The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

Socio-Epidemiological Aspects of Suicide in Sarajevo from 1992-1995

The project investigated the phenomenon of suicide in war-encircled Sarajevo, where the population was uninterruptedly exposed for four years to direct danger of life from constant shelling and sniper fire, as well as from the lack of essential food items, energy sources and water. It showed that in the pre-war peacetime year of 1991 the suicide rate was 8.36, which was almost 100% less than that in the first post-war peacetime year of 1996, when 16.13 suicides were recorded per 100,000 citizens. The first wartime year, 1992, was characterised by a fall in the number of suicides by almost 40% of the 1991 figure. It is indicative that not a single suicide was registered during the six months from May to October of that first wartime year. In 1993 there was 96.29% increase on 1992, with a total of 53 suicides, showing that the initial shock of danger to one's life from others had passed and that statistics on suicide had returned to "normal". In the following year, 1994, 47 suicides were recorded, and in 1995 the figure was 49. Data from the first post-war peacetime year clearly shows that the human tragedy of taking one's own life has continued, with the number of suicides increasing steadily, especially among demobilised soldiers ranging in age from 30 to 40. Most of them ended their lives by activating a bomb or other explosive device, choosing the place carefully so as to avoid any possible risk to other lives during the act of taking their own.

Securities: Its Conception and Protection of Interests of its Holders

Theoretical studies of the problems of the securities markets in the Russian Federation incline to one or other of the two traditional approaches. The first consists of comparing the definition of "valuable paper" set forth in the current legislation of the Russian Federation, with the theoretical model of "Wertpapiere" elaborated by German scholars more than 90 years ago. The problem with this approach is, in Mr. Pentsov's opinion, that any new features of the definition of "security" that do not coincide with the theoretical model of "Wertpapiere" (such as valuable papers existing in non-material, electronic form) are claimed to be incorrect and removed from the current legislation of the Russian Federation. The second approach works on the basis of the differentiation between the Common Law concept of "security" and the Civil Law concept of "valuable paper". Mr. Pentsov's research, presented in an article written in English, uses both methodological tools and involves, firstly, a historical study of the origin and development of certain legal phenomena (securities) as they evolved in different countries, and secondly, a comparative, synchronic study of equivalent legal phenomena as they exist in different countries today. Employing the first method, Mr. Pentsov divided the historical development of the conception of "valuable paper" in Russia into five major stages. He found that, despite the existence of a relatively wide circulation of valuable papers, especially in the second half of the 19th century, Russian legislation before 1917 (the first stage) did not have a unified definition of valuable paper. The term was used, in both theoretical studies and legislation, but it covered a broad range of financial instruments such as stocks, bonds, government bonds, promissory notes, bills of exchange, etc. During the second stage, also, the legislation of the USSR did not have a unified definition of "valuable paper". After the end of the "new economic policy" (1922 - 1930) the stock exchanges and the securities markets in the USSR, with a very few exceptions, were abolished. And thus during the third stage (up to 1985), the use of valuable papers in practice was reduced to foreign economic relations (bills of exchange, stocks in enterprises outside the USSR) and to state bonds. Not surprisingly, there was still no unified definition of "valuable paper". After the beginning of Gorbachev's perestroika, a securities market began to re-appear in the USSR. However, the successful development of securities markets in the USSR was retarded by the absence of an appropriate regulatory framework. The first effort