Добірка наукової літератури з теми "Privileged legal treatment"

The majority of legal systems in Western democracies accord special treatment to religions, e.g. exemptions from generally applicable laws if they conflict with religious convictions. Other beliefs do not usually enjoy such far‑reaching tolerance on the part of the state. The article raises the question of how granting such privilege to religious views can be justified. Arguments of some philosophers (e.g. Thomas Hobbes’) which suggest that an intolerant attitude might sometimes be disadvantageous are in fact only instrumental, and do not prove that tolerance is a moral virtue. This last claim only follows from the arguments of John Stuart Mill and John Rawls, who exemplify two basic approaches in ethics, i.e. utilitarianism and deontology. None of the analyzed arguments for freedom of conscience and religion distinguishes between religious and other beliefs, which suggests that the existing differences in their moral and legal treatment cannot be justified. Therefore, the question arises of whether legal regulations regarding religious and other beliefs should not be equated, so that religious views are not privileged.

Postmigrant conditions do not translate into easy access for migrants who arrive outside of the parameters of orderly migration. While European nations acknowledge the principle of asylum, massive efforts are made to prevent refugees from reaching the territory of the state where they could receive its protection. Even as their physical proximity to Europe increases, their legal proximity typically decreases. The novel Gehen, ging, gegangen (Go, Went, Gone) by German writer Jenny Erpenbeck depicts the experiences of non-privileged migrants whose tales of exile and displacement indicate that most of them will not be recognized as refugees. The play Die Schutzbefohlenen (Charges [The Supplicants]) by Austrian writer Elfriede Jelinek contrasts the treatment of asylum seekers with real-life cases of two ‘VIP foreigners’ who were granted naturalization by the Austrian government. Both texts convey a blunt message: The narratives of those who do (and those who do not) arrive in Europe’s ‘postmigrant societies’ without legal status confirm that the gap between privileged and non-privileged migration is almost impossible to bridge.

AbstractFor some thirty years or more, there have been calls in Germany for non-governmental organisations (NGOs) to be given legal standing to ensure correct application and enforcement of environmental law1. The German Advisory Council on the Environment (SRU) has long advocated such legal standing for NGOs2, emphasising in particular that the right to bring a representative action in no way constitutes privileged treatment of environmental interests. Rather, it redresses the inequalities of a legal system that places the interests of environment users above those of environment protection3. The representative action has to be seen as a much-needed form of legal standing for public interests that have up to now been unenforceable before the courts. The following article describes the practical experiences with legal standing for NGOs and the relevance of the judiciary, deals with the core elements of the Aarhus Convention, the Directives 2003/4/EC, 2003/35/FC and the proposal for a directive on access to justice in environmental matters and displays the respective comments and recommendations of the Council.

In the light of increasing misunderstanding between the medical and legal professions, this paper seeks, by means of comparative analysis to elucidate the central concerns of the law in regulating the provision of medical treatment and the doctor-patient relationship. The law in most jurisdictions seeks to ensure the full and consistent protection of the patient's rights. It will be seen that this goal requires that objective and judicially determined standards of care be imposed upon doctors. In relation to consent to medical treatment the primary value of individual autonomy implies that the informational needs of the particular patient must determine the legal standard of disclosure. In so far as English judges have privileged the medical profession, above all others, by unquestioningly ratifying its practices in relation to treatment and disclosure, they may be said to have abandoned their constitutionally mandated tasks of adjudication and the development of the law on an objective basis. This position is at odds with that in most other common law countries and is notably isolated within the context of the European Community.

Why do refugees exist – not as an empirical, but as a normative, category? What special sense of duty connects us to those people whom we call refugees, and how does this duty translate into asylum? What does the practice of asylum tell us about who we are, as individuals as well as members of political communities? How does one morally justify the special concern we feel for, and consequently the privileged treatment we give, refugees as compared with other foreigners in need? Revisiting the main features of the ethical debate over asylum and refugeehood, this article argues that the 1951 Refugee Convention provides a coherent framework to explain the ‘refugee privilege’. This contention is based on three features of the Convention, namely: its focus on admission and assimilation; its affirmation of the refugee as a privileged alien; and its emphasis, through the key concept of persecution, on the prohibition of discrimination and the identifying value of tolerance. However, one must acknowledge that a proper understanding of the moral duty to admit and integrate refugees does not suffice to explain contemporary state practice in dealing with the ‘refugee problem’ as a matter of solidarity. This article suggests that there are two additional asylum paradigms at work in today’s world: one takes disaster as a motivation for action, and rescue as the underpinning moral and legal imperative; and the other rests upon a duty not to return individuals to specific forms of danger, absent affinity or even compassion. The article examines some of the impacts which the co-existence of these three paradigms has on the global refugee regime, and their implications for law- and policy-making on asylum, both within and among states.

