Questions and Answers : Contract Law [4th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

A pragmatic approach to intellectual property and development : a case study of the Jordanian copyright law in the internet age

On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and shows how, in practical terms, a pro-development-oriented approach could be implemented in the copyright laws of developing countries. It provides specific recommendations for developing countries to ensure that their IP laws are aligned with and serve their social and economic development objectives.

Promotion and succession management and associated retention issues in Australian law firms

The focus of this research was promotion and succession management in Australian law firms. Two staff retention issues currently faced by the Australian legal industry were identified as suggesting possible failures in this area: 1) Practitioners are leaving law firms early in their careers, 2) Female representation is disproportionally low at partnership level. The research described current Australian law firm promotion and succession practices and then explained their possible relevance to the two retention issues. The overall aim of the research was to uncover key findings and present practical recommendations to law firm managers and partners ready for incorporation into their future promotion and succession planning practice. In so doing the research aimed to benefit the Australian legal community as a whole. Four areas of literature relevant to the topic were reviewed, 1) law firm governance concluding that the fundamental values of the P²-Form remained constant (Cooper, Hinings, Greenwood & Brown, 1996; Morris & Pinnington, 1998) with ownership and strategic control of law firms remaining in the hands of partners; 2) the importance of individual practitioners to law firms concluding that the actual and opportunity costs relating to practitioner turnover were significant due to the transient nature of knowledge as a key asset of law firms (Gottschalk & Khandelwal, 2004; Rebitzer & Taylor, 2007); 3) generational differences concluding with support for the work of Finegold, Mohrman and Spreitzer (2002), Davis, Pawlowski and Houston (2006), Kuhnreuther (2003), and Avery, McKay, and Wilson (2007) which indicated that generational cohort differences were of little utility in human resources management practice; and 4) previous research relating to law firm promotion and succession practices indicating that five practices were relevant in law firm promotion outcomes; 1) firm billing requirements (Gorman & Kmec, 2009; Phillips, 2001; Noonan & Corcoran, 2004; Webley & Duff, 2007); 2) mentoring programs (Phillips, 2001; Noonan & Corcoran, 2004); 3) the existence of female partners (Gorman & Kmec, 2009; Beckman & Phillips, 2005); 4) non-partner career paths (Phillips, 2001; Corcoran & Noonan, 2004); and 5) the existence of family friendly policies (Gorman & Kmec, 2009; Phillips, 2001; Noonan & Corcoran, 2004; Webley & Duff, 2007.) The research was carried out via a sequential mixed method approach. The initial quantitative study was based upon a theoretical framework grounded in the literature and provided baseline information describing Australian law firm promotion and succession practices. The study was carried out via an on-line survey of Australian law firm practitioners. The results of the study provided the basis for the second qualitative study. The qualitative study further explained the statistically generated results and focused specifically on the two identified retention issues. The study was conducted via one-on-one interviews with Australian law firm partners and experienced law firm managers. The results of both studies were combined within the context of relevant literature resulting in eight key findings: Key findings 1) Organisational commitment levels across generational cohorts are more homogenous than different. 2) Law firm practitioners are leaving law firms early in their careers due to the heavy time commitment behaviour demanded of them, particularly by clients. 3) Law firm promotion and succession practices reinforce practitioner time commitment behaviour marking it as an indicator of practitioner success. 4) Law firm practitioners believe that they have many career options outside law firms and are considering these options. 5) Female practitioners are considering opting out of law firms due to time commitment demands related to partnership conflicting with family commitment demands. 6) A masculine, high time commitment culture in law firms is related to the decision by female practitioners to leave law firms. 7) The uptake of alternative work arrangements by female practitioners is not fatal to their partnership prospects particularly in firms with supportive policies, processes and organisational culture. 8) Female practitioners are less inclined than their male counterparts to seek partnership as an ultimate goal and are more likely to opt out of law firms exhibiting highly competitive, masculine cultures. Practical recommendations Further review of the data collected in relation to the key findings provided the basis for nine practical recommendations specifically geared towards implementation by law firm managers and partners. The first recommendation relates to the use of generational differences in practitioner management. The next six relate to recommended actions to reduce the time commitment demands on practitioners. The final two recommendations relate to the practical implementation of these actions both at an individual and organisational level. The recommendations are as follows: 1) "Generationally driven," age based generalisations should not be utilised in law firm promotion and succession management practice. 2) Expected levels of client access to practitioners be negotiated on a client by client basis and be included in client retention agreements. 3) Appropriate alternative working arrangements such as working off-site, flexible working hours or part-time work be offered to practitioners in situations where doing so will not compromise client serviceability. 4) The copying of long working hour behaviours of senior practitioners should be discouraged particularly where information technology can facilitate remote client serviceability. 5) Refocus the use of timesheets from an employer monitoring tool to an employee empowerment tool. 6) Policies and processes relating to the offer of alternative working arrangements be supported and reinforced by law firm organisational culture. 7) Requests for alternative working arrangements be determined without regard to gender. 8) Incentives and employment conditions offered to practitioners to be individualised based on the subjective need of the individual and negotiated as a part of the current employee performance review process. 9) Individually negotiated employment conditions be negotiated within the context of the firm’s overall strategic planning process. Through the conduct of the descripto-explanatory study, a detailed discussion of current law firm promotion and succession practices was enabled. From this discussion, 7 eight key findings and nine associated recommendations were generated as well as an insight into the future of the profession being given. The key findings and recommendations provide practical advice to law firm managers and partners in relation to their everyday promotion and succession practice. The need to negotiate individual employee workplace conditions and their integration into overall law firm business planning was put forward. By doing so, it was suggested that both the individual employee and the employing law firm would mutually benefit from the arrangement. The study therefore broadened its practical contribution from human resources management to a contribution to the overall management practice of Australian law firms. In so doing, the research has provided an encompassing contribution to the Australian legal industry both in terms of employee welfare as well as firm and industry level success.

