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xvii | |
Introduction |
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1 Criminality at Work: A Framework for Discussion |
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3 | (32) |
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PART I CRIMINALITY AT WORK: MAPPING THE TERRAIN |
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2 Workplace Welfare and State Coercion |
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35 | (18) |
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35 | (4) |
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35 | (2) |
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2 Why a Social Democratic Perspective? |
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37 | (1) |
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3 Social Democratic Criminal Law |
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37 | (2) |
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B Workers with no Right to Work |
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39 | (4) |
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43 | (3) |
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1 The Health and Safety at Work Act 1974 |
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43 | (1) |
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43 | (1) |
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3 Never Safe Enough: The Case of Boxing |
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44 | (2) |
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D Pay---The National Living Wage and Minimum Wages |
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46 | (7) |
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1 Enforcing the Living and Minimum Wage |
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47 | (1) |
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2 Employers Evading Paying the National Living Wage: Two Devices, Zero Hours Contracts; Working as an Independent Contractor |
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48 | (1) |
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3 Employees Colluding with Employers to Evade the National Living Wage |
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49 | (2) |
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4 Is the National Living Wage High Enough? |
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51 | (2) |
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3 Using Criminal Law to Enforce Statutory Employment Rights |
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53 | (17) |
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53 | (1) |
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B Charting the Criminal Enforcement of Statutory Employment Rights |
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54 | (3) |
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C The Notion of `Public Wrongs' in Criminal Law Theory |
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57 | (11) |
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57 | (2) |
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2 Applying the Negative and Positive Versions of Public Wrongs Theory |
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59 | (3) |
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3 Public Wrongs Theory: Getting from the Positive to the Absolute |
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62 | (6) |
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68 | (2) |
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4 Where Criminal Law Meets Labour Law: The Effectiveness of Criminal Sanctions to Enforce Labour Rights |
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70 | (27) |
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70 | (1) |
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71 | (8) |
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1 Gangmasters and Labour Abuse Authority |
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72 | (2) |
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2 Employment Agencies and Employment Agency Standards Inspectorate (EASI) |
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74 | (1) |
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3 National Minimum Wage and the HMRC |
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75 | (2) |
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4 Working Time and the HSE |
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77 | (1) |
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5 Office of the Director of Labour Market Enforcement |
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78 | (1) |
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6 Preliminary Conclusions |
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79 | (1) |
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C Complexity of the Legal Response Created |
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79 | (4) |
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1 Strict Liability Offences |
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79 | (1) |
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2 Offences Requiring an Element of Mens Rea |
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80 | (1) |
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3 Breach of Order Offences |
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80 | (1) |
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4 Civil Liability Offences |
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81 | (1) |
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82 | (1) |
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D Why Have Some Acts of Non-compliance Been Criminalized? |
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83 | (5) |
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83 | (5) |
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E Effectiveness of Enforcement Action |
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88 | (4) |
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1 The Nature and Extent of Enforcement |
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88 | (4) |
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2 The Risk of Enforcement |
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92 | (1) |
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92 | (5) |
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PART II LABOUR WRONGS AS PUBLIC WRONGS |
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5 Exploitation at Work: Beyond a `Criminalization' or `Regulatory Alternatives' Dichotomy |
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97 | (19) |
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97 | (2) |
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B The Conceptual Framework |
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99 | (4) |
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1 Connections between `Exploitation' and `Work' |
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99 | (2) |
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2 What is Exploitation in Work Relations? |
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101 | (2) |
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3 What are the State's Obligations? |
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103 | (1) |
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C Limitations of Criminal Law Interventions |
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103 | (5) |
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1 `Internal' Limitations of Criminalization |
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104 | (2) |
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2 `External' Limitations of Criminalization |
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106 | (2) |
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D Criminalization and Regulatory Alternatives: A Key Juncture |
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108 | (2) |
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E Multidimensional Regulation: Further Principles and Constraints |
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110 | (5) |
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115 | (1) |
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6 The Duty of Loyalty and the Scope of the Law of Fraud |
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116 | (18) |
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A Criminalization as an Additional Deterrent for Civil Wrongs |
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116 | (3) |
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119 | (4) |
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1 False or Misleading Representation |
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119 | (1) |
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2 Fraud by Failure to Disclose Information |
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120 | (1) |
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3 Fraud by Abuse of Position |
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121 | (2) |
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123 | (2) |
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D Obligations of Disclosure in the Contract of Employment |
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125 | (4) |
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1 Mutual Trust and Confidence |
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126 | (1) |
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2 The Duty of Loyalty or Fidelity |
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127 | (2) |
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E Duties to Safeguard the Financial Interests of the Other Party |
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129 | (3) |
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132 | (2) |
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7 Wage Theft as a Legal Concept |
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134 | (17) |
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134 | (1) |
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134 | (1) |
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135 | (1) |
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D Is What the Employee Has Lost `Property' for the Purposes of the Theft Act 1968? |
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136 | (10) |
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146 | (5) |