to improve the situation was the adoption of the Regulations on Valuable Papers, approved by resolution No. 590 of the Council of Ministers of the USSR, dated June 19, 1990. Section 1 of the Regulation contained the first statutory definition of "valuable paper" in the history of Russia. At the very beginning of the period of transition to a market economy, a number of acts contained different definitions of "valuable paper". This diversity clearly undermined the stability of the Russian securities market and did not achieve the goal of protecting the investor. The lack of unified criteria for the consideration of such non-standard financial instruments as "valuable papers" significantly contributed to the appearance of numerous fraudulent "pyramid" schemes that were outside of the regulatory scheme of Russia legislation. The situation was substantially improved by the adoption of the new Civil Code of the Russian Federation. According to Section 1 of Article 142 of the Civil Code, a valuable paper is a document that confirms, in compliance with an established form and mandatory requisites, certain material rights whose realisation or transfer are possible only in the process of its presentation. Finally, the recent Federal law No. 39 - FZ "On the Valuable Papers Market", dated April 22 1996, has also introduced the term "emission valuable papers". According to Article 2 of this Law, an "emission valuable paper" is any valuable paper, including non-documentary, that simultaneously has the following features: it fixes the composition of material and non-material rights that are subject to confirmation, cession and unconditional realisation in compliance with the form and procedure established by this federal law; it is placed by issues; and it has equal amount and time of realisation of rights within the same issue regardless of when the valuable paper was purchased. Thus the introduction of the conception of "emission valuable paper" became the starting point in the Russian federation's legislation for the differentiation between the legal regimes of "commercial papers" and "investment papers" similar to the Common Law approach. Moving now to the synchronic, comparative method of research, Mr. Pentsov notes that there are currently three major conceptions of "security" and, correspondingly, three approaches to its legal definition: the Common Law concept, the continental law concept, and the concept employed by Japanese Law. Mr. Pentsov proceeds to analyse the differences and similarities of all three, concluding that though the concept of "security" in the Common Law system substantially differs from that of "valuable paper" in the Continental Law system, nevertheless the two concepts are developing in similar directions. He predicts that in the foreseeable future the existing differences between these two concepts will become less and less significant. On the basis of his research, Mr. Pentsov arrived at the conclusion that the concept of "security" (and its equivalents) is not a static one. On the contrary, it is in the process of permanent evolution that reflects the introduction of new financial instruments onto the capital markets. He believes that the scope of the statutory definition of "security" plays an extremely important role in the protection of investors. While passing the Securities Act of 1933, the United States Congress determined that the best way to achieve the goal of protecting investors was to define the term "security" in sufficiently broad and general terms so as to include within the definition the many types of instruments that in the commercial world fall within the ordinary concept of "security' and to cover the countless and various devices used by those who seek to use the money of others on the promise of profits. On the other hand, the very limited scope of the current definition of "emission valuable paper" in the Federal Law of the Russian Federation entitled "On the Valuable Papers Market" does not allow the anti-fraud provisions of this law to be implemented in an efficient way. Consequently, there is no basis for the protection of investors. Mr. Pentsov proposes amendments which he believes would enable the Russian markets to become more efficient and attractive for both foreign and domestic investors.