Legal, cultural and practical developments in responding to female genital mutilation : can an absolute human right emerge?

Female genital mutilation (FGM) is a cultural practice involving the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from smaller incisions, to removal of the clitoris and labia, and narrowing or even closing of the vagina. FGM predates and has no basis in the Koran, or any other religious text. Rather, it is a cultural tradition, particularly common in Islamic societies in regions of Africa, motivated by a patriarchal society’s desire to control female bodies and lives. The primary reason for this desire for control is to ensure virginity at marriage, thereby preserving family honour, within a patriarchal social structure where females’ value as persons is intrinsically connected to, and limited to, their worth as virgin brides. Recent efforts at legal prohibition and practical eradication in a growing number of African nations mark a significant turning point in how societies treat females. This shift in cultural power has been catalysed by a concern for female health, but it has also been motivated by an impulse to promote the human rights of girls and women. Although FGM remains widely practiced and there is much progress yet to be made before its eradication, the rights-based approach which has grown in strength embodies a marked shift in cultural power which reflects progress in women’s and children’s rights in the Western world, but which is now being applied in a different cultural context. This chapter reviews the nature of FGM, its prevalence, and health consequences. It discusses recent legal, cultural and practical developments, especially in African nations. Finally, this chapter raises the possibility that an absolute human right against FGM may emerge.

Traffic harmony in China? Investigating driver perceptions of traffic law enforcement and social responsibility for harmonious road use.

Social harmony can manifest in many ways. In rapidly motorizing countries like China, a growing area of potential disharmony is road use. The increased ability to purchase a car for the first time and a subsequent increase in new drivers has seen several Chinese cities take unprecedented measures to manage congestion. There is a corresponding need to ensure effective traffic law enforcement in promoting a safe environment for all road users. This paper reports qualitative research conducted with Beijing car drivers to investigate perceptions of unsafe road use, penalties for traffic violations, and improvements for the current system. Overall, the findings suggest awareness among drivers of many of the key risk factors. A perceived lack of clarity in how penalties are determined was identified and drivers in-dicated a desire to know how revenue from traffic fines is used. Several suggestions for improving the current system included school/community education about road risks and traffic law. The rise of private car ownership in China may contribute to a more harmonious personal life, but at the same time, may contribute to a decrease in societal harmony. A major challenge for authorities in any country is to promote the idea of a collective responsibility for road safety (traffic harmony), especially to those who perceive that traffic rules do not apply to them. This is a potentially greater challenge for China as it strives to balance harmony on the road and harmony in the broader society.

