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This chapter provides an account of Graeme Laurie’s research with a specific focus on his commitment to the shift from law on the page to law in action. It draws, in particular, on his work in relation to the role of the public interest in health research regulation. First, the chapter considers the significance of Graeme’s contributions on this topic in his monograph Genetic Privacy, before turning to how this has been operationalised through his work with the Scottish Informatics Programme (SHIP) and the Administrative Data Research Network (ADRN) Scotland. In considering Graeme’s legacy, the chapter outlines how he has both delivered new and innovative governance frameworks that are able to meet the challenges of health research in the twenty-first century and, at the same time, inspired a community of scholars to engage with the public interest, a previously neglected concept.
Unitization agreements require specialized professionals who can navigate the complex legal and scientific issues presented by each application. Robert Hardwicke described such an individual as a “lawgineer.” These professionals act as experts and mediators when parties disagree and require an objective party to resolve disputes. They assist in the determination of equity shares, resource conditions, technological solutions, and technical analysis. A similar field of professionals may emerge for similar work in aquifer unitization.
The suggested shift in policy perspective from groundwater to aquifers challenges the traditional approach to groundwater as a public resource issue. The legal issues involving aquifers are a complex combination of public rights and private property. Groundwater is traditionally a publicly held resource, yet the aquifer’s storage space appears to be considered private property. Although these resources are interconnected, courts have taken different approaches to addressing conflicts that involve indirect effects of groundwater extraction, like subsidence and subterranean trespass. Some states and courts treat pore spaces akin to a mineral right and protect private uses, like carbon sequestration. In other cases, courts have treated pore spaces as a public resource and refused claims of trespass and nuisance when adjacent aquifer uses interfered with private property rights. There is no clear consensus as to the ownership of aquifer pore spaces.
Chapter 7 examines the mindset of Newton Minow, the Federal Communications Commission (FCC) chairman who summed up the regulator’s view of television by calling it a “vast wasteland.” Minow championed public interest regulation of the broadcast medium based on the theory that the electromagnetic spectrum is scarce and that the government must allocate broadcast licenses and regulate the content of programming. But the spectrum is no more scarce than any other economic good, and the events that led to federal control over broadcasting were contrived to extend government control over the medium. Minow and other like-minded regulators deny that this type of control is censorship, but their efforts caused diminished diversity in programming and dampened innovation. Further, the tenets of broadcast regulation were undermined as new technologies emerged, although that fact did not deter Minow and other like-minded regulators from advocating more government control. Since then, the law and the culture have moved on, rendering the positions that Minow espoused obsolete.
The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry.
The contestation of global governance institutions can strengthen or weaken, as well as transform, them. This article analyses the productive potential of contestation and justification of global governance institutions by examining the multiple authorities that are invoked as auxiliaries in the process. It studies the (re-)construction of these authorities by dissecting authority into three components: power, legitimacy and connection to public interests. Empirically, the article focuses on the issue area of business and human rights, examining the highly contested process of drafting a binding instrument in the United Nations Treaty Process. The analysis shows that the success of the Treaty Process not only hinges on its direct reaction to contestation, but also on its ability to (re-)construct the multiple related authorities. Ultimately, the article argues that the contestation of global governance institutions involves (re-)constructing multiple authorities. This demonstrates how contestation can also affect global governance institutions, actors and norms beyond the specific field of deliberation.
This chapter provides an introduction to the concept of ‘the public interest’ in health research regulation (HRR). It considers two key ways that the public interest is constructed in HRR: namely as a legal device and through empirical evidence of the views of publics. To appreciate the scope of this concept, the public interest is set in its broader context, i.e. beyond HRR, highlighting that, historically, it has been a contested concept that is difficult to define in the abstract. Next, the public interest is situated within HRR, paying attention first to how it features in the HRR legal landscape and then how this is constructed through the views of publics (with specific reference to the use of identifiable health data for research). Both conceptualisations are analysed with reference to the key challenges and opportunities that they present before a holistic concept of the public interest in HRR is proposed and consideration given to how this may be operationalised in practice.
Privacy and public interest are reciprocal concepts, mutually implicated in each other’s protection. This chapter considers how viewing the concept of privacy through a public interest lens can reveal the limitations of the narrow conception of privacy currently inherent to much health research regulation (HRR). Moreover, it reveals how the public interest test, applied in that same regulation, might mitigate risks associated with a narrow conception of privacy. The central contention of this chapter is that viewing privacy through the lens of public interest allows the law to bring into focus more things of common interest than privacy law currently recognises. We are not the first to recognise that members of society share a common interest in both privacy and health research. Nor are we the first to suggest that public is not necessarily in opposition to private, with public interests capable of accommodating private and vice versa. What is novel about our argument is the suggestion that we might invoke public interest requirements in current HRR to protect group privacy interests that might otherwise remain out of sight.
