Suchergebnisse

The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that wrongs should not go unremedied, the question of how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions, the creation of new causes of action in tort, and the interpretation of statutory remedial powers. Whatever the merit of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.

In 1988, Israel changed its rape laws, inflicting harsher penalties on convicted rapists. Using quantitative and qualitative methods, this study compared punishment meted out before and after the reform and content analyzed the judicial discourse created in the courts in both periods. The findings revealed little change in the severity of sentencing and in judges' attitudes toward rapists, victims, and the crime. The mechanism of normalization allowed judicial authorities to make concessions to rapists, reducing the severity of the offense, while continuing to ignore the plight of the victims.

In institutional theory, it is a challenge to explain how rule-setting occurs in transnational contexts with high rule ambiguity and distributed agency. In this article, we address this problem by arguing that emergent and deliberate institutional strategies, though often treated as exclusive opposites, need to be considered in concert. This is demonstrated by analysing transnational law-making in the context of commercial and corporate law. Transnational law-making is thereby conceived as a process driven by the practical problem-solving and sense-making efforts of legal practitioners in large international law firms and international legal associations. Focal actors can exploit the results of this process to deliberately influence the development of law. A concept of two nested cycles of incidental and strategic law-making is employed to explain how dominant influences of common law become interwoven with influences from multiple other legal traditions that eventually trickle up. This article highlights the role of professionals as practice-based experts engaging in practical and political actions, the effects of which shape transnational rule-setting.