International conventions and model laws : their impact on domestic commercial law

Panellist commentary on delivered conference papers on the topic of ‘International Conventions and Model Laws - Their Impact on Domestic Commercial Law’.

Foundations of International Climate Law : Objectives, principles and methods

This chapter explores the objectives, principle and methods of climate law. The United Nations Framework Convention on Climate Change (UNFCCC) lays the foundations of the international regime by setting out its ultimate objectives in Article 2, the key principles in Article 3, and the methods of the regime in Article 4. The ultimate objective of the regime – to avoid dangerous anthropogenic interference – is examined and assessments of the Intergovernmental Panel on Climate Change (IPCC) are considered when seeking to understand the definition of this concept. The international environmental principles of: state sovereignty and responsibility, preventative action, cooperation, sustainable development, precaution, polluter pays and common but differentiated responsibility are then examined and their incorporation within the international climate regime instruments evaluated. This is followed by an examination of the methods used by the mitigation and adaptation regimes in seeking to achieve the objective of the UNFCCC. Methods of the mitigation regime include: domestic implementation of policies, setting of standards and targets and allocation of rights, use of flexibility mechanisms, and reporting. While it is noted that methods of the adaptation regime are still evolving, the latter includes measures such as impact assessments, national adaptation plans and the provision of funding.

Calling for help : a responsive evaluation of Child Health Line

The project examined the responsiveness of the telenursing service provided by the Child Health Line (hereinafter referred to as CHL). It aimed to provide an account of population usage of the service, the call request types and the response of the service to the calls. In so doing, the project extends the current body of knowledge pertaining to the provision of parenting support through telenursing. Approximately 900 calls to the CHL were audio-recorded over the December 2005-2006 Christmas-New Year period. A protocol was developed to code characteristics of the call, the interactional features between the caller and nurse call-taker, and the extent to which there was (a) agreement on problem definition and the plan of action and (b) interactional alignment between nurse and caller. A quantitative analysis examined the frequencies of the main topics covered in calls to the CHL and any statistical associations between types of calls, length of calls and nurse-caller alignment. In addition, a detailed qualitative analysis was conducted on a subset of calls dealing with the nurse management of calls seeking medical advice and information. Key findings include: • Overall, 74% of the calls discussed parenting and child development issues, 48% discussed health/medical issues, and 16% were information-seeking calls. • More specifically: o 21% discussed health/medical and parenting and child development issues. o 3% discussed parenting and information-seeking issues. o 5% discussed health/medical, parenting/development and information issues. o 18% exclusively focussed on health and medical issues and therefore were outside the remit of the intended scope of the CHL. These calls caused interactional dilemmas for the nurse call-takers as they simultaneously dealt with parental expectations for help and the CHL guidelines indicating that offering medical advice was outside the remit of the service. • Most frequent reasons for calling were to discuss sleep, feeding, normative infant physical functions and parenting advice. • The average length of calls to the CHL was 7 minutes. • Longer calls were more likely to involve nurse call-takers giving advice on more than one topic, the caller displaying strong emotions, the caller not specifically providing the reason for the call, and the caller discussing parenting and developmental issues. • Shorter calls were characterised by the nurse suggesting that the child receive immediate medical attention, the nurse emphasising the importance or urgency of the plan of action, the caller referring to or requesting confirmation of a diagnosis, and caller and nurse call-taker discussion of health and medical issues. • The majority of calls, 92%, achieved parent-nurse alignment by the conclusion of the call. However, 8% did not. • The 8% of calls that were not aligned require further quantitative and qualitative investigation of the interactional features. The findings are pertinent in the current context where Child Health Line now resides within 13HEALTH. These findings indicate: 1. A high demand for parenting advice. 2. Nurse call-takers have a high level of competency in dealing with calls about parenting and normal child development, which is the remit of the CHL. 3. Nurse call-takers and callers achieve a high degree of alignment when both parties agree on a course of action. 4. There is scope for developing professional practice in calls that present difficulties in terms of call content, interactional behaviour and call closure. Recommendations of the project: 1. There are numerous opportunities for further research on interactional aspects of calls to the CHL, such as further investigations of the interactional features and the association of the features to alignment and nonalignment. The rich and detailed insights into the patterns of nurse-parent interactions were afforded by the audio-recording and analysis of calls to the CHL. 2. The regular recording of calls would serve as a way of increasing understanding of the type and nature of calls received, and provide a valuable training resource. Recording and analysing calls to CHL provides insight into the operation of the service, including evidence about the effectiveness of triaging calls. 3. Training in both recognising and dealing with problem calls may be beneficial. For example, calls where the caller showed strong emotion, appeared stressed, frustrated or troubled were less likely to be rated as aligned calls. In calls where the callers described being ‘at their wits end’, or responded to each proposed suggestion with ‘I’ve tried that’, the callers were fairly resistant to advice-giving. 4. Training could focus on strategies for managing calls relating to parenting support and advice, and parental well-being. The project found that these calls were more likely to be rated as being nonaligned. 5. With the implementation of 13HEALTH, future research could compare nurse-parent interaction following the implementation of triaging. Of the calls, 21% had both medical and parenting topics discussed and 5.3% discussed medical, parenting and information topics. Added to this, in 12% of calls, there was ambiguity between the caller and nurse call-taker as to whether the problem was medical or behavioural.

