Reflections on the sociology of law: A rejection of law as 'socially marginal'

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locatc law as a critical matter of social structure - and power - which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the ernpifical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, 'the social', and the operation of law. It concludes that law is not 'socially marginal' but socially, totally central. (c) 2009 Elsevier Ltd. All rights reserved.

The trial: how procedure shapes substance

The rules and the principles of the common law are formed from the cases decided in courts of common law. The unique nature of the evolution of the common law has long been the subject of study. Less frequently studied has been the impact of procedure upon the development of substantive law. This paper examines how the procedures applicable to the trial of a case can affect the substance of the resulting decision. The focus of the examination is the decision in Bell v Lever Bros [1932] AC 161. While the case has long been regarded as a leading, albeit confusing, contract law case it is also greatly concerned with the conduct of litigation. This paper argues that the substantive decision was largely determined by the civil procedure available. Different rules of civil procedure, it is suggested, would have resulted in a better decision in the English law of contract.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Criminal procedure : Victoria & Commonwealth

This work is a clear and concise study of the principles underlying criminal procedure in Victoria and the Commonwealth jurisdictions. The book provides succinct extracts of leading cases and critiques the law. this content informs readers of the current law and how it can be reformed to deal more appropriately with the complexities and challenges of this area. The text includes a discussion of the recent reforms in Victoria.This book is for all readers with an interest in criminal procedure, including judicial officers,lawyers and students.

Is there a need to reform the corporate class action procedure in Australia?

This article argues for a need to reform the corporate class action procedure in Australia. The reason is that the statutory procedure for an “opt out” class action is beginning to appear more like an “opt in” class action. The confusion relates to the poor drafting of Part IVA of the Federal Court of Australia Act 1976, which contains the class action procedure. The involvement of a commercial litigation funder has also contributed to the complexity in the interpretation of the law. The article provides a review of why s 33J and s 33E are conceptually difficult to apply. It highlights the key areas that require legislative amendments in order for the class action procedure to operate more effectively.

Conceptualizing The Schmittian ‘Exception’ in the European Union: from the ‘Opt-Out’ Procedure(S) to indirect forms of secessionism

Too often, legal and sociopolitical scholars concerned with European policies anddecision-making procedures focus their efforts only on the official essence ofconventional opt-out forms of nonparticipation in the European integration process,such as those established in the Treaty of Lisbon. Yet, far from being just an internalmatter, the independentist instances which informed the Scottish referendum had asignificant impact on delicate issues of EU law, biopolitics, political anthropology,political theology, and foreign policy which deserve to be properly addressed. Thenecessity of conducting such an analysis is self-evident, and mainly related to thepossibility that the Scottish experience may be soon replicated, with different results,in the Italian regions of Venetia, Sardinia, and Lombardy, and in the Spanishcommunity of Catalonia. Delving into this dimension through Schmitt’s politicaldecisionism and adopting a comparative and interdisciplinary approach thattranscends the limits of pure positivistic and analytical lines of inquiry, this paperpresents a country’s choice to leave the EU or stop cooperating with it through thedirect opt-out mechanisms officially regulated in its Treaties, or through indirectforms of secessionism, in terms of an ‘exceptional’ act of sovereign will.

Current issues in merger law

This collection of global perspectives will be of great interest to scholars and students of competition law, microeconomics, and regulatory studies.     This collection of global perspectives will be of great interest to scholars and students of competition law, microeconomics, and regulatory studies.
The globalization of markets, combined with the extraordinary expansion of merger control laws over the past two decades, has resulted in an increasing number of mergers inviting multiple regulatory responses. This has had a significant impact on the complexity, time and cost associated with transnational mergers and has highlighted the differences in law, policy and procedure employed by more than 70 jurisdictions now adopting targeted merger regimes. By contrast with other areas of competition law and policy, the treatment of mergers involves a significant regulatory component, with most jurisdictions adopting ex ante notification and suspension obligations for mergers exceeding defined thresholds. The justification for this lies in the structural change to the market affected by the merging of assets, personnel and intellectual property, which are difficult to reverse. However, ex ante regulation also has the consequence of subjecting the vast majority of benign or beneficial mergers to the cost and delay associated with administrative scrutiny. This cost and delay has the potential to jeopardize time-sensitive transactions or postpone expected efficiency gains. Where markets extend beyond domestic borders, these costs are multiplied and the slowest and most prescriptive jurisdiction will influence or determine the time at which the merger can close, if at all, and on what conditions.                 

