Getting Away With It:Corruption, Moral Indignation and the Limits of Legal Accountability

In this paper we address the idea of ‘legal but corrupt’ through a discussion of two cases: abuse scandals in the Irish Catholic Church and the financial services industry in the wake of the Global Financial Crisis. We identify two important dynamics that generated the scandals: that they were driven by strong and stable groups existing within a peculiar kind of ‘accountability space’ that we describe as ‘monastic’ and that those groups persisted with tacit or explicit support from the state. ‘Legal but corrupt’ is, we argue, a matter of insider incomprehension sustained by the ceding of sovereignty over some aspect of social or economic life.

Faith-based Non-Governmental Organizations in the Public Square

This chapter has both a methodological and a substantive aim. First, I suggest, using the role and function of NGOs in religiously related legal disputes as a paradigm example, the distinction between institutional, doctrinal, and theoretical approaches to the study of the relationship between religion and law is sometimes unhelpful, creating a barrier preventing us from understanding the phenomenon that we are examining. Instead, I suggest, a more integrated understanding, drawing on each of these approaches and seeing how they relate to each other, may well be more illuminating. The second aim of this chapter is to suggest, in a preliminary way, that the phenomenon of faith-based organizations should be more integrated than in the past into doctrinal and theoretical debates in the area of law and religion, in particular the problem of how liberal society is to engage with organized religion where there is a fundamental dispute as to who represents that religion, or as to what the basic tenets of that religion are.

The Equalization of Effective Communicative Freedom: Democratic Justice in the Constitutional State and Beyond

Jurgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy presupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states.

Enforcing Member State Compliance with EU Environmental Law: A Critical Evaulation of the Use of Financial Penalties

The 1993 Treaty on European Union finally closed a legal vacuum in
EU law, by giving the Court the power to impose financial penalties to
enforce compliance with its judgments. Today, this power is found
within Article 260(2) of the Treaty on the Functioning of the
European Union. Drawing upon case law, this article examines the
role that the Court’s enforcement powers have played in relation to
EU environmental law. It argues that EU law has yet to make full use
of their potential. The article commences with the Commission and
questions whether it has sufficient resources to carry out its functions
under Article 260(2). The article also examines the ongoing problem of
Member State delay in complying with Court judgments and the
weight given to environmental considerations in the Court’s decision
making on financial penalties. The article concludes by examining the
implications of the Lisbon Treaty.

Vetting Sexual Offenders: State Over-extension, the Punishment Deficit and the Failure to Manage Risk

This article examines the state regulation of sexual offenders in the particular context of pre-employment vetting. A successive range of statutory frameworks have been put in place, culminating in the Safeguarding Vulnerable Groups Act 2006, to prevent unsuitable individuals from working with the vulnerable, and children in particular. Contemporary legislative and policy developments are set against a backdrop of broader concerns in the area of crime and justice, namely risk regulation, preventative governance and ‘precautionary logic.’ Proponents of these approaches have largely ignored concerns over their feasibility. This article specifically addresses this fissure within the specific field of vetting. It is argued that ‘hyper innovation’ and state over-extension in this area are particularly problematic and have resulted in exceptionally uncertain and unsafe policies. These difficulties relate principally to unrealistic public expectations about the state’s ability to control crime; unintended and ambiguous policy effects; and ultimately the failure of the state to deliver on its self-imposed regulatory mandate to effectively manage risk.

Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources

Human rights based budget analysis projects have emerged at a time when the United Nations has asserted the indivisibility of all human rights and attention is increasingly focused on the role of non-judicial bodies in promoting and protecting human rights. This book seeks to develop the human rights framework for such budget analyses, by exploring the international law obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in relation to budgetary processes. The book outlines international experiences and comparative practice in relation to economic and social rights budget analysis and budgeting.

The book sets out an ICESCR-based methodology for analysing budget and resource allocations and focuses on the legal obligation imposed on state parties by article 2(1) of ICESCR to progressively realise economic and social rights to 'the maximum of available resources'. Taking Northern Ireland as a key case study, the book demonstrates and promotes the use of a ‘rights-based’ approach in budgetary decision-making.

The book will be relevant to a global audience currently considering how to engage in the budget process from a human rights perspective. It will be of interest to students and researchers of international human rights law and public law, as well as economic and social rights advocacy and lobbying groups.