Purpose The purpose of this paper is to discuss whether altruism justifies ad hoc legislation with reference to three different contexts. One is defined by the libertarian notion of liberty; a second framework corresponds to the egalitarian vision; and a third one originates from social-contract theory. Design/methodology/approach The authors review two stylized visions of liberty, and consider to what extent the current legal systems comply with one of these visions. Moreover, the authors analyse the implications of the contractarian approach. Findings It is shown that current legislation is rather ambiguous and sometimes even contradictory. By and large, the common-law view tends to favour the libertarian approach, while the civil-law visions are closer to what one might expect from social-contract theory. In these cases, however, it seems that the letter of the law is often questioned by the academic community as well as by the judiciary, and decisions eventually follow the judges’ discretionary power. Originality/value This analysis of altruism combines the economic and legal perspectives. Although altruism is always considered an important part of social capital and worthy of privileged treatment, it is shown that policymaking is frequently inconsistent and sometimes contradictory.

The study of the first liberal Penal Codes (Spanish from 1822/1848/1850 and Portuguese from 1852) shows that the Spanish and the Portuguese woman share the same legal frame, but for a few differences. This frame preserves the feminine pattern of behaviour established by the Old Regime Courts, subject to man’s authority and to marriage as a guarantee of social and family order, but with a change: man’s honor resting upon the woman is honesty, not any longer privileged (married and honest) but imposed (home angel) and punished (dishonest woman). Between applying mercy or an exemplary treatment to a woman, liberal law chooses the last. Woman is not the plural category of the Old Regime any more, but the dual category angel/dishonest, which brings about her fragilitas. This leads to equality among women and approach to men in most offenses, but for the glaring inequality with regard to honor. An exception: the Portuguese wife, protected against procuring, has the right to take vengeance on his husband for her honor, whereas the Spanish wife does not have that right. Keywords: Spanish Penal Code 1822/1848/1850. Portuguese Penal Code 1852. Woman. Fragilitas. Honesty.

The mass application of modern medical biotechnology (BAF) and its expansion on a global level have brought numerous challenges at the individual and social level, and the very goal of reproductive technologies has exceeded the treatment of infertility. For LGBTIQ people, the use of BAF in the first place is a matter of reproductive justice that should provide everyone, without distinction, economic, social and political power and resources to make healthy decisions about their bodies, sexuality and reproduction for themselves, their families and their union. The reality, however, is that access to BAF is enjoyed by a small privileged group of people, and many medically infertile persons do not seek BAF because of the high cost of such treatment. As a result, the development of biomedical technology is increasingly becoming a subject of reconsideration and controversy, and less and less an achievement that supports life and health. In this paper, the author discusses when and why access to BAF became a matter of the LGBTIQ rights and whether access to BAF can really be equal for all, given its costs? Finally, the author refers to BAF in terms of domestic legislation and concludes the paper with a call for changes to the legal solution that prohibits the use of BAF for LGBTIQ individuals and couples in Serbia.