Social representations of law, justice and injustice: A study with Argentinean and Brazilian adolescents

This study aims to analyze the main social representations of law, justice and injustice preseneted by Argentinean and Brazilian youngsters. The Brazilian group consisted of 621 polled of three different regions-Floriano/PI, Erechim/RS, and Marilia/SP. From Argentina, 200 youngsters of Avellanedacity (Buenos Aires metropolitan region) participated. All the samples were proportionally divided according to the kind of school (public or private) and the school year attented (8(th) grade and 11(th) grade, considering the equivalent grade in Argentina). The data collection technique consisted of semi directed questionnaire composed by the free evocation of words technique. The procedure used to evaluate the results was the Analysis Correspondence Method (ANACOR). The results demonstrate important variations related to the youngster' nationality and they were discussed so that the preseneted representations were contextualized.

An experimental verification of newton's second law

We describe an experimental procedure to probe the validity of Newton's second law. The experimental arrangement allows us to accelerate a glider on an air track by means of forces that are both steady and known. We also show how to determine acceleration from average speeds calculated for successive time intervals of the motion measured by using several electronic counters connected to a single-crystal oscillator circuit. Within experimental errors, the experiments clearly show the proportionality between acceleration and force for a fixed mass and between acceleration and inverse of mass for a fixed force. © by the Sociedade Brasileira de Física.

A Law and Economics Analysis of Lobbying Regulation Towards an optimal structure through the Cost Indicator Index

This research primarily represents a contribution to the lobbying regulation research arena. It introduces an index which for the first time attempts to measure the direct compliance costs of lobbying regulation. The Cost Indicator Index (CII) offers a brand new platform for qualitative and quantitative assessment of adopted lobbying laws and proposals of those laws, both in the comparative and the sui generis dimension. The CII is not just the only new tool introduced in the last decade, but it is the only tool available for comparative assessments of the costs of lobbying regulations. Beside the qualitative contribution, the research introduces an additional theoretical framework for complementary qualitative analysis of the lobbying laws. The Ninefold theory allows a more structured assessment and classification of lobbying regulations, both by indication of benefits and costs. Lastly, this research introduces the Cost-Benefit Labels (CBL). These labels might improve an ex-ante lobbying regulation impact assessment procedure, primarily in the sui generis perspective. In its final part, the research focuses on four South East European countries (Slovenia, Serbia, Montenegro and Macedonia), and for the first time brings them into the discussion and calculates their CPI and CII scores. The special focus of the application was on Serbia, whose proposal on the Law on Lobbying has been extensively analysed in qualitative and quantitative terms, taking into consideration specific political and economic circumstances of the country. Although the obtained results are of an indicative nature, the CII will probably find its place within the academic and policymaking arena, and will hopefully contribute to a better understanding of lobbying regulations worldwide.

A pilot test of the new Swiss regulatory procedure for categorizing clinical trials by risk: A randomized controlled trial

BACKGROUND/AIMS Several countries are working to adapt clinical trial regulations to align the approval process to the level of risk for trial participants. The optimal framework to categorize clinical trials according to risk remains unclear, however. Switzerland is the first European country to adopt a risk-based categorization procedure in January 2014. We assessed how accurately and consistently clinical trials are categorized using two different approaches: an approach using criteria set forth in the new law (concept) or an intuitive approach (ad hoc). METHODS This was a randomized controlled trial with a method-comparison study nested in each arm. We used clinical trial protocols from eight Swiss ethics committees approved between 2010 and 2011. Protocols were randomly assigned to be categorized in one of three risk categories using the concept or the ad hoc approach. Each protocol was independently categorized by the trial's sponsor, a group of experts and the approving ethics committee. The primary outcome was the difference in categorization agreement between the expert group and sponsors across arms. Linear weighted kappa was used to quantify agreements, with the difference between kappas being the primary effect measure. RESULTS We included 142 of 231 protocols in the final analysis (concept = 78; ad hoc = 64). Raw agreement between the expert group and sponsors was 0.74 in the concept and 0.78 in the ad hoc arm. Chance-corrected agreement was higher in the ad hoc (kappa: 0.34 (95% confidence interval = 0.10-0.58)) than in the concept arm (0.27 (0.06-0.50)), but the difference was not significant (p = 0.67). LIMITATIONS The main limitation was the large number of protocols excluded from the analysis mostly because they did not fit with the clinical trial definition of the new law. CONCLUSION A structured risk categorization approach was not better than an ad hoc approach. Laws introducing risk-based approaches should provide guidelines, examples and templates to ensure correct application.