Law & Society: Legislation eJournal最新文献

{"title":"Interpretive Communities in International Law","authors":"M. Waibel","doi":"10.1093/acprof:oso/9780198725749.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198725749.003.0007","url":null,"abstract":"This chapter explores how the wide range of interpreters that populate international law, forming part of interpretive communities, affects interpretation in international law. To understand how interpretation in international law works in practice, we need to appreciate the role of interpretive communities in the interpretive process — an influence that is routinely overlooked. To look only at interpretive directions, such as the principles of interpretation found in the Vienna Convention on the Law of Treaties (VCLT), is insufficient. Any account of interpretation is incomplete without the sociological dimension of interpretive communities. The meaning of international law norms hinges on background principles shared by interpreters who form part of one or several interpretive communities. The focus is not on individual interpreters, but rather on the relationship among interpreters. Individual and group identity, the background and the shared understandings of interpreters are key ingredients in the interpretive process. This chapter first discusses the character of interpretive communities (Part I), before showing how practices and shared understandings within those interpretive communities shape interpretation (Part II). Part III contends that interpretive debates in international law are a contest between various actors over which normative vision of international law to advance in various issue areas.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122315783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Redemption of S. 76: Finding Meaning for Resale Price Maintenance in the Service Context after Visa-Mastercard","authors":"Dave Feldman","doi":"10.2139/ssrn.2502672","DOIUrl":"https://doi.org/10.2139/ssrn.2502672","url":null,"abstract":"This Article argues that the result in The Commissioner of Competition v. Visa Canada Corporation and MasterCard International Incorporated revealed a gap in the Competition Act’s price maintenance provision with respect to the meaning of a service and that of the resale of a service. It summarizes the history of price maintenance in Canada, reviews the economic logic that motivates Canadian competition policy towards resale price maintenance in the goods context, develops a working interpretation for services and the resale of services, and demonstrates that that interpretation is compatible with the policy concerns behind section 76.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"34 19","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120821350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Incumbency (Dis)Advantage When Citizens Can Propose","authors":"Enriqueta Aragonès, S. Sánchez-Pagés","doi":"10.2139/ssrn.2467451","DOIUrl":"https://doi.org/10.2139/ssrn.2467451","url":null,"abstract":"This paper analyses the problem that an incumbent faces during the legislature when deciding how to react to citizen proposals such as the outcome of referenda or popular initiatives. We argue that these proposals constitute a potential source of electoral disadvantage when citizens factor in their evaluation of the incumbent his reaction to these proposals. This is because an incumbent politician may jeopardize his re-election by implementing policies close to his preferred ones but unpopular among the electorate. We characterize conditions under which this potential disadvantage becomes in fact an electoral advantage for the incumbent. We fi nd that the choices of the incumbent during the legislature will be closest to citizens policy proposals when the intensity of electoral competition is neither too soft nor too tough. Finally, we use our results to discuss some implications of the use of mechanisms such as referenda and popular assemblies on electoral competition and on the incumbency advantage phenomenon.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"267 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120890723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Law and Economics Analysis of Lobbying Regulation - Towards an Optimal Structure Through the Cost Indicator Index","authors":"D. Krsmanović","doi":"10.6092/UNIBO/AMSDOTTORATO/6695","DOIUrl":"https://doi.org/10.6092/UNIBO/AMSDOTTORATO/6695","url":null,"abstract":"The dynamic regulation of lobbying worldwide requires fast comparative learning, while pressures for the reduction of public debts require responsible and efficient policymaking. The main intention of this research was to improve both comparative assessment and practical policymaking by offering a new tool for the assessment of lobbying regulations, both structurally and comparatively. 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. \u0000 \u0000Beside 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-antelobbying 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. \u0000 \u0000Although 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.