Internet and e-commerce law, business and policy

Over the last two decades, the internet and e-commerce have reshaped the way we communicate, interact and transact. In the converged environment enabled by high speed broadband, web 2.0, social media, virtual worlds, user-generated content, cloud computing, VoIP, open source software and open content have rapidly become established features of our online experience. Business and government alike are increasingly using the internet as the preferred platform for delivery of their goods and services and for effective engagement with their clients. New ways of doing things online and challenges to existing business, government and social activities have tested current laws and often demand new policies and laws, adapted to the new realities. The focus of this book is the regulation of social, cultural and commercial activity on the World Wide Web. It considers developments in the law that have been, and continue to be, brought about by the emergence of the internet and e-commerce. It analyses how the law is applied to define rights and obligations in relation to online infrastructure, content and practices.

Supporting transition to law school and student well-being : the role of professional legal identity

The empirically established decline in law student well being during the first year of law school is a red-flagged imprimatur for first year curriculum change. This article suggests that by engaging law students with the concept of a positive professional identity, student engagement and intrinsic motivation will increase because they are working towards a career goal that has meaning and purpose. Law school is a time of professional transformation and the legal academy can take steps to ensure that this transformation is inculcated with positive messages. Literature from the fields of law and psychology is analysed in this article, to explain how a positive conception of the legal profession (and a student’s future role within it) can increase a student’s psychological well-being – at law school and beyond.

Transition to law school and law student well-being : The importance of professional legal identity

The empirically established decline in law student well-being during the first year of law school is a red-flagged imprimatur for first year curriculum change. This article suggests that by engaging law students with the concept of a positive professional identity, student engagement and intrinsic motivation will increase because they are working towards a career goal that has meaning and purpose. Law school is a time of professional transformation and the legal academy can take steps to ensure that this transformation is inculcated with positive messages. Literature from the fields of law and psychology is analysed in this article, to explain how a positive conception of the legal profession (and a student’s future role within it) can increase a student’s psychological well-being – at law school and beyond.