Problem of Tragedy and Tragic Consciousness in Russia at the turn of the 19th Century

This project intertwines philosophical and historico-literary themes, taking as its starting point the concept of tragic consciousness inherent in the epoch of classicism. The research work makes use of ontological categories in order to describe the underlying principles of the image of the world which was created in philosophical and scientific theories of the 17th century as well as in contemporary drama. Using these categories brought Mr. Vilk to the conclusion that the classical picture of the world implied a certain dualism; not the Manichaean division between light and darkness but the discrimination between nature and absolute being, i.e. God. Mr. Vilk begins with an examination of the philosophical essence of French classical theatre of the XVII and XVIII centuries. The history of French classical tragedy can be divided into three periods: from the mid 17th to early 19th centuries when it triumphed all over France and exerted a powerful influence over almost all European countries; followed by the period of its rejection by the Romantics, who declared classicism to be "artificial and rational"; and finally our own century which has taken a more moderate line. Nevertheless, French classical tragedy has never fully recovered its status. Instead, it is ancient tragedy and the works of Shakespeare that are regarded to be the most adequate embodiment of the tragic. Consequently they still provoke a great number of new interpretations ranging from specialised literary criticism to more philosophical rumination. An important feature of classical tragedy is a system of rules and unities which reveals a hidden ontological structure of the world. The ontological picture of the dramatic world can be described in categories worked out by medieval philosophy - being, essence and existence. The first category is to be understood as a tendency toward permanency and stability (within eternity) connected with this or that fragment of dramatic reality. The second implies a certain set of permanent elements that make up the reality. And the third - existence - should be understood as "an act of being", as a realisation of permanently renewed processes of life. All of these categories can be found in every artistic reality but the accents put on one or another and their interrelations create different ontological perspectives. Mr. Vilk plots the movement of thought, expressed in both philosophical and scientific discourses, away from Aristotle's essential forms, and towards a prioritising of existence, and shows how new forms of literature and drama structured the world according to these evolving requirements. At the same time the world created in classical tragedy fully preserves another ontological paradigm - being - as a fundamental permanence. As far as the tragic hero's motivations are concerned this paradigm is revealed in the dedication of his whole self to some cause, and his oath of fidelity, attitudes which shape his behaviour. It may be the idea of the State, or personal honour, or something borrowed from the emotional sphere, passionate love. Mr. Vilk views the conflicting ambivalence of existence and being, duty as responsibility and duty as fidelity, as underlying the main conflict of classical tragedy of the 17th century. Having plotted the movement of the being/existence duality through its manifestations in 17th century tragedy, Mr. Vilk moves to the 18th century, when tragedy took a philosophical turn. A dualistic view of the world became supplanted by the Enlightenment idea of a natural law, rooted in nature. The main point of tragedy now was to reveal that such conflicts as might take place had an anti-rational nature, that they arose as the result of a kind of superstition caused by social reasons. These themes Mr. Vilk now pursues through Russian dramatists of the 18th and early 19th centuries. He begins with Sumarakov, whose philosophical thought has a religious bias. According to Sumarakov, the dualism of the divineness and naturalness of man is on the one hand an eternal paradox, and on the other, a moral challenge for humans to try to unite the two opposites. His early tragedies are not concerned with social evils or the triumph of natural feelings and human reason, but rather the tragic disharmony in the nature of man and the world. Mr Vilk turns next to the work of Kniazhnin. He is particularly keen to rescue his reputation from the judgements of critics who accuse him of being imitative, and in order to do so, analyses in detail the tragedy "Dido", in which Kniazhnin makes an attempt to revive the image of great heroes and city-founders. Aeneas represents the idea of the "being" of Troy, his destiny is the re-establishment of the city (the future Rome). The moral aspect behind this idea is faithfulness, he devotes himself to Gods. Dido is also the creator of a city, endowed with "natural powers" and abilities, but her creation is lacking internal stability grounded in "being". The unity of the two motives is only achieved through Dido's sacrifice of herself and her city to Aeneus. Mr Vilk's next subject is Kheraskov, whose peculiarity lies in the influence of free-mason mysticism on his work. This section deals with one of the most important philosophical assumptions contained in contemporary free-mason literature of the time - the idea of the trinitarian hierarchy inherent in man and the world: body - soul - spirit, and nature - law - grace. Finally, Mr. Vilk assess the work of Ozerov, the last major Russian tragedian. The tragedies which earned him fame, "Oedipus in Athens", "Fingal" and "Dmitri Donskoi", present a compromise between the Enlightenment's emphasis on harmony and ontological tragic conflict. But it is in "Polixene" that a real meeting of the Russian tradition with the age-old history of the genre takes place. The male and female characters of "Polixene" distinctly express the elements of "being" and "existence". Each of the participants of the conflict possesses some dominant characteristic personifying a certain indispensable part of the moral world, a certain "virtue". But their independent efforts are unable to overcome the ontological gap separating them. The end of the tragedy - Polixene's sacrificial self-immolation - paradoxically combines the glorification of each party involved in the conflict, and their condemnation. The final part of Mr. Vilk's research deals with the influence of "Polixene" upon subsequent dramatic art. In this respect Katenin's "Andromacha", inspired by "Polixene", is important to mention. In "Andromacha" a decisive divergence from the principles of the philosophical tragedy of Russian classicism and the ontology of classicism occurs: a new character appears as an independent personality, directed by his private interest. It was Katenin who was to become the intermediary between Pushkin and classical tragedy.