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8 The Criminalization of Workplace Harassment and Abuse: An Over-Personalized Wrong? |
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151 | (22) |
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151 | (1) |
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B The Negative Effect of the Criminalization of Workplace Harassment in its Present Form |
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152 | (4) |
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C The Over-personalization of Workplace Harassment as a Criminal Offence |
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156 | (3) |
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D Reform Proposals and the Role of the Criminal Law |
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159 | (4) |
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1 Regulatory Activity at the International Labour Organization |
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159 | (2) |
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2 Regulatory Activity in the House of Commons Women and Equalities Committee |
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161 | (2) |
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E Justifying a Role for Criminalization in Harassment Wrongs: The Role of Human Dignity |
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163 | (8) |
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1 Employer Duties and the Criminal Law |
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164 | (3) |
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2 Dignity and the Relationship between Criminal and Civil Law |
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167 | (2) |
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3 Dignity and the Role of Consent |
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169 | (2) |
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F Conclusion: Bargaining in the Shadow of the (Criminal) Law |
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171 | (2) |
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9 Sex, Work, and Criminalization |
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173 | (19) |
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173 | (1) |
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B Conceptualizing Commercial Sex: From Sex Work to Modern Slavery |
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173 | (4) |
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174 | (1) |
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174 | (1) |
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3 Commercial Sexual Exploitation |
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175 | (1) |
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176 | (1) |
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C Commercial Sex as Labour: Three Philosophical Issues |
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177 | (4) |
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177 | (1) |
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2 Commercial Sex and Structural Inequalities |
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178 | (2) |
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3 Commercial Sex and Adaptive Preferences |
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180 | (1) |
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D Criminalization and Commercial Sex |
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181 | (9) |
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1 Criminalization and Commercial Sex: A Normative Account |
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182 | (2) |
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2 Criminalization and `Commercial-Sex-as-Work' |
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184 | (2) |
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3 Criminalization and `Commercial-Sex-as-Exploitation' |
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186 | (1) |
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4 Criminalization and `Commercial-Sex-as-Modern-Slavery' |
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187 | (1) |
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5 Criminalization and `Commercial-Sex-as-Varied' |
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188 | (2) |
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190 | (2) |
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10 The Work of Sex Work: Prostitution, Unfreedom, and Criminality at Work |
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192 | (18) |
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192 | (1) |
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B The Case for Decriminalization: Safety, Sex, and Work |
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193 | (5) |
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1 Safety and (De)criminalization |
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194 | (2) |
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2 Prostitution as Sex, Prostitution as Work |
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196 | (2) |
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C Prostitution as Work: Labour and Criminal Law |
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198 | (2) |
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D Capitalism, Unfreedom, and Criminal Law |
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200 | (6) |
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1 Exploitation and Alienation |
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200 | (3) |
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2 The Continuum of Unfreedom and Class Struggle |
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203 | (1) |
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3 History, Unfreedom, and Criminality at Work |
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204 | (2) |
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E Prostitution as Work and Criminality at Work |
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206 | (3) |
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F Conclusion: Prostitution as Work, Work and Freedom |
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209 | (1) |
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11 Human Rights, Labour Rights, and Criminal Wrongs |
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210 | (21) |
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210 | (1) |
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B Human Rights and Positive Duties |
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211 | (2) |
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C Criminalization of Breaches of Labour Rights |
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213 | (11) |
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1 Severe Labour Exploitation |
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214 | (3) |
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2 The Modern Slavery Act 2015 |
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217 | (1) |
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3 Collective Labour Rights and Blacklisting |
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218 | (6) |
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D Overcriminalization/Exclusive Focus on Criminalization |
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224 | (4) |
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228 | (3) |
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PART III THE CONTEMPORARY SHAPE OF CRIMINALIZATION PRACTICES: RISK, STATUS, AND CHARACTER IN THE NEOLIBERAL CRIMINAL LAW |
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12 The Preventive Role of the Criminal Law in Employment Relations |
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231 | (18) |
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231 | (1) |
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231 | (3) |
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C The Offence of Employing an Illegal Worker |
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234 | (6) |
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D The New Preventive Orders |
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240 | (7) |
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247 | (2) |
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13 Licensing of Employing Entities and Criminalization |
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249 | (18) |
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249 | (1) |
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250 | (1) |
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C Licensing and the Criminal Law |
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251 | (3) |
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D Licensing in Employment Settings |
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254 | (9) |
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1 Gangmasters and Labour Abuse Authority |
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255 | (2) |
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2 Employment Agencies and Businesses |
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257 | (3) |
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260 | (3) |
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E Licensing and the Criminal Law in Employment Settings |
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263 | (2) |
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265 | (2) |
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14 Criminalizing Care Workers: A Critique of Prosecution for Ill-treatment or Wilful Neglect |
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267 | (24) |
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267 | (2) |
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269 | (1) |
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270 | (3) |
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273 | (1) |
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E Care Worker Prosecution |
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274 | (5) |
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1 Ill-treatment and Wilful Neglect in the Courts |
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274 | (2) |
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2 In the Context of Social Care Work |
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276 | (1) |
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3 Erasing Employment Relations |