The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa – similar to the US – continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa – similar to the US – continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO
No Brasil o Estado é privilegiado quando litiga judicialmente, dispondo de vantagens não disponíveis para o cidadão. A pesquisa pretende contextualizar a fundamentação dos privilégios processuais da União, chamando a atenção para a sua emergência e permanência ao longo do tempo, buscando os modos de justificação do tratamento desigual observado na relação entre Estado e sociedade no processo judicial. Parte da sugestão inicial de que tais modos de justificação encontram portadores entre os operadores do direito e circulam socialmente porque cons ubstanciam tipos ideais de representação da soberania. Reconhece a desigualdade de tratamento conferido ao homem comum nas suas lides com o Estado e, sendo os operadores do direito o grupo que melhor conhece a existência desses privilégios, investiga os modos pelos quais essa desigualdade é justificada nesse grupo, bem como as percepções dissonantes, articulando os modos de justificação encontrados com concepções ideais distintas sobre o tema da soberania em circulação no Brasil.
The Brazilian state enjoys privileges in the judicia l process not available to ordinary citizens. This research contextualizes the foundation of the state s procedural privileges, highlighs their emergence and permanence and seeks forms of justification for such unequal treatment observed within the state-society relationship in the judicial process. This investigation begins with the initial proposal that legal professionals reproduce these forms of justification and that they are present in society because represent ideal types of sovereignty representation. Recognizing the inequality of treatment that the common citizen faces in struggles with the state, and because legal professionals comprise the segment most familiar with existence of these judicial process privileges, this research investigates the varieties of ways they justify such inequality. Lastly, it explores conflicting perceptions, connecting the forms of justification found with differing idealized notions of sovereignty in Brazil.

Le droit anglais ne connaît ni propriété publique ni service public, personnalité morale de droit public ou dualisme juridictionnel. À défaut, le droit anglais met en œuvre une "échelle" de publicisation des biens. Pour identifier les biens publics, cette étude s'appuie sur l'existence d'un droit public substantiel, qui n'a pas encore fait l'objet d'une reconnaissance formelle en droit anglais. Ce droit public substantiel doit être distingué du judicial review, qualifié par les juristes anglais d'administrative law, mais qui ne constitue qu'un droit public processuel. La substantialité du droit public anglais réside dans l'exorbitance diffuse de règles par rapport au droit commun, lequel comprend les règles de common law et d'equity, mais aussi les règles issues du corpus législatif. Grâce à ce régime exorbitant, nous identifions deux catégories de biens publics sur le fondement des critères organique et fonctionnel. D'abord, les biens sont publics sur le fondement du critère organique, en raison du caractère public de la qualité de leur propriétaire. En droit anglais, il existe, selon nous, deux catégories de propriétaires publics : la Couronne, propriétaire public par les privilèges dont elle bénéficie par la logique organique inhérente au souverain ; et, en raison de l'acception anglaise de la propriété, le public lui-même. Ensuite, les biens sont publics sur le fondement du critère fonctionnel en raison de l'intérêt public poursuivi par leur affectation. C'est le cas des entités ayant un objet charitable, ou bien encore des sociétés privatisées - étant précisé qu'en l'absence de personnalité morale de droit public, la privatisation ne peut être conçue dans son sens continental
Against the backdrop of French public law with its separate administrative and ordinary courts, French lawyers often assume that English law does not have a system of public law. This is inaccurate. This thesis aims to demonstrate the existence of a substantive public law in the English legal system. It does so by identifying a number of public assets. Substantive public law should be distinguished from judicial review, which is not substantive but procedural public law. The substance of English public law lies in a multitude of rules that deviate from the rest of the legal system. These rules are found not only in common law and equity, but also in statute and in delegated legislation. From the analysis of these derogative rules, it appears that public assets enjoy privileged legal treatment. This is triggered either by the "publicness" of the asset, such as the Crown or the public itself, or by the pursuit of the public interest, regardless of the public nature of the owner. My research reveals two sets of substantive public law rules applying to public assets. The first comprise adverse possession when applied to Crown lands and town or village greens. The second set encompasses charities, and assets owned by privatised services