Workfare Work: The Impact of Workfare on the Worker/Client Relationship

This article details the American experience of welfare reform, and specifically its experience instituting workfare programs for participants. In the United States, the term "welfare" is most commonly used to refer to the program for single mothers and their families, formerly called Aid to Families with Dependent Children (AFDC) and now, Temporary Assistance to Needy Families (TANF). In 1996, politicians "ended welfare as we know it" by fundamentally changing this program with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The principal focus of the 1996 reform is mandatory work requirements enforced by sanctions and strict time limits on welfare receipt. While PRWORA's emphasis on work is not new, the difference is its significant ideological and policy commitment to employment, enforced by time limits. When welfare reform was enacted, some of its proponents recognized that welfare offices would have to change in order to develop individualized workfare plans, monitor progress, and impose sanctions. The "culture" of welfare offices had to be changed from being solely concerned with eligibility and compliance to individual, intensive casework. In this article, I will discuss how implementing workfare programs have influenced the relationship between clients and their workers at the welfare office. I start by describing the burdens faced by offices even before the enactment of welfare reform. Local welfare offices were expected to run programs that emphasized compliance and eligibility at the same time as workfare programs, which require intensive, personal case management. The next section of the paper will focus on strategies welfare offices and workers use to navigate these contradictory expectations. Lastly, I will present information on how clients react to workfare programs and some reasons they acquiesce to workfare contracts despite their unmet needs. I conclude with recommendations of how to make workfare truly work for welfare clients.

