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Mike Koehler

This book begins by highlighting why a diverse group of professionals need skills to spot risk under the FCPA and related laws. The short answer is because risk is omnipresent for business organizations competing in the global marketplace. While all seem to acknowledge this, in the minds of some, compliance should be easy: “just don’t bribe.” However, this simplistic narrative is a fallacy because the overwhelming majority of business organizations subject to the FCPA and related laws compete in the global marketplace with a commitment to compliance, yet subject to unrealistic legal standards and/or difficult and complex business conditions that often serve as the root cause of scrutiny and enforcement. An examination of these root causes is not meant to excuse the conduct giving rise to an enforcement action, but rather to understand how and why the conduct occurred in the first place. Understanding the root causes of scrutiny and enforcement also serves an important compliance objective in that a key component of best practices is conducting a risk assessment (i.e. understanding unique points of contact with “foreign officials”) and prioritizing compliance to specific risks. This chapter next highlights that a diverse group of professionals also need skills to spot risk because scrutiny and enforcement can result in wide-ranging, negative financial consequences for business organizations. Obviously one reason to comply with the FCPA and related laws is because non-compliance can expose an organization to an actual enforcement action brought by law enforcement. However, settlement amounts in an actual enforcement action are often only a relatively minor component of the overall financial consequences that can result from scrutiny and enforcement. Discussion of these many other “ripples” is intended to shift the compliance conversation away from a purely legal issue to its more proper designation as a general business issue that needs to be on the radar screen of many professionals who can assist in risk management and who should view the importance of compliance more holistically and not merely through the narrow lens of actual enforcement actions.

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Joanne Barkan

“Death by a Thousand Cuts” surveys the controversial, market-driven, education reform movement in the United States: where it came from, how it operates, and what it has delivered so far. The historically strong commitment of Americans to public education has been under assault since the resurgence of laissez-faire economics in the 1980s and the decline of government commitment to racial integration. The neoliberal education strategy has included an ongoing campaign to convince Americans that public schools are failing, policies that transfer public resources to privately run schools, and financing political support at all levels of government for privatization. An investigation of two key policies—charter schools and publicly funded vouchers—reveals how they have resulted in academic failures, widespread corruption, and increased racial and economic segregation. Despite the radical conservative hold on power in the United States, grassroots efforts to preserve democratically controlled public education have produced some creditable local victories.

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Xiyin Tang

Intellectual property (IP) law and the art forms it is meant to protect are expanding. In our information age, artists hoping to assert their rights frequently assert a combination of trademark, copyright, and right of publicity or moral rights claims in order to maximize their chances of success. This chapter looks beyond IP law to some of its more unlikely complements – tort and property law – as a viable means of redress for artists who may be ineligible for copyright protection. Specifically, recent cases involving a specific form of hybrid art – land art, or ‘site specific art’ – have determinedly stripped artists of either their moral rights or copyright claims. Thus, I suggest looking to the laws of trespass and nuisance as new ways of thinking about the same problem: how do we balance public rights in our shared artworks with private rights of control? Surprisingly, this chapter suggests that applying nuisance law’s balancing test has much in common with the four-factor balancing test of copyright’s fair use doctrine. On a wider level, this chapter hopes to encourage the ongoing trend of creative ways of thinking about and asserting artistic rights when traditional copyright claims may not be feasible or successful.

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Edited by Steen Treumer and Mario Comba

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Clara Rauchegger

In its Solange III judgment, the Bundesverfassungsgericht, the German Federal Constitutional Court, attached a new condition to the primacy of EU law over German constitutional law. It turned the constitutional identity review that it had introduced in its Lisbon judgment into a safeguard mechanism for the protection of human dignity in individual cases. The chapter examines the advent of this new condition in Solange III and its application in subsequent case law of the Bundesverfassungsgericht.

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Barbara Schulte

The term ‘private school’ as used in the Chinese context denotes a wide variety of schools, reaching from schools for poor rural children, to those for migrant children with external residency, to schools for children from the middle and upper classes seeking an education beyond the ordinary. Even though Chinese education has not undergone any large-scale privatization, an increasing number of families opt for private educational alternatives. This chapter provides an overview of Chinese private schools: their development and current situation; their different types (low-, medium-, and high-fee); the motivations of entrepreneurs to establish private schools; and the rationales of families who opt for private schools in a system dominated by state-provided education. The conclusion discusses the implications of changing state-society-business interaction in education. The chapter is based on fieldwork conducted at private schools in the cities of Beijing and Kunming, and in Zhejiang province between 2010 and 2015.

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Marina Avelar

Large foundations in Brazil increasingly claim their main purpose is to influence education policy. To understand how this “advocacy" endeavour is being done, this chapter analyses the work of five new philanthropy organisations identified as central (highly connected and influential) in the country, using the method “network ethnography”. Four main strategies have been identified: producing research, working with the press, promoting events and operating in networks. These strategies are not necessarily new in policy-making, but are a novelty in how private organisations are intensely working to participate in the field of education. These practices together position new philanthropy as a “policy entrepreneur”, with the status of “specialists” and enable the creation and maintenance of invaluable relationships. Within the context of neoliberal shifts towards network governance, these practices allow new philanthropy to operate not as an “outsider" policy influencer, but indeed, as part of the policy-making process itself.

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Edited by Laura Hyatt and Stuart Allen

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Edited by S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao D. Phan

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Edited by Ross Dowling and David Newsome