Przedmiotem dysertacji jest analiza zagadnień związanych ze swobodą umów stron stosunku pracy przy kształtowaniu jego treści. Obecny kształt swobody umów stron stosunku pracy przy kształtowaniu jego treści powstał w zasadniczych zrębach w momencie wprowadzania Kodeksu pracy, w innych uwarunkowaniach ustrojowych, społecznych i gospodarczych. Zmiany, jakie dokonały się w tym czasie, mają charakter fundamentalny, co stwarza nową przestrzeń dla dyskusji o swobodzie umów w prawie pracy. W tej perspektywie sformułowano cztery główne pytania badawcze. Pierwsze pytanie dotyczyło ustalenia charakteru prawnego stosunku pracy i jego związku z prawem publicznym oraz prywatnym. Kolejne pytanie dotyczyło ustalenia normatywnych podstaw obowiązywania zasady swobody umów w indywidualnym prawie pracy oraz mechanizmu jej funkcjonowania. W następnej kolejności postawiono pytanie o zakres swobody umów w odniesieniu do poszczególnych elementów treści stosunku pracy. Wreszcie, czwarte pytanie dotyczyło ustalenia, czy zasada swobody umów powinna zostać uznana za kierunkową zasadę prawa pracy. Niezależnie od problemów badawczych, kompleksowa analiza swobody umów stron stosunku pracy przy kształtowaniu jego treści miała także na celu uporządkowanie materiału normatywnego dotyczącego tej problematyki. Przeprowadzona analiza doprowadziła do sformułowania następujących wniosków. Po pierwsze, jakkolwiek nie jest możliwe całościowe zakwalifikowanie prawa pracy wyłącznie do prawa publicznego bądź prywatnego, powyższy wniosek nie dotyczy stosunku pracy, który jest stosunkiem zobowiązaniowym (pomimo, iż zawiera elementy ingerencji publicznej). Po drugie, granice swobody umów przy kształtowaniu treści stosunku pracy częściowo określone zostały w sposób odmienny, niż w prawie cywilnym, chociaż z wykorzystaniem mechanizmów cywilistycznych. Swoboda, przysługuje stronom także w obszarze tzw. ochrony pracy, chociaż jest ona znacznie bardziej ograniczona. Po trzecie, pomimo iż podstawę obowiązywania swobody umów przy kształtowaniu treści stosunku pracy stanowi art. 3531 k.c. w związku z art. 300 k.p., zasada swobody umów w jej cywilistycznym wydaniu nie stanowi zasady kierunkowej w obszarze kształtowania treści stosunku pracy, w którym swoboda została przyznana w zakresie, jaki jest konieczny do efektywnej realizacji stosunku pracy lub nie zagraża równości stron stosunku pracy i godności pracownika i w którym obecna jest ingerencja państwa w zakresie, jaki jest uzasadniony ochroną równości stron stosunku pracy i godności pracownika. Dysertacja została podzielona na cztery części obejmujących osiem rozdziałów. W części pierwszej (Rozdziały I i II) przedstawiono proces historyczny, w trakcie którego doszło do wyodrębnienia prawa pracy jako samodzielnej gałęzi prawnej, zakres przedmiotowy pojęcia stosunek pracy oraz źródła kształtowania jego treści. Druga część pracy (Rozdział III) została poświęcona przedstawieniu zakresu swobody umów w zobowiązaniowym stosunku prawa cywilnego oraz ukazaniu tła aksjologicznego i normatywnego, uzasadniającego obowiązywanie zasady swobody umów. Zasadniczą treść dysertacji zawarto w trzeciej części (Rozdziały IV – VII), w której dokonano kompleksowej analizy norm prawnych dotyczących swobody umów. Rozważania teoretyczne zawarte w pierwszych trzech częściach pracy zostały w części czwartej (Rozdział VIII) wykorzystane do praktycznej analizy poszczególnych elementów treści stosunku pracy. Dopełnieniem pracy jest zakończenie, w którym zawarto syntetyczne podsumowanie i wnioski szczegółowe. W pracy posłużono się historyczną oraz formalno – dogmatyczną metodą badawczą, a ich wybór został podyktowany celami dysertacji.
The subject of the dissertation is the analysis of issues related to the freedom of contract of parties to an employment contract. The basic framework of the current scope of the freedom of contract of parties to an employment contract to shape its content was created when the Labor Code was introduced, in different political, social and economic conditions. There have been fundamental changes since then creating a new background for discussions on the freedom of contract in employment law. Therefore, four main research questions were formulated. The first question pertains to determination of the legal nature of an employment contract and its connections with public and private law. The second question concerns determination of the normative basis for the principle of freedom of contract in individual employment law and its functioning mechanism. Next, a question was raised about the scope of the freedom of contract in respect of particular elements of the employment relationship. Finally, a fourth question was posed to determine whether the principle of freedom of contract should be recognized as a guiding principle of employment law. Despite research problems, a comprehensive analysis was also aimed at organizing the normative material related to this problem. The analysis led to the following conclusions. Firstly, although it is not possible to generally classify employment law as exclusively private or public law, the same does not apply to the employment relationship, which is a contractual relationship (although it includes elements of public intervention). Secondly, the limitations of the freedom of contract in shaping the content of an employment relationship were partly determined differently than in civil law, although with the use of civil law mechanisms. The freedom of contract applies also in the area of so called employment protection. However, it is more limited in this area. Thirdly, although art. 3531 of the Civil Code in connection with art. 300 of the Labour Code constitutes the legal basis for the freedom of contract of parties to an employment relationship to shape its content, the principle of freedom of contract in its civil meaning does not constitute a guiding principle in the area of shaping the content of an employment relationship where freedom has been granted in the scope which is necessary to effectively realize an employment relationship or does not jeopardize the equality of the parties and employee’s dignity and where the public interference is present in the scope which is justified to protect the equality of the parties to an employment contract and employee’s dignity. The dissertation has been divided into four parts covering eight chapters. The first part (Chapters I and II) presents the historical process during which employment law was separated as an independent branch of law, the material scope of the concept of an employment relationship and the sources of shaping its content. The second part (Chapters III) presents the scope of the freedom of contract in contractual civil law relationships as well as the axiological and normative background justifying application of the principle of freedom of contract. The main content of dissertation is contained in third part (Chapters IV – VII), which provides a comprehensive analysis of the legal norms concerning the freedom of contract. The theoretical considerations contained in the first three parts of the work are used in the fourth part (Chapter VIII) to perform a practical analysis of particular elements of the content of an employment relationship. The dissertation ends with a synthetic summary. In the dissertation, a historical and formal-dogmatic method of research was used. Their choice was justified by the purposes of the dissertation.

