Copyright (c) 2009 All rights reserved. http://law.bepress.com Recent documents in bepress Law Collection en-us Sat, 07 Nov 2009 05:23:18 PST 3600 http://law.bepress.com/unswwps/flrps09/art44 http://law.bepress.com/unswwps/flrps09/art44 Sun, 25 Oct 2009 23:06:27 PDT The NSW Parliament's Legislation Review Committee was established on the recommendation of a Parliamentary inquiry into the desirability of a bill of rights of rights for New South Wales. While the inquiry found that Parliament had not always fully observed human rights standards, it saw improved legislative scrutiny of bills as a more appropriate response than the enactment of a bill of rights. This paper examines a number of aspects of the Committee's recent work in order to ascertain whether under its traditional common law scrutiny mandate the Committee consistently examines draft legislation in the light of the international human rights norms by which Australia is bound. It concludes that the Committee does reasonably well in identifying classical civil liberties concerns, though it tends not to apply a rigorous human rights analysis to these rights. On the other hand, notwithstanding its broad interpretation of its mandate, the Committee has done less well in relation to the identification and analysis of other rights, in particular in relation to economic, social and cultural rights. The paper argues that even with enhanced Parliamentary scrutiny, the adoption of a bill of rights would make a difference, as it would provide a clear and comprehensive set of standards and a framework for full human rights analysis, while the prospect of even soft judicial review would focus the minds of policymakers and legislators on human rights issues in the legislative process. Andrew Byrnes Human Rights Law http://law.bepress.com/unswwps/flrps09/art43 http://law.bepress.com/unswwps/flrps09/art43 Thu, 22 Oct 2009 16:48:29 PDT The high seas cover more than 50% of the planet's surface. The last thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. At the same time there is evidence of the impacts of the increased intensity of existing human activities; increases in maritime transportation, marine pollution, particularly from land based sources, such as garbage, as well as traditional fishing techniques. These issues, which affect waters both inside and outside national jurisdiction, pose governance issues. This chapter seeks to set out the key risks that high seas areas face, the plethora of bodies with regional and sectoral jurisdiction but also the lacunae - the regulatory and governance gaps that exist. David Freestone International Law Law of the Sea http://law.bepress.com/usclwps/lewps/art108 http://law.bepress.com/usclwps/lewps/art108 Wed, 21 Oct 2009 10:48:46 PDT This paper uses mechanism design theory to analyze how elementary and secondary private schools decide which students to admit from their applicant pool when wealth is private information. The problem for an individual private school of who to admit and how much to charge in tuition, is complicated by the existence of peer-effects: the value students place on attending school is increasing with the average ability of the entire class at that school. This feature, coupled with the fact that students can always attend public school for free, places constraints on the types of classes the private school can admit. An incentive compatible allocation rule which admits only high ability students violates the private school's operating constraint, while an allocation rule which admits only on the basis of wealth violates student participation constraints. Recognizing the costs associated with verifying wealth type can assist in explaining the structure of tuition contracts between students and private schools. Nina Walton Economics Education Law Law and Economics Law and Society http://law.bepress.com/unswwps/flrps09/art42 http://law.bepress.com/unswwps/flrps09/art42 Thu, 15 Oct 2009 20:37:45 PDT Under the Migration Act, being imprisoned for a criminal offence can constitute grounds for visa cancellation, even for people who have spent most of their lives in Australia. 'Non-citizens' who have had their visas cancelled in this way are liable to detention on completion of their prison sentence; form a significant proportion of the current immigration detainee population and are routinely deported. This paper examines the punitive implications of this policy including: its impact on the parole process; the institutionalisation of double punishment; and the multiple mechanisms of disempowerment operating through the detention regime. While this is still work in progress, the paper argues that criminal convictions do not justify detention and removal, and suggests a framework for future research. Michael Grewcock Criminal Law and Procedure http://law.bepress.com/unswwps/flrps09/art41 http://law.bepress.com/unswwps/flrps09/art41 Mon, 12 Oct 2009 22:48:10 PDT There is conspicuous inequality among World Trade Organisation (WTO) member countries. WTO law has responded to this by creating a set of rules (Special and Differential Treatment or S&DT) which permit specially favorable trading treatment to support the participation of developing countries, even though equality of treatment is a central principle and objective of WTO law. Yet, it is widely agreed that S&DT has not succeeded in its aim of advancing trade equality. Insight into the reasons for this relative failure may be drawn from another body of international law which has equality as a core principle and objective and which also permits special treatment, human rights equality law. Analyzing commonly identified