation significantly reduces bank risk. This relationship is robust to reverse causality and controlling for coincidental banking policy changes and unobservable local economic conditions. Consistent with lower risk-taking, we find that after statute enactment, banks increase their capital and lend to safer borrowers. Furthermore, we show that the effect of stakeholder orientation on bank performance is insignificant on average but significantly positive for banks that likely take excessive risk. Finally, we find that banks that previously received a statute enactment fared significantly better during the crises. Overall, our findings support the increasing calls for greater emphasis on stakeholder interests in the current bank regulatory and governance reforms.

Efficiency of common-pool resource institutions: focusing on water users associations in South Africa

Despite of the promulgation of new water laws post-apartheid by the South African government, some parts of the country are still faced with inequitable, inefficient and inadequate water supply. Water institutions in South Africa and other developing countries are faced with various and multi-faceted challenges that consequently lead to their failure to provide water resources effectively. The evident responsibility of governing water resources in developing countries is commonly played by local and national institutions, using the water sector’s fundamental regulations, policies as well as statutory enactments. This paper draws lessons from the international examples to analyse the motivation for WUAs and the challenges they are faced with. The method for data generation used in this article is document analysis. A narrative approach using the literature and document analysis provided an insight into the economic and institutional history of WUAs. The analytical framework to study path dependency and power relations in connection with WUAs in South Africa was drawn from a literature review of transition studies and NIE. This study established that the current and future decisions made by the WUAs in South Africa are not entirely independent of those made in the past under irrigation boards. The study argues that establishing WUAs cannot automatically substitute for the domains of relations which existed within irrigation boards.

Queer Criminal Justice of Indian Maritime Law

A Legal System is not a residue of fossil but is a living organism which grows through the judicial process and statutory enactments. The Indian legal system is wholly competent to deal with any dispute vis-a-vis any field of law and has in the 65 years history of republic resolved the complex issues very smoothly. Recent Enrica Lexie incident have compelled the Indian judiciary, Jurist, Research Scholar and other altruistic person to turn the pages of Indian Maritime Jurisprudence. There are various pivotal questions that have emerged out of legal confabulation. Though, the issue of jurisdiction was famous catchphrase among the legal debate but when we contemplate and intrude upon this issue, it can be identified that the most pertinent question involved was so called alleged ambiguity of Indian Maritime Law. This article is an attempt to highlight the consequences of Enrica Lexie Incident under the Admiralty Offences (Colonial) Act, 1849 which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea. An effort is taken to substantiate prosecution under the said act. The legal justification for non- applicability of IPC and CrPC is highlighted in order to draw an analogy with respect to an implication of Admiralty Offences (Colonial) Act, 1849 and SUA Act, 2002.

The 'pay ratio' provision of the <i>Dodd-Frank Act</i> 2010 and presentation of the Paulo–Le Roux Index

Orientation: This article addresses the issues of executive remuneration and whether it was excessive or not.Research purpose: On 05 August 2015, the US Securities and Exchange Commission (SEC) adopted a rule to operationalise Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (Dodd-Frank or the Dodd-Frank Act 2010), the ‘pay ratio provision’, as part of a process to ensure sound corporate governance and shed light on assertions that corporate executive remuneration was excessive and detrimental to the economic wellbeing of the USA. This pay ratio rule will be operative starting from 2017 and requires public firms to publish the ratio of chief executive officer (CEO) remuneration to the median remuneration of all its employees. Hence, it is a measure of income distribution. It does not reveal the relationship between executive compensation and the value added to the firm by executives. In anticipation of this rule becoming mandatory and as part of a quest to quantify the value of executives to the firm, Paulo and Le Roux (2014) developed an approach to measure the value executives add to the firm, drawing from audited financial statements and thereby demonstrating that the value added by executive management could be measured according to the requirements of sound research methodology and rigorous epistemology.Motivation for the study: Statutory enactment of the pay ratio provision provided the impetus to create an index, the Paulo–Le Roux Index, that shows how much executives are paid in relation to how much value they add to the firm.Research design, approach and method: Paulo and Le Roux (2014) developed an approach to measure the value executives add to the firm, drawing from audited financial statements and thereby demonstrating that the value added by executive management could be measured according to the requirements of sound research methodology and rigorous epistemology. Statutory enactment of the pay ratio provision provided the impetus to create an index, the Paulo–Le Roux Index, that shows how much executives are paid in relation to how much value they add to the firm. The value added to the firm is a composite of the value drivers, sales, growth, capital requirements (CR), operating profitability (OP), and the discount rate in the form of a weighted average cost of capital (WACC).Main findings: Discussions that hitherto have been normative regarding executive remuneration, and unrelated to the value created by executives, can now be based on rigorous valuations that draw from audited financial statements.Practical/managerial implications: Numerous advantages accrue from the use of this index for all stakeholders, managers, organised labour, investors, as well as for asset allocation and corporate restructuring, the risk incurred in adding value, and the strategies applied. This index can be used for any enterprise, division, functional area, or project, and for any financial period for which audited financial statements are available.Contribution: Using the index ensures sound corporate governance and shed light on assertions that corporate executive remuneration was excessive and detrimental to the economic wellbeing.

Establishment of the Concept of Multicultural Education and Institutionalization in South Korea

The purpose of this study is to analyze how the concept of multicultural education was established in Korea and examine if the concept is being validly legalized and institutionally realized in education. For this, we compared the conceptual elements of multicultural education being settled down in Korea with those of foreign countries, and based on it, we investigated how multicultural education is being reproduced in various legislations. In Korea, due to the advent of multicultural society caused by increase of immigrants, the establishment of multicultural policies and enactment of statutes, multicultural education has become more important. However, although the concept of multicultural education of Korea is similar to that of the western society, Korea has focused on assimilation. Thus, in order for multicultural education to be established in schools and society, it is very important to examine how multicultural education is being institutionalized in related legislations. To this end, this study performed theoretical research for establishing the concepts in both pedagogical and juristic perspectives. As a result of the analysis, it turned out that multicultural education was institutionalized being divided into education for immigrants' social adaptation, support for children with immigration background on right for learning and multicultural education for general students and general members of community. However, it could be found that, multicultural education is lacking for general people and all students. Regarding the purpose of education, it was indicated that while 'social integration' having 'nationalization' as the premise is being focused, people's understanding of multicultural society and guaranteeing cultural diversity of immigrants are not sufficient. Based on the study results, as the developmental direction of multicultural education in Korea, an emphasis on immigrants' human rights and cultural diversity, and the paradigm shift to multicultural education embracing all students and citizens were suggested as alternatives.

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for Chevron Deference”

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

Plight of Abandoned Indian Women in Non Resident Indian Marriages: A Critical Analysis

Plight of Abandoned Indian Women in Non Resident Indian Marriages: A Critical Analysis