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Oliver Wendell Holmes was one of the most influential figures in American law. As a Supreme Court Justice, he wrote foundational opinions about such important constitutional issues as freedom of speech and the limits of state regulatory power. As a scholar and Massachusetts High Court judge, he helped to reshape the common law for the modern industrial era. And yet, despite the many accounts of his career, Holmes himself remains an enigma. This book is the first to explore the nineteenth-century New England influences so crucial to the formation of his character. Inspired by Ralph Waldo Emerson's transcendentalism, Holmes belonged to a group of men who formulated a philosophy known as American pragmatism that stood as an alternative to English empiricism and German rationalism. This innovative study places Holmes within the transcendentalist, pragmatist tradition and thereby unlocks his unique identity and contribution to American law. Wells' nuanced analysis will appeal to legal scholars, historians, philosophers, and general readers alike.
Work ability is a prospective predictor of sick leave, disability pension and unemployment, and has been defined as the balance between human resources and the demands of work, taking into consideration that illness is not equivalent to work disability. In the present study we set out to explore predictors of work ability in a sample of individuals with common mental disorders. In particular, we were interested in exploring metacognitive beliefs as a potential predictor of work ability, as Wells’ (2009) metacognitive model of psychological disorder suggests that metacognitions may be an underlying factor in psychological vulnerability generally, and they have been associated with work status in previous studies. One hundred and seventy-seven individuals participated in an online survey and completed a battery of self-report questionnaires. Several factors correlated with reduced work ability: physical disorders, emotional distress symptoms and metacognitive beliefs. We found that confidence in memory predicted work ability even when controlling for gender/age, number of physical disorders, and levels of anxiety and depression symptoms. This finding suggest that metacognitions of poor memory performance are associated with low work ability among those with common mental disorders, and implies that these should be targeted in treatment with a view to increasing work ability and thus potentially facilitate return to work.
The extant literature on Jewish Holocaust survivors’ experiences of receiving aged care services typically focuses on the risk that formal care settings may reactivate traumatic memories. Absent from previous research have been the viewpoints of older survivors themselves regarding their aged care experiences. An interpretive phenomenological approach was used to investigate Jewish Holocaust survivors’ lived experience of using community aged care services. Thirteen in-depth interviews were conducted and analysed using thematic analysis. The credibility of the findings was ensured by methodological triangulation and peer debriefing. Four major themes emerged from the analysis: wanting carers to do their job well; being supported to maintain autonomy; having a good relationship with the carer; and being understood as an individual. Although Holocaust survivors described the lived experience of using community aged care services in terms of universal themes similar to those identified with other groups of care recipients, the data revealed that this experience is intertwined with individual earlier-life traumatic experiences. This study has implications for training age care staff who work with Holocaust survivors and older trauma survivors from other refugee backgrounds.
The decade of the 1320s was among the more turbulent in English history. The increasing tensions of the 1310s culminated in the courtier revolt of 1321–2 against the Despensers, the four-year Despenser regime, Queen Isabella's coup of 1326, the four-year Mortimer regime and then the palace revolution of 1330. Many came to grief, although there were fewer executions and forfeitures in 1326 and 1330 than in 1322, but some individuals navigated between the various perils more successfully and among them was Sir Robert de Wateville. He played, or might have played, a pivotal role in the autumn of 1326 when Isabella's force landed and the Despenser regime collapsed. He has therefore been mentioned in accounts of that period that attempt to explain the swiftness and completeness of that collapse. These explanations generally focus on the lack of loyalty displayed by royal and magnate followers, and superficially Wateville's career appears to bear out these judgements.
A landless younger son of an Essex gentry family, in the 1310s he became a valued retainer of Bartholomew de Badlesmere and, as a consequence, was one of the Contrariants in 1321–2. After the execution of Badlesmere he became a bachelor of the younger Despenser, played a leading role in the Gascon ‘War of Saint-Sardos’ in 1324–5, and also became intimate with the king, gaining thereby a rich marriage to the widow Margaret Martin. In the autumn of 1326 he moved swiftly to join Isabella and spent his last four years as a peer of parliament enjoying considerable wealth. He ended his life full of years and honour but, it would seem, had twice turned his coat. A closer look at his life, and in particular his activities during the Despenser regime, helps to explain why. This paper will look first at his family background and earlier career before giving an account of his activities during the Despenser regime and then attempting an assessment of his behaviour.
Robert de Wateville and his brother Roger were, almost certainly, younger brothers of Sir John de Wateville of Panfield and Hempstead (Essex) who had succeeded his father, William, by 1302. They had a sister who had married the Suffolk knight Sir William de Criketot (d. 1310), but, as was so often the case at this level of society, there was no land to spare for younger sons.
In the late 1290s William Tuchet, although born into the lowest ranks of the Lincolnshire gentry, inherited an extensive Midlands estate and the king's favour which elevated him to the parliamentary peerage. He died in 1322, kicking on a gibbet at Pontefract, as a commoner and the king's enemy, with only a remnant of his former wide lands. His story is one of the failure of two types of lordship, that over land and that over men, and the two aspects are intimately linked. The gradual loss of his estate, an object lesson in the fragility of land title, led directly to his membership of the affinity of Thomas of Lancaster and thus to his death. This affinity famously failed to support its lord in 1322 and Tuchet's experience suggests at least one reason why this was so.