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.

Gangs are a fact of life in jails and prisons. The extent and impact of gang activity on a facility will depend upon the size and geographic location of the facility. Smaller jails and prisons, or facilities in rural areas, are more likely to be involved with local or regional groups, also known as street gangs, while large facilities in urban areas will be affected more by nationally known or connected gangs. One survey of Florida prisoners found that inmates who were suspected or confirmed gang members were 35% more likely to commit violent acts than non-members. In a study of 2,158 male inmates in the Arizona Department of Corrections, gang-affiliated inmates were more than twice as likely as nonaffiliated inmates to commit an assault during the first three years of confinement Since institutional management often involves restriction of privileges, placement on long-term segregation, or transfer to a control unit prison, advocacy groups and individual inmates have filed suit against these policies based on First and Eighth Amendment, religious freedom, and anti-discrimination claims. Gang validation procedures themselves have been challenged as arbitrary and inaccurate, leading to inappropriate segregation or restrictions on prisoners who have exhibited no institutional violence. Psychiatrists need to be aware of the dynamics of gang leadership, membership or involvement when working with any gang member, as that will affect their ability and interest in collaborative treatment. These issues and best practices for intervention will be presented in this chapter.

Exemptions from legal requirements, especially religious exemptions, have been a major topic of political debate in recent years. Bakers in various states have sought the right to refuse to make wedding cakes for gay and lesbian couples, despite the Supreme Court’s validation of same-sex marriage. Many parents do not want to vaccinate their children, despite public health laws requiring otherwise, and several states grant exemptions. Various religious organizations as well as some corporations have sought an exemption from the requirement to provide contraceptive coverage in employee healthcare plans, as required by the Affordable Care Act (ACA). Religious exemptions have a long history in the United States, but they remain controversial. Exemptions release some people from following laws that everyone else must follow, raising questions of fairness, and exemptions often privilege religious belief, raising concerns about equal treatment. At the same time there are good reasons to support exemptions, such as respect for the right of religious freedom and preventing religious organizations from becoming too closely intertwined with government. The essays in this volume represent valuable contributions to the complex debate about exemptions from legal requirements. In particular, they contribute to the moral dimensions of religious exemptions. These essays go beyond legal analysis about which exemptions are constitutionally appropriate, instead asking when religious exemptions are morally required or morally prohibited.