flaws in S&DT from the perspective of the theoretical, conceptual and strategic framework of human rights equality law enables the flaws to be understood more deeply. It also offers a new perspective on the impasse which has been reached in the Doha Round of multilateral trade negotiations and provides robust guidance as to how S&DT may be made stronger, more effective and more operational. Gillian Moon General Law Human Rights Law http://law.bepress.com/unswwps/flrps09/art40 http://law.bepress.com/unswwps/flrps09/art40 Mon, 12 Oct 2009 22:39:38 PDT Responding to recent engagements with Foucault, and in part to the provocation of this conference (' antifoundational humanism '), this paper argues that in his late work Foucault does not submit to the 'moral superiority' of humanism and introduce a liberal humanist subject. Rather, Foucault's late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. Such a reading helps us to assess Foucault's late supposed 'embrace' of, or return to, human rights - which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity. In this way, the paper engages not only with the way in which mainstream accounts of human rights tend to assimilate anti-foundational and post-structural challenges, but also with the quality of Foucault's own political legacy and future in the age of human rights, 25 years on. Ben Golder General Law Human Rights Law http://law.bepress.com/unswwps/flrps09/art39 http://law.bepress.com/unswwps/flrps09/art39 Thu, 01 Oct 2009 20:01:20 PDT In December 2009 the Parties to the 1992 UN Framework Convention on Climate Change (UNFCCC) will meet at the 15th session of the Conference of the Parties (COP) in Copenhagen to agree the fundamental principles of the legal regime that will apply post 2012. This chapter provides an overview of the complex regime established by the Convention, the processes leading up to the adoption of the Kyoto Protocol and key implementation challenges it has experienced. It introduces some of the key processes and institutions and describes some of the key concepts that will be further developed in later chapters. It also discusses briefly the explosive growth of carbon trading and the challenges faced by the UNFCCC parties at Copenhagen. David Freestone Environmental Law International Law http://law.bepress.com/usclwps/lewps/art107 http://law.bepress.com/usclwps/lewps/art107 Thu, 01 Oct 2009 09:06:30 PDT I model a …firm where shareholders choose the manager's compensation in light of the manager's dual roles of exerting effort and making disclosures regarding the …firm's value. Because of limited contracting ability and the divergence of short-term interest between shareholder and manager, shareholders may be unable to obtain their …first-best choices of effort and disclosure policy; where agency costs are too large, shareholders will be unwilling to award performance-based compensation, which induces both effort and fraudulent reporting. The principal …findings are (1) fraud and effort are positively correlated, and given a poor outcome fraud is more likely to obtain when effort is exerted in equilibrium, (2) the incidence of fraud-inducing compensation increases as agency costs decrease, and (3) reductions in agency costs actually increase the incidence of fraud when agency costs are high. James C. Spindler Corporations Economics Law and Economics Securities Law http://law.bepress.com/usclwps/lss/art53 http://law.bepress.com/usclwps/lss/art53 Fri, 25 Sep 2009 08:47:23 PDT In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to "Be a man. Stand up and fight." If he is raped, the victim is often told that he is--or has been made--"gay," and therefore "liked it." Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment. In prison and in court, legal actors depart from ordinary legal rules to enforce the norms of masculinity as law, authorizing straight-identified manly men to police the gender conformity of less manly men by sexually abusing them.Although correctional actors often respond to sexual abuse by enforcing gender rules, the story they tell about prison rape often features a familiar, but misleading, cultural trope of white vulnerability to black violence. This racial narrative obscures institutional responsibility for the gendered legal practices that condone and foster sexual violence, making prison rape seem inevitable. By casting sexual (and nonsexual) violence as a "complex and intractable problem" for which administrators are not to blame, this racial narrative bolsters the rationale for the rules and immunities which largely exempt prisons from the enforcement of constitutional norms. Thus the perception (and reality) of unchecked prison violence supplies a reason for courts not to interfere with the unlawful institutional practices that foster it. Kim S. Buchanan Civil Rights Constitutional Law Criminal Law and Procedure Law and Society Public Law and Legal Theory Sexuality and the Law Women http://law.bepress.com/unswwps/flrps09/art37 http://law.bepress.com/unswwps/flrps09/art37 Wed, 23 Sep 2009 22:55:53 PDT Managing a portfolio for after tax returns can be difficult and expensive and the paper reviews some perceived difficulties with managing a portfolio for after tax returns, actual practices used by managers and five methods for reporting after tax returns to investors and potential investors under Australian tax conditions. The value of unrealised gains in a portfolio is not quite clear as, even though it is considered to be valuable in after tax management, a US study shows that large unrealised gains in a portfolio may not be attractive to potential investors. Gordon Mackenzie Taxation