William was the eldest son and heir of Nicholas Tuchet (d. 1311) of Hainton (Lincolnshire), who belonged to the lesser ‘gentry’. Hainton was worth ￡15–20 a year and Nicholas claimed the minor manorial rights of a view of frankpledge and assize of ale. More importantly, William's mother Alice, who died before March 1298, was one of the two sisters of William of Louth (d. 1298), who was of obscure birth but became one of the great civil servants of the first half of Edward I's reign. He served as Cofferer of the Wardrobe from 1274 to 1280 and as keeper of the wardrobe from 1280 until 1290, when he was elected to the see of Ely. Louth acquired a great deal of land and, although he had another sister, Isabel, probably much younger and wife of the more eminent Midlands landholder Sir Roger de Mortain, Tuchet was his favoured heir and inherited more than three-quarters of the bishop's estate.
William was said to be aged thirty-six ‘or more’ in 1311, so he may have been around twenty-three in March 1298, when his uncle died. He was certainly then an adult but probably still young because he was not married.
Consumer law and policy generally envisages that consumer interests are best advanced by prohibiting abusive marketplace practices and promoting competition. This chapter proposes the framework be sophisticated for the provision of professional health services. Arguably, universal access to health services is a basic human right. Thus, the consumer interest is best understood within a human rights and a marketplace framework. These two frameworks do not always sit comfortably together, as illustrated in this chapter. The chapter explores the impacts of ASEAN’s market liberalisation strategies upon the delivery of professional health services. One strategy involves regional mutual recognition of health qualifications. This could enhance consumer interests by increased movement of medical practitioners to areas of regional need. Conversely, it could lead them to shift from low-income countries where universal access needs are acute to countries where practitioners receive higher incomes. The chapter concludes with an examination of how ‘health tourism’ is being promoted by some ASEAN members for economic benefit. However, these apparent benefits maybe somewhat illusory.
This chapter introduces the backdrop to the achievements and challenges experienced as ASEAN has intensified its program of harmonising minimum standards of consumer protection across Southeast Asia, especially over the last decade. A key factor outlined is economic integration both among ASEAN member states and with their wider regional and global economies. Yet diversity among member states (demographics, economic development, legal and political systems, NGOs and press freedom) can influence the timing and extent of consumer law reform and implementation in each country. The chapter ends with summaries of the scope and key lessons of the remaining substantive chapters (examining product safety regulation, consumer contracts, financial and health services, and interaction of consumer law with competition law) as well as the concluding chapter (adding proposals for enhancing more public-private ‘shared regional value’).
This chapter explores the themes of procedural and substantive fairness in regulating consumer contracts in ASEAN member states. Most member states have regimes that address conduct by traders that impinges upon consumers’ ability to make free and informed decision about the contracts they enter, with prohibitions on misrepresentation and undue pressure. The treatment of unfair contract terms is less even across the region. Equally, in many circumstances the law that exists ‘on the books’ is not backed up by regulatory oversight. Consumers often lack the recourses to pursue claims of unfair conduct or terms and so an active and responsive regulator is essential to the vitality and effectiveness of the consumer protection regime. Nonetheless, it does not seem overly optimistic to suggest a growing awareness of the relevance of consumer protection in a thriving market economy, including prohibitions on substantive unfairness, or the possibility of a more unified approach consistent with the ASEAN way.
This chapter draws together themes of the earlier chapters to how consumer protection law reform might be advanced in a manner consistent with the evolving 'ASEAN' way in order to effect real and postive change for consumers and markets. We focus on aspects of transgovermentalism and especially 'shared regional value' as a way of conceiving and advancing an operational mechanism among ASEAN member states that may lead to effective consumer protection regulation while retaining regional autonomy and diversity.
This chapter takes a regionalist perspective in exploring ways ASEAN can protect and advance consumer interests regarding consumer finance. Presently, ASEAN, as an organisation, is paying relatively little attention to the opportunities and challenges presented. The chapter explores some of the ‘traditional’ issues arising at the domestic level, including lenders: charging excessive interest rates; misleading and deceiving consumers; and harassing them or engaging in illegal activity when recovering loan repayments. Emerging issues include the rise of fintech. It offers new opportunities for financial inclusion, but also presents new challenges due to the rise of non-financial institution lenders, including those operating online platforms. Lack of proper regulation of these lenders risks regional financial instability and the exploitation of low-income consumers. Given the pace and complexity of change and the increasingly borderless nature of fintech, a regional approach could best assist with developing appropriate responses. The chapter proposes that enhanced shared knowledge and more effective networking amongst key players within ASEAN would advantage the region as a whole.
This chapter explores the interface between competition and consumer policies, law and institutions as it is emerging in ASEAN. It analyses the reasons for the traditional separation of these two fields, both generally and ASEAN in particular, and then explains the case for an integrated approach to policymaking and a coordinated approach to institutional design, pointing to international examples of such approaches. The chapter considers the evidence of integration and coordination in ASEAN to date, and considers reasons for the functionally silo-ed approach that has been exhibited in most member states thus far. It argues that increased recognition of the positive interdependencies between competition and consumer policies should be a key element of ASEAN’s future development, consistent with theories of networked governance, trading up and contextualised transplantation.
Consumer product safety law has become a core element of consumer protection law in almost all ASEAN member states. Reforms began by creating post-market intervention powers for consumer affairs regulators, allowing them to ban or recall goods found to be unsafe; and sometimes pre-market powers, to set minimum safety standards. Yet many general consumer affairs regulators still lack capacity and jurisdiction, especially for pre-market powers, limiting capacity to exercise even post-market regulatory powers and to engage in proliferating cross-border standard-setting networks. The Chapter also examines the relationship between regulators and NGOs, as well as with private litigants who may wish to turn instead to the court system to obtain relief for harm from unsafe goods. Five ASEAN states have enacted strict product liability legislation. Indeed, although inspired by 1985 European Union legislation, the versions in Southeast Asia generally are more pro-plaintiff in various ways. Yet there are almost no court filings. Appendices present two extended case studies: informal networks promoting food standards and safety, and formal agreements harmonising cosmetics regulation.