The nature and rationale for European social rights

Over the last few years, the European Commission has repeatedly emphasized that, in the face of global uncertainty, the EU has to strengthen its social dimension and foster better working and living conditions for its citizens. To achieve this, the EU wants to strengthen social citizenship by advancing social rights, implementing the principles in the European Pillar of Social Rights at both the European and national level. The overarching objective of the EuSocialCit project, of which this paper is part, is to examine the state of EU social citizenship as well as possible policy scenarios that may strengthen it. This prompts initial foundational questions for the project: what is the nature of EU social citizenship and the social rights associated with it? And, what is the rationale for the EU to be involved in providing social rights? In order to understand the state and nature of EU social citizenship and the role that the EU plays in this now and in the future, we believe that it is necessary to ‘dissect’ the constitutive elements of social rights at the various levels (local, national and EU) at which they are provided. To this end, this paper develops a resource-based and multi-level conception of social rights. With regard to the rationale, we offer an overview of the main approaches that prevail in the long-standing debate on the justification and feasibility of a stronger EU social citizenship and present a synthesis of these approaches that may help further the debate

Contract Law Now — Reality Meets Legal Fictions

Modern contract law is designed to achieve a fundamental objective, namely, to ensure that voluntary agreements between private parties are legally binding. The appropriateness of this objective and the assumptions underlying it are rarely questioned. Legal scholars, practitioners, and policymakers alike presuppose that the binding nature of contracts is a desirable and positive feature of our legal system. But are the assumptions underlying the modern contract system sound? Do people behave in the way that contract law supposes? And are the concepts of voluntary, informed consent and freedom from state interference really the hallmarks of the modern contract system? This article explores and seeks to answer these questions. In so doing, it reveals an overlooked gap between theory and practice that calls into doubt the notion that contract law has anything to do with freedom and voluntary consent. Drawing on leading social science literature, this article seeks to make two contributions. First, the article shows that the assumptions underlying the modern contract law framework are flawed both theoretically and practically. Many contracts are not entered into voluntarily by rational actors, and the state regularly interferes. Imbalances of power, not freedom and consent, form the cornerstones of the modern system of contract law. Second, the article attempts to reveal the way contract law promotes and privileges these power imbalances. While the positions staked out in this article are admittedly foreign to conventional contract law theory, they are far from radical. Instead, they flow naturally from well-accepted social science insights, including the work of Legal Realists, Critical Legal Studies scholars, relational contract theorists, and, more recently, the field of behavioral law and economics. What is striking is not that the positions advanced here depart from conventional belief but that the lessons from leading social science research have had, to date, so little impact on contract doctrine. This article seeks to change that

Contract Law Now — Reality Meets Legal Fictions

Modern contract law is designed to achieve a fundamental objective, namely, to ensure that voluntary agreements between private parties are legally binding. The appropriateness of this objective and the assumptions underlying it are rarely questioned. Legal scholars, practitioners, and policymakers alike presuppose that the binding nature of contracts is a desirable and positive feature of our legal system. But are the assumptions underlying the modern contract system sound? Do people behave in the way that contract law supposes? And are the concepts of voluntary, informed consent and freedom from state interference really the hallmarks of the modern contract system? This article explores and seeks to answer these questions. In so doing, it reveals an overlooked gap between theory and practice that calls into doubt the notion that contract law has anything to do with freedom and voluntary consent. Drawing on leading social science literature, this article seeks to make two contributions. First, the article shows that the assumptions underlying the modern contract law framework are flawed both theoretically and practically. Many contracts are not entered into voluntarily by rational actors, and the state regularly interferes. Imbalances of power, not freedom and consent, form the cornerstones of the modern system of contract law. Second, the article attempts to reveal the way contract law promotes and privileges these power imbalances. While the positions staked out in this article are admittedly foreign to conventional contract law theory, they are far from radical. Instead, they flow naturally from well-accepted social science insights, including the work of Legal Realists, Critical Legal Studies scholars, relational contract theorists, and, more recently, the field of behavioral law and economics. What is striking is not that the positions advanced here depart from conventional belief but that the lessons from leading social science research have had, to date, so little impact on contract doctrine. This article seeks to change that

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes. In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away. The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes. In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away. The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions

The equipping inclusion studies : assistive technology use and outcomes in Victoria ; key findings and policy implications, study 1 - the equipment study, study 2 - the economic study

Approximately one in five of the Australian population lives with disability (AIHW 2006a; ABS 2003). Of these, almost 1.9 million rely on assistive technologies to live independently (Hobbs, Close, Downing, Reynolds &amp; Walker 2009).Assistive Technology (AT) is defined as,&lsquo;any device, system or design, whether acquired commercially or off the shelf, modified or customised, that allows an individual to perform a task that they would otherwise be unable to do, or increase the ease and safety with which a task can be performed&rsquo; (Independent Living Centres Australia n.d).&lsquo;Assistive Technology solutions&rsquo; have been defined as entailing a combination of devices (aids and equipment), environmental modifications (both in the home and outside of it), and personal care (paid and unpaid) (Assistive Technology Collaboration n.d).Despite a large number of Australians relying on AT, there is little data available about life for these Australians, the extent of AT use, or unmet need for AT. Existing research in Australia suggests that aids and equipment provision in Australia is &lsquo;fragmented&rsquo; across a plethora of government and non government programs (AIHW 2006a:35). In Victoria, one of the prime sources of government funding for AT is the Victorian Aids and Equipment Program (VAEP) which is a subsidy program for the purchase of aids and equipment, home and vehicle modifications for people with permanent or long term disability. Recent research suggests that waiting times for accessing equipment through the VAEP are high, as is the cost burden to applicants (Wilson, Wong &amp; Goodridge 2006). In addition, there appears to be a substantial level of unmet need (KPMG 2007).Additionally, there is a paucity of literature around the economic evaluation of AT interventions and solution packages, resulting in little evidence of their cost-effectiveness credentials.<br /

Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America

This article argues that the law of consumer contracts should permit adults to access the same protections available to children where data about adult performance indicates that the two categories of people are similarly situated within the domain of consumer contracts. In making this claim, this article relies upon a description of capacity articulated by Professor Martha Nussbaum in her important work on the subject. Professor Nussbaum explains that capacity is a function, not only of a person’s innate capabilities, but of a person’s opportunity or ability to deploy those capabilities within environmental limitations. Capacity to contract in a free society has demanded sufficient internal self-control to direct action and make decisions we would expect of a free person vested with a set of important personal rights. Nussbaum’s standard raises the possibility that even people with substantial internal capabilities may not have capacity if the environment in which they are seeking to express their capabilities negates them. This article argues that the law of consumer contracts is one such domain. It therefore argues that this domain should reassign risks between consumers and sellers in the consumer contracting market, where data about adult decision-making in the domain suggests that adults do not have the power to protect their contract rights through reasoned decision-making. It does so as a means of saving the very institution of contract law itself, which is a central mechanism for securing freedom of choice for Americans

Water centrality for water and society

The current approach to water management in Western societies, including Australia, is based on allocating water between different users. Appropriate for commercial uses, this commodity view of water has proved difficult for the inclusion of environmental and social concerns. Issues, such as which aspects have precedence, how much water should be allocated to each and how to make trade-offs in cases of insufficient water, pose problems that are yet to be worked out. In addition, there is a lack of knowledge regarding the identification of environmental as well as social water needs. The latter has prompted the writing of this thesis. A closer look at the neglected social water needs reveals the complete permeation of water into all areas of human life, from the basics of survival and health to the ethical and spiritual spheres. All these social aspects, or values, of water, should be integral to water management