Chapter 6 on ‘democratisation’ continues to examine how public banks can function in the public interest, if not without contradictions. Looking at the cases of Germany’s KfW and Costa Rica’s Banco Popular, the chapter argues that their ways of democratisation support their institutional credibility, and hence persistence. In distinct but meaningful ways, the KfW and Banco Popular enable their societies to have a meaningful say over how these public banks function. In contrast to decarbonisation and definancialisation, however, democratisation has a more disproportionately self-evident public interest effect. Yet it is not a completed act wherein these public banks are democratised once and for all. Democratisation, too, is pulled between contending public and private interests in class-divided society within global financialised capitalism.
This Chapter examines interim remedies. These allow courts to order remedies to protect rights from immediate and irreparable harm. Part I examines how international adjudicators have recognized the importance of interim relief in enforcing rights to life and health. Domestic courts have applied common law concepts such as the balance of convenience and higher standards for mandatory injunctions that may not be appropriate in the human rights context. Part II examines the irreparable harm standard and suggests that in some contexts, courts should engage in a closer review of the merits of the applicant’s case. Part III examines how proportionality principles can provide principles for decisions about the balance of convenience by calling attention to the legitimacy of the state’s objectives that justify limits on remedies, the tailoring of the remedy to accommodate competing rights and social interests and its overall balance. Part IV argues that interim relief, as an individual remedy, is related to the court’s ability to adjudicate a dispute and provide effective remedies and should not be deterred by potential remedial failure. Even breaches of interim remedies can be the focus of subsequent remedies and focus attention on the irreparable harm caused by some rights violations.
Léon Walras is often assumed, at least implicitly, to be a welfarist on the grounds that his work is generally considered to be the origin of the first social welfare theorems and therefore a forerunner of Pareto optimality. This chapter argues that such a view contradicts the basic foundations of Walras’s economic and social philosophy and especially his conceptions of society and of individuals. If we take seriously Walras’s distinction between “general social conditions” (“conditions sociales générales”) and “specific personal positions” (“positions personnelles particulières”), we can develop an alternative interpretation of his views on welfare, which leads in turn to a different, non-welfarist, conception of the Walrasian view of the state.
This chapter examines how foreign legal doctrine has affected constitutional judicial review in cases involving freedom of expression in Japan. Academics have studied free speech in the context of comparative law because the current constitutional law in Japan, enacted under the instruction of General Headquarters by United States, and the former Meiji Constitution were both influenced by the German Constitution. In the early years of the current Constitution, the Japanese Supreme Court took a ‘public interest’ approach, absent any constitutional standard. Some have proposed a change to this situation, recommending the introduction of a US-style constitutional standard. However, the Supreme Court has not taken that standard to heart. On the commencement of a new law school system in Japan, other scholars advocated the German ‘proportionality’ principle because they thought that it better suited to Japanese case law. However, detailed examination of that case law suggests that the Supreme Court took neither approach. In this chapter, the author seeks to reveal the true nature of the doctrine employed in the constitutional cases and to explore the issue of hate speech from the perspective of this controversy over free speech.
Insurance granted to foreign investors against political risks – or non-commercial risks – plays an important role in the promotion and protection of foreign investments and in host States’ economic development. Such insurance was first offered in the aftermath of the Second World War and decolonisation by national agencies; they have since then been granted by different types of entities operating at the international, regional and national levels. Taking the Multilateral Investment Guarantee Agency established by the 1985 Seoul Convention and the US agency the Overseas Private Investment Corporation as case studies, Chapter 9 focuses on and analyses insurance against political risks from two perspectives: (1) the protection that they afford to foreign investors and their investments against these risks; and (2) the protection of public interests against harmful investment projects and operations.
Defamation can have a long-term effect – a ‘propensity to percolate through underground channels and contaminate hidden springs’ of C’s reputation (per Slipper v BBC1). It is a technically difficult tort, in which the defences available to D assume equal, if not greater, prominence in the judgments as do the elements of the cause of action itself. As a common law tort, it is an ‘ancient construct’ (per Lachaux v Independent Print Ltd2). The Defamation Act 2013, which took effect on 1 January 2014, overruled aspects of the common law, but preserved other aspects, adding to the complexity of the tort. Wherever the publication complained of began in 2013 and continues into 2014, the court is now likely to have to consider the position both at common law and under statute (per Donovan v Gibbons3).