Despite the privilege of German citizenship, Spätaussiedler experience difficulties in the German labor market. Unemployment tends to be high, and many of those who are employed fill positions in the secondary segment of the labor market. A problem for many Spätaussiedler is that their former occupations do not exist or are not in demand in Germany. Tractor operators, technicians in the oil industry, and coal miners from the former Soviet Union have difficulty finding employment in their fields, particularly in Berlin. Other Spätaussiedler still work in their general field, but below their original qualifications. Of these, many are denied work in their former occupations because their foreign occupational and educational credentials are not recognized by German authorities and employers. Government efforts to streamline the transferability of foreign credentials have concentrated on countries within the European Union (Schneider 1995); however, Spätaussiedler from the territory of the former Soviet Union do not benefit from these efforts. Although, as German citizens, they are legally entitled to credential assessment, exclusionary practices in the credential assessment and recognition process still make it difficult for Spätaussiedler to obtain work in the upper labor market segment. These immigrants fall victim to a double standard that values domestic and foreign credentials differently. The nonrecognition of foreign credentials as a mechanism of labor devaluation is not unusual in countries that receive large numbers of immigrants, as illustrated in chapter 5 in the case of immigrants in Vancouver. In Germany, Spätaussiedler present an interesting group because they enjoy citizenship rights and privileges unavailable to other immigrant groups. They receive full legal labor market access, economic integration assistance, the right to credential assessment, privileged treatment by labor market institutions, and, unlike foreigners and naturalized migrants, they are able to use their foreign qualifications to establish small businesses and offer vocational apprenticeships. In some instances, Spätaussiedler even receive preferential treatment relative to other Germans, for example, when applying for small business loans (Juris 2003, BFVG §14). In light of these privileges, labor devaluation through legal exclusion is apparently not an issue for Spätaussiedler.

Chapter 7 investigates the medical perception and treatment of homosexual offenders in Scotland in the period 1950−80, and, in particular, the role that medical evidence played in the prosecution and sentencing of such offenders in the Scottish High Court. Two main sources of evidence are explored. First, the verbal and written evidence of Scottish witnesses before the Wolfenden Committee (1954−57) is examined in order to identify how homosexual offenders were medically treated within the legal process in the 1950s. Secondly, with the benefit of privileged access granted by the Lord Justice General, a systematic analysis is undertaken of the medical reports on homosexual offenders submitted by psychiatrists and other doctors to Scottish High Court trials and appeals during the period 1950−80, and of their role in court proceedings. This throws important light on the degree to which medical views and practices pertaining to homosexual offenders in Scotland changed over the quarter century following Wolfenden and how far and in what ways they influenced the legal process.

This chapter focuses our attention on an unexplained puzzle: how parts of the developing world transitioned from a moment characterized by exclusion from healthcare access (“aristocratic healthcare”) to an altogether different moment characterized by “health universalism.” Grounded in a study of Thailand, Brazil, and South Africa, it highlights the surprising role played by elites from esteemed professions who, rationally speaking, aren’t in need of healthcare or medicine themselves and who would otherwise seem to have little to gain from such policies. The chapter points to the relative success of these “professional movements” in expanding access to healthcare and AIDS treatment in Thailand and Brazil and their relative failure in South Africa. And it draws attention to the importance of holding privileged positions in the state and legal expertise in the respective policy domains during moments of heightened political competition.

The chapter seeks to delineate the interaction of corporate insolvency law and resolution proceedings. In Europe, the legal framework provided by the Bank Recovery and Resolution Directive and even the Single Resolution Mechanisms remain incomplete, with national corporate insolvency law filling the gaps. This is perhaps most relevant for the ranking of creditors under national law. The chapter provides an overview of the corporate insolvency procedures that are available in the jurisdictions under consideration. These may function as either a self-standing resolution mechanism or as supplementary devices within the framework of resolution. Given the relevance for all insolvency procedures under consideration as well as for resolution, not least through the ‘no-creditor-worse-off’ principle, the chapter discusses the ranking of different classes of creditors as determined by the Directive and national law, as well as the privileged treatment of certain financial creditors.

Chapter 1 looks at legal cases relevant to some of the most important tenets of psychiatric practice - confidentiality and privilege. Both involve the protection, and limits to that protection, of information communicated during mental health treatment. Cases described here include In re Lifschutz, Doe v. Roe, Whalen v. Roe, In re Zuniga, State v. Andring, Commonwealth v. Kobrin, Menendez v. Superior Court and Jaffee v. Redmond.