Capitalism, the state and health care in the age of austerity:A Marxist analysis

The capacity to provide satisfactory nursing care is being increasingly compromised by current trajectories of healthcare funding and governance. The purpose of this paper is to examine how well Marxist theories of the state and its relationship with capital can explain these trajectories in this period of ever-increasing austerity. Following a brief history of the current crisis, it examines empirically the effects of the crisis, and of the current trajectory of capitalism in general, upon the funding and organization of the UK and US healthcare systems. The deleterious effect of growing income inequalities to the health of the population are also addressed. Marx’s writings on the state and its relation to the capitalist class were fragmentary, and historically and geographically specific. From them, we can extract three theoretical variants: the instrumentalist theory of the state, where the state has no autonomy from capital; the abdication theory, whereby capital abstains from direct political power and relies on the state to serve its interests; and the class-balance theory of the state, whereby the struggle between two opposed classes allows the state to assert itself. Discussion of modern Marxist interpretations include Poulantzas’s structuralist abdication theory and Miliband’s instrumentalist theory. It is concluded that, despite the pluralism of electoral democracies, the bourgeoisie do have an overweening influence upon the state. The bourgeoisie’s ownership of the means of production provides the foundation for its influence because the state is obliged to rely on it to manage the supply of goods and services and the creation of wealth. That power is further reinforced by the infiltration of the bourgeoisie into the organs of state. The level of influence has accelerated rapidly over recent decades. One of the consequences of this has been that healthcare systems have become rich pickings for the evermore confident bourgeoisie.

Older people and legal advice – the need for joined up and creative approaches

This paper reports the findings from research conducted with older people in Northern
Ireland which investigated whether their needs for legal information and advice were
being met. One of the unique aspects of the research involved investigating the
potential of the internet as a possible source for advising older people in relation to
legal problems. The findings suggest that online legal information may frequently assist
older people in identifying potential answers to their legal questions, but may not be an
adequate substitute for personal communication and advice. The research also
highlights the need for professionals to work together to meet the needs of older
persons for legal advice and to safeguard their interests. Such ‘joined up’ approaches
are particularly important, for example at the point of dementia diagnosis, where
information sharing between health and social care professionals may significantly
promote the legal and welfare interests of older people at a vulnerable point in their
lives. This paper therefore turns to work by university-based legal clinics in the United
States, such as the Elder Law Clinic at Pennsylvania State University, where social
work or healthcare professionals, lawyers and law students collaborate to support older
people in their search for resolution of legal problems.

Avoidance Techniques: State Related Defences in International Antitrust Cases

Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.

This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises

Construction Disputes in Small to Medium Enterprises in Ireland during Recession: Identification of Critical Factors

Purpose - To identify the critical factors causing construction disputes in Small to Medium Enterprises (SMEs) in Ireland during the recent recession period of 2007 to 2013.
Design/Methodology/Approach - A mixed method approach incorporating a literature review, case studies and questionnaire survey, with results analysed using exploratory (data reduction) factor analysis.
Findings - The results indicate seven core critical factors which result in construction disputes in SMEs in Ireland during a recession: Payment and extras; Physical work conditions; Poor financial/legal practise; Changes to the agreed scope of works; Time overrun; Defects; and Requests for increase in speed of project and long-term defects.
Research Limitations/Implications - With Ireland emerging from the current economic recession and the prevalence of SMEs to the construction sector, it is essential to document the core critical factors of construction disputes which emerge within this particular segment of the built environment.
Practical Implications - To address the adversarial nature of the construction sector and the prevalence of SMEs, it is essential to identify and document the critical factors of construction disputes within this remit. It is envisaged that the results of this research will be acknowledged, and the recommendations adopted, by construction SMEs, particularly within Ireland, as they emerge from the economic recession.
Originality/Value - This paper fulfils a gap in knowledge with the emergence of the economic recession and the identification of critical factors of construction dispute within SMEs in the Irish construction industry.

Mining Money: the generative capacities of scientific and legal knowledge practices in the making of resource economies

In 1997 a scandal associated with Bre-X, a junior mining firm, and its prospecting activities in Indonesia, exposed to public scrutiny the ways in which mineral exploration firms acquire, assess and report on scientific claims about the natural environment. At stake here was not just how investors understood the provisional nature of scientific knowledge, but also evidence of fraud. Contemporaneous mining scandals not only included the salting of cores, but also unreliable proprietary sample preparation and assay methods, mis-representations of visual field estimates as drilling results and ‘overly optimistic’ geological reports. This paper reports on initiatives taken in the wake of these scandals and prompted by the Mining Standards Task Force (TSE/OSC 1999). For regulators, mandated to increase investor confidence in Canada’s leading role within the global mining industry, efforts focused first and foremost upon identifying and removing sources of error and wilfulness within the production and circulation of scientific knowledge claims. A common goal cross-cutting these initiatives was ‘a faithful representation of nature’ (Daston and Galison 2010), however, as the paper argues, this was manifest in an assemblage of practices governed by distinct and rival regulative visions of science and the making of markets in claims about ‘nature’. These ‘practices of fidelity’, it is argued, can be consequential in shaping the spatial and temporal dynamics of the marketization of nature.