Aufderheide asks: can US public broadcasting provide a unique bulwark againstdisinformation? There are ample reasons to look to the public broadcasting service, at a timewhen commercial journalism’s business model has eroded and disinformation from US andother governments as well as from commercial sources abounds. The service was foundedwith a Progressive-era rhetoric of service to an informed public, and it has withstood relentlessattacks from neoconservatives, although not without casualties. Public broadcasting has twoof the most trusted media brands in the USA, NPR and PBS. Aufderheide shows how thestructure of public broadcasting both limits its ability to serve as a counter to disinformation,and, also in some ways protects it against attacks.
Large-scale investments in farmland can generate adverse effects on food security, minority groups, and the environment. Consequently, this Article analyzes to what extent international investment law has the potential to prevent those effects, considering the current investment treaty reform towards a symmetrical mechanism promoting sustainable development. First this Article presents the current substantive standard on expropriation of large-scale investments in farmland and the regulatory space left for host states. This Article then frames a potential public interest clause that would have the effect of granting due protection to investors and the right to regulate to host states, while not undermining the public interest and also preventing the adverse effects of these investments.
This paper argues that punitive, nominal, contemptuous, vindicatory, and disgorgement damages (commonly referred to as non-compensatory damages) can be collectively analysed as public interest damages because all these awards are justified by violations of public interests in addition to violations of the claimant's rights. To the extent they are awarded in the public interest, non-compensatory damages feature a distinctively public element in private law. In contrast to compensatory damages, public interest damages are justified by ‘non-correlative wrongdoing’, ie infringements of interests which are valuable to the community rather than to the claimant. This helps us to understand how public interest damages differ from traditional damages awards and why public interest damages should be treated as an exceptional remedy. In support of these claims, the paper offers an original analytic framework of reasons that justify damages awards.
Neither Contracting Party shall take any measures depriving, directly or indirectly, investors of the other Contracting Party of their investments unless the following conditions are complied with: (a) the measures are taken in the public interest and under due process of law; (b) the measures are not discriminatory or contrary to any undertaking which the former Contracting Party may have given; (c) the measures are accompanied by provision for the payment of just compensation. Such compensation shall represent the real value of the investments affected and shall, in order to be effective for the claimants, be paid and made transferable, without undue delay, to the country designated by the claimants concerned in any freely convertible currency accepted by the claimants.
According to Regulation 1049/2001, which creates the EU’s public access to documents regime, all EU documents should hypothetically be publicly accessible, except for those that fall within explicitly protected interests. A number of these exceptions to disclosure, however, function such that documents covered by them do not have to be disclosed if their release would harm a protected interest unless there is an “overriding public interest in disclosure” exists in the circumstances. The purpose of this Article is to offer a critical examination of this concept of the overriding public interest as interpreted by the Court of Justice of the European Union (CJEU). In the first part, the notion of the public interest generally is discussed from a theoretical perspective. Following this, a thorough analysis of case law concerning the overriding public interest is presented. Finally, this Article presents a critical commentary of the CJEU’s understanding of the concept. This Article essentially seeks to argue, inter alia, that the CJEU’s interpretation has resulted in democratically unaccountable bureaucrats of the EU effectively becoming the sole arbiters of the existence and content of the overriding public interest in disclosure under Regulation 1049/2001, a situation that is fundamentally unsatisfactory.
The chapter examines these standard form salvage contracts against the backdrop of sustainable development and whether they provide an appropriate balance between environmental protection and commercial outcomes in the narrow (the interests of salvors and property owners) and wider sense. It is shown that modern salvage operations involve at least two of the three recognised interdependent and mutually reinforcing pillars of sustainable development (economic development, social development and environmental protection). The chapter illustrates the challenges faced by salvors in commercial salvage operations as the ones tasked with the furthering of potentially divergent interests (environmental and commercial) and explores the linkages between salvage operations and sustainable development. It examines environmental provisions in the LOF and SCOPIC demonstrating that while these contracts provide a de facto furthering of environmental outcomes, this is incidental to the commercial interests of the contracting parties. The contracts provide no direct basis to promote the environmental protection interests of third-party stakeholders. The chapter argues that the use of the stipulatio alteri could provide such a direct legal basis to address external stakeholders’ interests in environmental protection while ensuring an integrated and sustainable balancing with economic endeavour.