Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

"This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law."--Publisher website

Traffic behaviour and compliance with the law in low and middle income countries: are we observing "pragmatic driving"?

A common theme in many accounts of road safety and road use in low and middle income countries is a widespread lack of compliance with traffic laws and related legislation. A key element of the success of road crash prevention strategies in high income countries has been the achievement of safer road user behaviour through compliance with traffic laws. Deterrence-based approaches such as speed cameras and random breath testing, which rely on drivers making an assessment that they are likely to be caught if they offend, have been very effective in this regard. However, the long term success of (for example) drink driving legislation has been supported by drivers adopting a moral approach to compliance rather than relying solely on the intensity of police operations. For low and middle income countries such morally based compliance is important, since levels of police resourcing are typically much lower than in Western countries. In the absence of morally based compliance, it is arguable that the patterns of behaviours observed in low and middle income countries can be described as "pragmatic driving": compliance only when there is a high chance of being detected and fined, or where a crash might occur. The potential characteristics of pragmatic driving in the macro-, meso- and micro-context of driving and the enforcement approach that could address it are outlined, with reference to the limited existing information available.

Corporate governance and law reform in Japan: From the lost decade to the end of history?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

Collision-Geometry-Based Pulsed Guidance Law for Exoatmospheric Interception

No abstract is available.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Exploring university-community partnerships in arts-based service learning with Australian First Peoples and Arts Organizations

In this chapter we focus on the importance of partnerships in arts-based service learning with Australian First Peoples and community arts organizations. Drawing on six years of our own partnership and a wide body of literature, this chapter aims to act as a trigger for further reflection on ways to engage in meaningful partnerships with First Peoples and arts organizations. In particular, the continuum between transactional and transformational types of relationships provides a useful means for understanding our work and for positioning the various benefits and challenges associated with university-community partnerships more broadly.

Submission to Queensland Law Reform Commission WP 73 Review of Child Protection Mandatory Reporting Laws for the Early Childhood Education and Care Sector

In 2015 the QLRC is conducting an inquiry into whether to extend legislative mandatory reporting duties for physical abuse and sexual abuse to early childhood education and care practitioners. The current legislation does not require these practitioners to report suspected cases of significant harm from physical or sexual absue to child welfare agencies. Based on the literature, and a multidisciplinary analysis, our overall recommendation is that we endorse the extension to selected early childhood education and care practitioners of Queensland’s current mandatory reporting duty in the Child Protection Act 1999 s 13E.

The Politics of Adoption: International Perspectives on Law, Policy and Practice, Third edition

Adoption is a complex social phenomenon, intimately knitted into its family law framework and shaped by the pressures affecting the family in its local social context. It is a mirror reflecting the changes in our family life and the efforts of family law to address those changes. This has caused it to be variously defined in different societies in the same society, at different times and across a range of contemporary societies.

Models for engaging public-private partnerships in civil infrastructure projects: A case of ‘having your cake and eating it too’?

Public-Private Partnerships (PPP) are established globally as an important mode of procurement and the features of PPP, not least of which the transfer of risk, appeal to governments and particularly in the current economic climate. There are many other advantages of PPP that are claimed as outweighing the costs of PPP and affording Value for Money (VfM) relative to traditionally financed projects or non-PPP. That said, it is the case that we lack comparative whole-life empirical studies of VfM in PPP and non-PPP. Whilst we await this kind of study, the pace and trajectory of PPP seem set to continue and so in the meantime, the virtues of seeking to improve PPP appear incontrovertible. The decision about which projects, or parts of projects, to offer to the market as a PPP and the decision concerning the allocation or sharing risks as part of engagement of the PPP consortium are among the most fundamental decisions that determine whether PPP deliver VfM. The focus in the paper is on latter decision concerning governments’ attitudes towards risk and more specifically, the effect of this decision on the nature of the emergent PPP consortium, or PPP model, including its economic behavior and outcomes. This paper presents an exploration into the extent to which the seemingly incompatible alternatives of risk allocation and risk sharing, represented by the orthodox/conventional PPP model and the heterodox/alliance PPP model respectively, can be reconciled along with suggestions for new research directions to inform this reconciliation. In so doing, an important step is taken towards charting a path by which governments can harness the relative strengths of both kinds of PPP model.

Public-private partnerships in information and communication technology for education

Public-private partnerships (PPPs) have generated a lot of interest from governments around the world for leveraging private sector involvement in developing and sustaining public infrastructure and services. Initially, PPPs were favoured by transport, energy, and other large infrastructure-intensive sectors. More recently, the concept has been expanded to include social sectors such as education.

Fatigued driving : prevalence, risk factors and groups, and the law

Fatigue and sleepiness are major causes of road traffic accidents. However, precise data is often lacking because a validated and reliable device for detecting the level of sleepiness (cf. the breathalyzer for alcohol levels) does not exist, nor does criteria for the unambiguous detection of fatigue/sleepiness as a contributing factor in accident causation. Therefore, identification of risk factors and groups might not always be easy. Furthermore, it is extremely difficult to incorporate fatigue in operationalized terms into either traffic or criminal law. The main aims of this thesis were to estimate the prevalence of fatigue problems while driving among the Finnish driving population, to explore how VALT multidisciplinary investigation teams, Finnish police, and courts recognize (and prosecute) fatigue in traffic, to identify risk factors and groups, and finally to explore the application of the Finnish Road Traffic Act (RTA), which explicitly forbids driving while tired in Article 63. Several different sources of data were used: a computerized database and the original folders of multidisciplinary teams investigating fatal accidents (VALT), the driver records database (AKE), prosecutor and court decisions, a survey of young male military conscripts, and a survey of a representative sample of the Finnish active driving population. The results show that 8-15% of fatal accidents during 1991-2001 were fatigue related, that every fifth Finnish driver has fallen asleep while driving at some point during his/her driving career, and that the Finnish police and courts punish on average one driver per day on the basis of fatigued driving (based on the data from the years 2004-2005). The main finding regarding risk factors and risk groups is that during the summer months, especially in the afternoon, the risk of falling asleep while driving is increased. Furthermore, the results indicate that those with a higher risk of falling asleep while driving are men in general, but especially young male drivers including military conscripts and the elderly during the afternoon hours and the summer in particular; professional drivers breaking the rules about duty and rest hours; and drivers with a tendency to fall asleep easily. A time-of-day pattern of sleep-related incidents was repeatedly found. It was found that VALT teams can be considered relatively reliable when assessing the role of fatigue and sleepiness in accident causation; thus, similar experts might be valuable in the court process as expert witnesses when fatigue or sleepiness are suspected to have a role in an accident’s origins. However, the application of Article 63 of the RTA that forbids, among other things, fatigued driving will continue to be an issue that deserves further attention. This should be done in the context of a needed attitude change towards driving while in a state of extreme tiredness (e.g., after being awake for more than 24 hours), which produces performance deterioration comparable to illegal intoxication (BAC around 0.1%). Regarding the well-known interactive effect of increased sleepiness and even small alcohol levels, the relatively high proportion (up to 14.5%) of Finnish drivers owning and using a breathalyzer raises some concern. This concern exists because these drivers are obviously more focused on not breaking the “magic” line of 0.05% BAC than being concerned about driving impairment, which might be much worse than they realize because of the interactive effects of increased sleepiness and even low alcohol consumption. In conclusion, there is no doubt that fatigue and sleepiness problems while driving are common among the Finnish driving population. While we wait for the invention of reliable devices for fatigue/sleepiness detection, we should invest more effort in raising public awareness about the dangerousness of fatigued driving and educate drivers about how to recognize and deal with fatigue and sleepiness when they ultimately occur.