Semiotic Analysis in the Study of Social Work

Research and professional practices have the joint aim of re-structuring the preconceived notions of reality. They both want to gain the understanding about social reality. Social workers use their professional competence in order to grasp the reality of their clients, while researchers’ pursuit is to open the secrecies of the research material. Development and research are now so intertwined and inherent in almost all professional practices that making distinctions between practising, developing and researching has become difficult and in many aspects irrelevant. Moving towards research-based practices is possible and it is easily applied within the framework of the qualitative research approach (Dominelli 2005, 235; Humphries 2005, 280). Social work can be understood as acts and speech acts crisscrossing between social workers and clients. When trying to catch the verbal and non-verbal hints of each others’ behaviour, the actors have to do a lot of interpretations in a more or less uncertain mental landscape. Our point of departure is the idea that the study of social work practices requires tools which effectively reveal the internal complexity of social work (see, for example, Adams & Dominelli & Payne 2005, 294 – 295). The boom of qualitative research methodologies in recent decades is associated with much profound the rupture in humanities, which is called the linguistic turn (Rorty 1967). The idea that language is not transparently mediating our perceptions and thoughts about reality, but on the contrary it constitutes it was new and even confusing to many social scientists. Nowadays we have got used to read research reports which have applied different branches of discursive analyses or narratologic or semiotic approaches. Although differences are sophisticated between those orientations they share the idea of the predominance of language. Despite the lively research work of today’s social work and the research-minded atmosphere of social work practice, semiotics has rarely applied in social work research. However, social work as a communicative practice concerns symbols, metaphors and all kinds of the representative structures of language. Those items are at the core of semiotics, the science of signs, and the science which examines people using signs in their mutual interaction and their endeavours to make the sense of the world they live in, their semiosis. When thinking of the practice of social work and doing the research of it, a number of interpretational levels ought to be passed before reaching the research phase in social work. First of all, social workers have to interpret their clients’ situations, which will be recorded in the files. In some very rare cases those past situations will be reflected in discussions or perhaps interviews or put under the scrutiny of some researcher in the future. Each and every new observation adds its own flavour to the mixture of meanings. Social workers have combined their observations with previous experience and professional knowledge, furthermore, the situation on hand also influences the reactions. In addition, the interpretations made by social workers over the course of their daily working routines are never limited to being part of the personal process of the social worker, but are also always inherently cultural. The work aiming at social change is defined by the presence of an initial situation, a specific goal, and the means and ways of achieving it, which are – or which should be – agreed upon by the social worker and the client in situation which is unique and at the same time socially-driven. Because of the inherent plot-based nature of social work, the practices related to it can be analysed as stories (see Dominelli 2005, 234), given, of course, that they are signifying and told by someone. The research of the practices is concentrating on impressions, perceptions, judgements, accounts, documents etc. All these multifarious elements can be scrutinized as textual corpora, but not whatever textual material. In semiotic analysis, the material studied is characterised as verbal or textual and loaded with meanings. We present a contribution of research methodology, semiotic analysis, which has to our mind at least implicitly references to the social work practices. Our examples of semiotic interpretation have been picked up from our dissertations (Laine 2005; Saurama 2002). The data are official documents from the archives of a child welfare agency and transcriptions of the interviews of shelter employees. These data can be defined as stories told by the social workers of what they have seen and felt. The official documents present only fragmentations and they are often written in passive form. (Saurama 2002, 70.) The interviews carried out in the shelters can be described as stories where the narrators are more familiar and known. The material is characterised by the interaction between the interviewer and interviewee. The levels of the story and the telling of the story become apparent when interviews or documents are examined with the use of semiotic tools. The roots of semiotic interpretation can be found in three different branches; the American pragmatism, Saussurean linguistics in Paris and the so called formalism in Moscow and Tartu; however in this paper we are engaged with the so called Parisian School of semiology which prominent figure was A. J. Greimas. The Finnish sociologists Pekka Sulkunen and Jukka Törrönen (1997a; 1997b) have further developed the ideas of Greimas in their studies on socio-semiotics, and we lean on their ideas. In semiotics social reality is conceived as a relationship between subjects, observations, and interpretations and it is seen mediated by natural language which is the most common sign system among human beings (Mounin 1985; de Saussure 2006; Sebeok 1986). Signification is an act of associating an abstract context (signified) to some physical instrument (signifier). These two elements together form the basic concept, the “sign”, which never constitutes any kind of meaning alone. The meaning will be comprised in a distinction process where signs are being related to other signs. In this chain of signs, the meaning becomes diverged from reality. (Greimas 1980, 28; Potter 1996, 70; de Saussure 2006, 46-48.) One interpretative tool is to think of speech as a surface under which deep structures – i.e. values and norms – exist (Greimas & Courtes 1982; Greimas 1987). To our mind semiotics is very much about playing with two different levels of text: the syntagmatic surface which is more or less faithful to the grammar, and the paradigmatic, semantic structure of values and norms hidden in the deeper meanings of interpretations. Semiotic analysis deals precisely with the level of meaning which exists under the surface, but the only way to reach those meanings is through the textual level, the written or spoken text. That is why the tools are needed. In our studies, we have used the semiotic square and the actant analysis. The former is based on the distinctions and the categorisations of meanings, and the latter on opening the plotting of narratives in order to reach the value structures.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required

Herbivory in Spiders: The Importance of Pollen for Orb-Weavers

Orb-weaving spiders (Araneidae) are commonly regarded as generalist insect predators but resources provided by plants such as pollen may be an important dietary supplementation. Their webs snare insect prey, but can also trap aerial plankton like pollen and fungal spores. When recycling their orb webs, the spiders may therefore also feed on adhering pollen grains or fungal spores via extraoral digestion. In this study we measured stable isotope ratios in the bodies of two araneid species (Aculepeira ceropegia and Araneus diadematus), their potential prey and pollen to determine the relative contribution of pollen to their diet. We found that about 25% of juvenile orb-weaving spiders’ diet consisted of pollen, the other 75% of flying insects, mainly small dipterans and hymenopterans. The pollen grains in our study were too large to be taken up accidentally by the spiders and had first to be digested extraorally by enzymes in an active act of consumption. Therefore, pollen can be seen as a substantial component of the spiders’ diet. This finding suggests that these spiders need to be classified as omnivores rather than pure carnivores.