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134293712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Wagner Act on Trial: The 1937 'Little Steel' Strike and the Limits of New Deal Reform","authors":"Ahmed A. White","doi":"10.2139/SSRN.2443447","DOIUrl":"https://doi.org/10.2139/SSRN.2443447","url":null,"abstract":"The National Labor Relations Act of 1935, or Wagner Act, played a crucial role in shaping the New Deal and eventually transforming the economic, political, and legal foundations of modern America. Although many aspects of the statute’s history, including its relationship to the rise of industrial unionism and the epic struggle to secure its constitutionality, have been well told by historians and legal scholars, key elements of its story remain obscured by misconceptions, oversight, and outright myth. Not least among these areas of uncertainty is how the new law actually functioned in the months and years immediately after the Supreme Court upheld its constitutionality, and what its fate in this crucial time says about the nature of the New Deal itself. This article undertakes to shed light on these questions by unfolding the history of one of the most important events in the Second New Deal period: the “Little Steel” Strike of 1937. Drawing on a host of sources, including five major archival collections, this article tells the story of this dramatic and violent episode, including its legal history. Presenting the strike as a key test of the Wagner Act and a critical bellwether of the New Deal, the article documents not only the virtues of new regime in labor rights just as it emerged from the shadow of unconstitutionality, but also congenital shortcomings in the labor law that have undermined workers’ rights ever since. In a further challenge to conventional narratives of the period, the story of the strike exposes the remarkable degree to which the power of the business community survived, relatively undiminished, the Wagner Act and the political changes that accompanied it. Moreover, giving credence to a broader literature on New Deal law and policy, the article presents the strike and litigation surrounding it as proof of the continuing weakness of the New Deal and as key moments in the conservative turn that marked course of reform in the late 1930s.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133309970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Government Advertising: Exploring International Best Practices on Regulating Partisan Publicity by Incumbent Governments","authors":"Sandeep Verma","doi":"10.2139/ssrn.2435870","DOIUrl":"https://doi.org/10.2139/ssrn.2435870","url":null,"abstract":"This short paper explores certain legal issues and international best practices on regulating partisan publicity by incumbent governments: an issue that attracted the attention of the Supreme Court in India recently and has led to the setting up of a committee to make recommendations to the Supreme Court. The paper also contains a basic outline of the choices and tensions — both legal as well as public policy-related — that may have to be necessarily addressed while evolving policy guidance on the subject in India: principles that could perhaps be applied to other developing and developed country situations as well.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133477631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Costs and Benefits of Mandatory Securities Regulation: Evidence from Market Reactions to the JOBS Act of 2012","authors":"Dhammika Dharmapala, Vikramaditya S. Khanna","doi":"10.2139/ssrn.2293167","DOIUrl":"https://doi.org/10.2139/ssrn.2293167","url":null,"abstract":"The effect of mandatory securities regulation on firm value has been a longstanding concern across law, economics and finance. In 2012, Congress enacted the Jumpstart Our Business Startups (“JOBS”) Act, relaxing disclosure and compliance obligations for a new category of firms known as “emerging growth companies” (EGCs) that satisfied certain criteria (such as having less than $1 billion of annual revenue). The JOBS Act’s definition of an EGC involved a limited degree of retroactivity, extending its application to firms that conducted initial public offerings (IPOs) between December 8, 2011 and April 5, 2012 (the day the bill became law). The December 8 cutoff date was publicly known prior to the JOBS bill’s key legislative events, notably those of March 15, 2012, when Senate consideration began and the Senate Majority Leader expressed strong support for the bill. We analyze market reactions for EGCs that conducted IPOs after the cutoff date, relative to a control group of otherwise similar firms that conducted IPOs in the months preceding the cutoff date. We find positive and statistically significant abnormal returns for EGCs around March 15, relative to the control firms. This suggests that the value to investors of the disclosure and compliance obligations relaxed under the JOBS Act is outweighed by the associated compliance costs. The baseline results imply a positive abnormal return of between 3% and 4%, and the implied increase in firm value is at least $20 million for an EGC with the median market value in our sample.