Chapter 1 looks at legal cases relevant to some of the most important tenets of psychiatric practice—confidentiality and privilege. Both involve the protection, and limits to that protection, of information communicated during mental health treatment. Cases described here include In re Lifschutz, Doe v. Roe, Whalen v. Roe, In re Subpoena Served upon Zuniga, State v. Andring, Commonwealth v. Kobrin, Menendez v. Superior Court, and Jaffee v. Redmond.

Drug prescribing is a multifaceted and technically complex process requiring careful judgement of the competing risks of harm and benefits of treatment. Good prescribing requires knowledge of your patient’s illness, comorbidities, and concurrent treatments. When prescribing, a doctor must be aware of a drug’s potential for toxicity, its metabolic or excretory pathway, its interactions, its cautions and contraindications, and its legal status. Since the enactment of the UK Human Medicines Regulations 2012, prescribing of medicines may be undertaken by any suitably qualified doctor, dentist, and various other groups recently given prescribing privileges. All groups have a duty to prescribe medicines within their area of competence and scope of practice, as failure to prescribe medicines safely is responsible for a significant amount of reported serious medication incidents. This chapter will review the law concerning prescribing, the liability imposed on suppliers, consent issues, non-standard prescribing, and the legal status of non-allopathic medicines.

In the preceding chapter we spoke of the requirement for informed consent in absolute terms, as something that was an invariable component of medical decision making. Over the years, courts have come to recognize that there are a number of situations in which physicians are permitted to render treatment without patients’ informed consent. Even under the earlier simple consent requirement, consent to treatment was not required in all situations. There are different kinds of situations in which requiring disclosure and obtaining consent could be detrimental to the patient, such as in an emergency or when the disclosure itself would harm the patient, and therefore in these situations informed consent is not required. Patients may also waive, or give up, the right to be informed and/or to consent. Here the concern is not with promoting health values but with promoting autonomy. Informed consent may also be dispensed with in a fourth set of cases, those of legally required treatment, in which the harm from requiring informed consent is not necessarily to the patient (or the patient alone) but to other important societal interests (e.g., civil commitment of the dangerous mentally ill—see Chapter 11—or forced treatment of patients with infectious disease). In addition, informed consent requirements are modified when a patient is incompetent (see Chapter 5). Each of these exceptions contains the potential for undermining the values sought to be implemented by the informed consent doctrine: self-determination and informed decision making. Exceptions that are too broadly defined and applied are a threat to these values. On the other hand, these exceptions are an important vehicle for the interjection into the decisionmaking process of another set of values, society’s interest in promoting the health of individuals. When judiciously defined and applied, the exceptions accord health-related values their due. However, the exceptions can be, and sometimes have been, defined so broadly as to dilute, if not dissolve, the fundamental duties imposed by the doctrine and to undermine its essential purpose of assuring patient participation in medical decision making (1).

This chapter provides guidance on managing the ethical, regulatory, and legal issues that arise when a third party seeks to intervene in the psychotherapist–patient relationship. The chapter reviews the concepts of confidentiality and privilege. The author identifies types of third parties that may try to impinge on the psychotherapist–patient relationship, discusses ways in which third parties can enter the relationship, and identifies reasons for such impingement. A set of guidelines that psychotherapists can apply when confronted with an attempted or actual third-party penetration of the treatment relationship is offered. The following situations are covered: when a psychotherapist is mandated to involve a third party in the relationship (mandated reporting); when a patient authorizes a psychotherapist to involve a third party; when there is a legal demand for involvement in the relationship (subpoena or court order); and when the psychotherapist or client invite a third party into the relationship.

For a generation or two after 1776—perhaps longer—American nationality was not firmly established, nor was there a single “American” ethnicity. And the colonial legacy was broadly welcoming for European immigrants. So regardless of nationality, equality before the law became the policy of every state. But old ethnic and religious prejudices, reinforced by immigration from the British Isles, made equal treatment problematic. Irish immigrants, who stood out as Catholics and potential radicals, were targets of prejudice. But when they were tried for capital crimes like rape and murder, adherence to legal procedures—including talented defense counsel—blunted the effects of prejudice. Yet fear of Irish and other Atlantic immigrants led congressmen to debate the qualifications for naturalized citizenship. Representatives agreed new citizens must be white; but they argued over the length of their probation and whether they should pay for the privilege. In the Jefferson administration Congress settled on five years and minimal fees. Equal rights for white immigrants became the rule in law and largely in practice.