Conceptual Bases of the Planning Process in Family Preservation/Family Support State Plans

Congress and the Department of Health and Human Services (DHHS) intend for the Family Preservation and Support Act of 1993 (P.L. 103-66) to catalyze major reforms in state human services systems. DHHS and numerous other institutions developed conceptual and procedural guidance for the states' planning processes. Review of the planning dimensions of participation and expertise reveals that major emphases on stakeholder participation and technical planning processes obscure the need for expertise in family preservation and family support.

Murky Waters: The Law and Economics of Salvaging Historic Shipwrecks

The salvage of historic shipwrecks involves a debate between salvors, who wish to maximize profit, and archeologists, who wish to preserve historical value. Traditionally, salvage of shipwrecks has been governed by admiralty law, but the Abandoned Shipwreck Act of 1987 transferred title of historically important wrecks in U.S. waters to the state in whose waters the wreck is found, thereby abrogating admiralty law. This paper examines incentives to locate and salvage historic wrecks under traditional admiralty law and proposes an efficient reward scheme. It then re-considers current U.S. and international law in light of the results.

Analysis of participation in the federally mandated coal workers' health surveillance program

The Federal Coal Mine Health and Safety Act of 1969 required that periodic chest radiographs be offered to underground coal miners to protect the miners from the development of Coal Workers' Pneumoconiosis (CWP) and progression of the disease to progressive massive fibrosis (PMF). These examinations are administered by the National Institute for Occupational Safety and Health (NIOSH) through the Coal Workers' Health Surveillance Program (CWHSP). The mine operator is required to provide each miner with the opportunity to have the chest radiograph at no cost to the miner.^ Three rounds of examinations have been conducted since 1969 and the fourth is underway. The decrease in participation over rounds is of great concern if the incidence and progression of CWP are to be understood and controlled.^ This study developed rates of participation for each of 558 West Virginia underground coal mines who submitted or had NIOSH assigned plans for making chest radiographs available during the third round, July 1978 through December 1980. These rates were analyzed in relation to desired levels of participation and to reinforcing, predisposing and enabling factors presumed to affect rates of participation in disease prevention and surveillance programs.^ Two reinforcing factors, size of mine and inclusion of the mine in the National Coal Study (NCS) epidemiology research program, and the enabling factor, use of an on-site radiograph facility, demonstrated highly significant relationships to participation rates.^ The major findings of the study were: (1) Participation in the CWHSP is even lower than previously estimated; (2) CWHSP program evaluation is not systematic and program data base is not complete and comprehensive; and (3) NIOSH program policy is not clear and administration of the CWHSP is fragmented and lacks adequate fiscal and personnel resources. ^

Impact of environmental regulations on lead concentrations in Texas ambient air and water: 1970--1990

In the last two decades, the significance of lead has been addressed in a number of environmental regulations at the national and state levels. This project investigated the environmental regulations (Clean Air Act and Amendments, 1970-1990 and Clean Water Act of 1977) and their cumulative effects on lead in ambient air and water in the state of Texas. For this purpose, historical records from the Texas Water Development Board, Texas Natural Resources Conservation Commission, and the United States Geological Survey have been assembled and analyzed for temporal and spatial trends. These trends might correspond to the phase out of lead in gasoline and other regulations.^ This study concluded that there is a significant correlation (p $\leq$.001) between environmental regulations of lead in gasoline and the concentration of lead in ambient air. Lead concentrations in ambient air have been reduced by over 90 percent in the past twenty years. An overall significant difference (p $\leq$.001) was found in mean (94, 15 respectively) lead concentrations in surface water between two time periods, one at the beginning of the twenty year period and one at the end of the study period. There has been an overall reduction of lead concentrations in surface water in Texas of approximately 84 percent. However, this reduction cannot be statistically associated with any one regulation. Groundwater data could not be analyzed for lead concentrations because of limitations of reporting data as "less than". Approximately two percent of the groundwater data was analyzed by Oneway ANOVA and no significant difference was found between the means (18, 19 respectively) of two time periods, 1977-1979 and 1988-1990. This data is consistent with the regulations having a contributory affect on declining concentrations, but other factors cannot be ruled out as having added to these declines. This study can also serve as a starting point for a more in-depth study of environmental regulations and their impact on the environment. ^