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124670690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MRTP Commission and Competition Commission of India","authors":"L. Kumar","doi":"10.2139/SSRN.2429261","DOIUrl":"https://doi.org/10.2139/SSRN.2429261","url":null,"abstract":"A commission known as the Monopolies and Restrictive Trade Practices Commission was established under MRTP act, 1969. The MRTP Act, 1969 also provides for appointment of a Director General of Investigation and Registration for making investigations for the purpose of inquiries by the MRTP Commission and for maintenance of register of agreements relating to restrictive trade practices.Competition commission of India establish under Indian Competition Act, 2002. This administrative is more proactive than reactive for the administration of the competition policy. The CCI is working more effectively under the new Act. This paper is an attempt to examine the working of both the commissions.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128935713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prospects for Regulation of Off-Label Drug Promotion in an Era of Expanding Commercial Speech Protection","authors":"A. Kesselheim, M. Mello","doi":"10.7312/columbia/9780231171182.003.0014","DOIUrl":"https://doi.org/10.7312/columbia/9780231171182.003.0014","url":null,"abstract":"On December 3, 2012, the United States Court of Appeals for the Second Circuit handed the government yet another setback in its quest to stem the deleterious public health effects of aggressive pharmaceutical marketing. United States v. Caronia involved a First Amendment challenge to a pharmaceutical sales representatives’ criminal misdemeanor prosecution for promoting the narcolepsy drug Xyrem for multiple off-label uses by making oral statements about uses of the drug not approved by the Food and Drug Administration (\"FDA\") during sales calls to a physician’s office. On the basis of evidence about his statements presented at trial, the representative, Alfred Caronia, was convicted of conspiracy to introduce a misbranded drug into interstate commerce. In a 2-1 decision, the Second Circuit held that the government had prosecuted Caronia because he engaged in constitutionally protected commercial speech, in violation of his First Amendment rights. In this Article, we review the implications of the Caronia decision for the FDA’s ability to regulate off-label promotion and set it in the context of other major court decisions concerning the scope of First Amendment protection for commercial speech concerning pharmaceuticals. After summarizing the statutory and regulatory framework governing off-label promotional communications, we review relevant precedent and the Caronia decision. Considering both the Caronia case and other precedents, we then consider what avenues remain for FDA regulation of off-label promotion by pharmaceutical manufacturers. We discuss five potential strategies. The first three revolve around key technical issues arising from Caronia: ensuring that prosecutions are based on written rather than oral statements, emphasizing that speech is being used as evidence of intent, and focusing on the false or misleading nature of the promotional materials. The fourth involves a frontal challenge to the Second Circuit panel’s decision in Caronia — we suggest ways in which the government could make a stronger case that its regulatory framework for off-label promotion satisfies the criteria of the Central Hudson test. Finally, we consider alternative regulatory regimes for off-label promotion, such as limited approvals of off-label indications paired with limits on prescribing and accelerated supplemental FDA approval for promotion of unapproved uses. These options may be useful if the government has to intervene to prevent the substantial public health risks of unfettered off-label promotion that may emerge in a post-Caronia world.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"160 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120871476","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Mask of Virtue: Theories of Aretaic Legislation in a Public Choice Perspective","authors":"Donald J. Kochan","doi":"10.2139/SSRN.2261486","DOIUrl":"https://doi.org/10.2139/SSRN.2261486","url":null,"abstract":"This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation. As noble as virtuous behavior, virtuous laws, virtuous judging, or virtuous legislation may be, there is no reason to believe that any such theories, if employed and adopted as decision rules, would be any less susceptible to the debilitating realities of public choice and interest group behavior than other principles or metrics intended to guide lawmaking. We cannot expect interest groups to be virtuous in the ends sought or lawmaking to be virtuous in the commodities offered and produced. Legislators remain subject to interest group bargaining and will manipulate a virtue-based rule for private gains through masking techniques rather than advance the concept of virtue itself. While some legislation will be drafted to seem virtuous to the public on its outside, its interior will be filled with rent-seeking bounties.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132178344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}