The role of fathers in child feeding : perceived responsibility and predictors of participation

Background The role of fathers in shaping their child’s eating behaviour and weight status through their involvement in child feeding has rarely been studied. This study aims to describe the fathers’ perceived responsibility for child feeding, and to identify predictors of how frequently fathers eat meals with their child. Methods Four hundred and thirty-six Australian fathers (M age=37 years, SD=6 years; 34% university educated) of a 2-5 year old child (M age=3.5 years, SD=0.9 years; 53% boys) were recruited via contact with mothers enrolled in existing research projects or a University staff and student email list. Data were collected from fathers via a self-report questionnaire. Descriptive and hierarchical linear regression analyses were conducted. Results The majority of fathers reported that the family often/mostly ate meals together (79%). Many fathers perceived that they were responsible at least half of the time for feeding their child in terms of organizing meals (42%); amount offered (50%) and deciding if their child eats the ‘right kind of foods’ (60%). Time spent in paid employment was inversely associated with how frequently fathers ate meals with their child (β=-0.23, p<0.001); however, both higher perceived responsibility for child feeding (β=-0.16, p<0.004) and a more involved and positive attitude toward their role as a father (β=0.20, p<0.001) were positively related to how often they ate meals with their child, adjusting for a range of paternal and child covariates, including time spent in paid employment. Conclusions Fathers from a broad range of educational backgrounds appear willing to participate in research studies on child feeding. Most fathers were engaged and involved in family meals and child feeding. This suggests that fathers, like mothers, should be viewed as potential agents for the implementation of positive feeding practices within the family.

Ethics, Law and Health Care : a Guide for Nurses and Midwives

Understanding ethics and law in health care is an essential part of nurses’ and midwives’ professional standards. Ethics, Law and Health Care focuses on teaching applied ethics and law in a manner that illustrates the real world applications of these core components of the nursing and midwifery curriculum and practice. It equips readers with the ability to recognise and address legal and ethical issues that will arise in their professional practice. The book uses the four principles of biomedical ethics (autonomy, non-maleficence, beneficence and justice) together with the use of both the Nursing and Midwifery Codes of Ethics and Codes of Professional Conduct, issued by the Nursing and Midwifery Board of Australia, as a central means through which to analyse and approach ethical and legal issues. Ethics, Law and Health Care is scaffolded to assist readers in understanding legal and ethical principles, to integrate them in the context of a particular issue within professional practice, and provide them with a decision-making framework to take action in a professional context by utilising the Codes as well as state and federal law. Aided by pedagogical features such as case studies, review questions, further reading and a glossary of common terms, this book is an essential resource for students, academics and practitioners.

Association between maternal depressive symptoms in the early postnatal period and responsiveness in feeding at child age 2 years

Maternal depression is a known risk factor for poor outcomes for children. Pathways to these poor outcomes relate to reduced maternal responsiveness or sensitivity to the child. Impaired responsiveness potentially impacts the feeding relationship and thus may be a risk factor for inappropriate feeding practices. The aim of this study was to examine the longitudinal relationships between self-reported maternal post-natal depressive symptoms at child age 4 months and feeding practices at child age 2 years in a community sample. Participants were Australian first-time mothers allocated to the control group of the NOURISH randomized controlled trial when infants were 4 months old. Complete data from 211 mothers (of 346 allocated) followed up when their children were 2 years of age (51% girls) were available for analysis. The relationship between Edinburgh Postnatal Depression Scale (EPDS) score (child age 4 months) and child feeding practices (child age 2 years) was tested using hierarchical linear regression analysis adjusted for maternal and child characteristics. Higher EPDS score was associated with less responsive feeding practices at child age 2 years: greater pressure [β = 0.18, 95% confidence interval (CI): 0.04–0.32, P = 0.01], restriction (β = 0.14, 95% CI: 0.001–0.28, P = 0.05), instrumental (β = 0.14, 95% CI: 0.005–0.27, P = 0.04) and emotional (β = 0.15, 95% CI: 0.01–0.29, P = 0.03) feeding practices (ΔR2 values: 0.02–0.03, P < 0.05). This study provides evidence for the proposed link between maternal post-natal depressive symptoms and lower responsiveness in child feeding. These findings suggest that the provision of support to mothers experiencing some levels of depressive symptomatology in the early post-natal period may improve responsiveness in the child feeding relationship.