MEETING THE NEEDS OF HANDICAPPED CHILDREN: A STUDY OF EDUCATIONAL AND HEALTH CARE SERVICES PROVIDED TO PRE-KINDERGARTEN CHILDREN IN THE HOUSTON INDEPENDENT SCHOOL DISTRICT EARLY CHILDHOOD PROGRAM FOR THE HANDICAPPED (PARENT SATISFACTION, FUNCTIONAL STATUS, PSYCHOSOCIAL DEVELOPMENT)

The Education for All Handicapped Children Act of 1975, P.L. 94-142, created a new challenge for the nation's public school systems. During 1982-1983, a national study, called the "Collaborative Study of Children with Special Needs", was conducted in 5 metropolitan school districts to evaluate the effectiveness of education and health care services of children in kindergarten to 6th grade being provided under P.L. 94-142 programs. This dissertation (the Substudy) was undertaken to augment the findings of the Collaborative Study. The purpose of this study was to develop a database to provide descriptive information on the demographic, service and health characteristics of a small group of 3 and 4 year old handicapped children served by the Houston Independent School District (HISD) during 1982-1983.^ The study involved a stratified sample of 105 three and four year old children divided into 3 groups according to type of handicapping condition.^ The results of the study gave a clearer picture of the demographic characteristics of these Pre-K children. Specifically, sex ratio was approximately one, lower than the national norm. Family and socioeconomic characteristics were assessed.^ The study used an independence/dependence index composed of 11 items on the parent questionnaire to assess the level of functional independence of each child. An association was found between index scores and parent-reported effects of the child on family activity. Parents who said that their child's condition had affected the family's job situation, housing accomodations, vacation plans, marriage, choice of friends and social activities were also more likely to report less independence in the child. In addition, many of the Substudy children had extensive care-taking needs reflected in specific components of the index such as dressing, feeding, toileting or moving about the house.^ In general the results of the Pre-K Substudy indicate that at the early childhood level, the HISD special education program is functioning well in most areas and that parents are very satisfied with the program. (Abstract shortened with permission of author.)^

PROJECTION OF HEALTH DEMAND IN TERMS OF HOSPITAL ADMISSIONS FOR SELECTED DIAGNOSES IN HEALTH SYSTEMS AGENCY SERVICE AREAS

The National Health Planning and Resources Development Act of 1974 (Public Law 93-641) requires that health systems agencies (HSAs) plan for their health service areas by the use of existing data to the maximum extent practicable. Health planning is based on the identificaton of health needs; however, HSAs are, at present, identifying health needs in their service areas in some approximate terms. This lack of specificity has greatly reduced the effectiveness of health planning. The intent of this study is, therefore, to explore the feasibility of predicting community levels of hospitalized morbidity by diagnosis by the use of existing data so as to allow health planners to plan for the services associated with specific diagnoses.^ The specific objectives of this study are (a) to obtain by means of multiple regression analysis a prediction equation for hospital admission by diagnosis, i.e., select the variables that are related to demand for hospital admissions; (b) to examine how pertinent the variables selected are; and (c) to see if each equation obtained predicts well for health service areas.^ The existing data on hospital admissions by diagnosis are those collected from the National Hospital Discharge Surveys, and are available in a form aggregated to the nine census divisions. When the equations established with such data are applied to local health service areas for prediction, the application is subject to the criticism of the theory of ecological fallacy. Since HSAs have to rely on the availability of existing data, it is imperative to examine whether or not the theory of ecological fallacy holds true in this case.^ The results of the study show that the equations established are highly significant and the independent variables in the equations explain the variation in the demand for hospital admission well. The predictability of these equations is good when they are applied to areas at the same ecological level but become poor, predominantly due to ecological fallacy, when they are applied to health service areas.^ It is concluded that HSAs can not predict hospital admissions by diagnosis without primary data collection as discouraged by Public Law 93-641. ^