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277 | (2) |
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F Problems of Abuse in Care Settings |
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279 | (10) |
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1 The Organizational Dynamics of Abuse |
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282 | (2) |
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2 Training and the Regulation of Conduct |
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284 | (3) |
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3 The Making of Section 20 Criminal Justice and Courts Act 2015 |
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287 | (2) |
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289 | (2) |
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15 The Medical Professional as Special before the Criminal Law |
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291 | (18) |
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291 | (1) |
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B The Criminal Law and the Doctor's Exculpatory and Influential Professional Role |
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292 | (4) |
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C The Particular Criminal Liability that the Doctor's Professional Role Attracts |
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296 | (5) |
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D Arguments Supporting the Criminal Law's Special Treatment |
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301 | (3) |
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1 Providing Doctors with Special Protection from the Criminal Law is Appropriate Because of the Nature of their Professional Role |
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301 | (1) |
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2 The Special Attention of the Criminal Law is Required to Protect Patients Because of the Nature of the Doctor--Patient Relationship |
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302 | (1) |
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3 The Special Attention of the Criminal Law is Required to Address What are Perceived to be Both Private and Public Wrongs |
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302 | (2) |
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304 | (5) |
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16 Victim or Perpetrator? The Criminalization of Migration and the Idea of `Harm' in the Labour Market Context |
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309 | (18) |
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309 | (2) |
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B Regulating Immigration---Migration Control and Migration Status |
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311 | (5) |
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1 Immigration Law's Selectivity and Global Inequality of Migration Statuses |
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311 | (1) |
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2 The Exclusion of Refugees from Regular Migration Opportunities |
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312 | (2) |
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3 States' Generation of Illegality |
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314 | (1) |
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4 Immigration Law Enforcement |
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315 | (1) |
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C The Criminalization of Migration |
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316 | (8) |
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316 | (3) |
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2 Mala Prohibita? Immigration Regulations and Regulatory Crimes |
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319 | (3) |
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3 Wrongfulness---Defences for the Blameless---Refugees and Victims of Trafficking |
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322 | (2) |
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D Some Consequences of Criminalization |
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324 | (2) |
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1 Criminalization Begets Criminalization |
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324 | (1) |
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2 Criminalization Blocks Regularization |
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325 | (1) |
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326 | (1) |
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17 Doing the Dirty Job: Labour at the Intersections of Criminal Law and Immigration Controls |
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327 | (16) |
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327 | (2) |
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B Criminal Law as an Institution |
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329 | (2) |
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C Historicizing Criminalization: Labour Market, Sovereignty, and Criminal Law (Late Eighteenth Century to 1900s) |
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331 | (3) |
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D Labour Protection, Citizenship, and Criminalization (early 1900s until 1980s) |
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334 | (3) |
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E Neoliberalism, Labour Deregulation, and Criminalization (1980s to Present) |
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337 | (4) |
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341 | (2) |
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18 Modern Slavery, Domestic Work, and the Criminal Law |
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343 | (19) |
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343 | (1) |
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B Background to the Modern Slavery Act 2015 |
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343 | (1) |
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C Summary of the Legislation |
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344 | (6) |
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345 | (2) |
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2 Defence for Slavery or Trafficked Victims |
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347 | (1) |
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3 The Independent Anti-Slavery Commissioner |
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348 | (1) |
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4 The Modern Slavery Act: An Assessment |
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349 | (1) |
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350 | (4) |
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354 | (7) |
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1 Feminist Analysis of the Nature of Housework |
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355 | (3) |
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2 Modern Slavery and Domestic Abuse |
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358 | (2) |
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3 Slavery, Domestic Abuse, and Patriarchy |
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360 | (1) |
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361 | (1) |
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19 The Persistence of Criminal Law and Police in Collective Labour Relations |
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362 | (29) |
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362 | (2) |
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B The Late Eighteenth and Nineteenth Centuries up to the Conspiracy and Protection of Property Act 1875: The `Classical' Repression Phase |
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364 | (4) |
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C From Public Wrongs to Private Rights |
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368 | (3) |
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D The Continuing Presence of the Criminal Law |
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371 | (4) |
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E From Normal Law to Emergency Regulations |
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375 | (4) |
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F From Emergency to Reserve Powers: The Miners' Strike 1984--85 |
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379 | (4) |
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G Trade Unions in the Shadow of `Enemy' Criminal Law |
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383 | (3) |
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386 | (5) |
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PART IV CRIMINALIZATION AND ENFORCEMENT |
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20 Workplace Safety and Criminalization: A Double-edged Sword |
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391 | (18) |
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391 | (1) |
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B Criminalizing Safety I: Health and Safety Offences |
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392 | (3) |
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C Criminalizing Safety II: Corporate Manslaughter |
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395 | (4) |
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D The Corporate Manslaughter Offence in Practice |
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399 | (2) |
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E Criminalization and Context-dependency |
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401 | (2) |
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F Context-dependency in Practice |
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403 | (3) |
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G Conclusion: Criminalization and the Regulatory Project |
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406 | (3) |
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21 The Criminalization of Health and Safety at Work |
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409 | (22) |
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409 | (3) |
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B Health and Safety Law and Criminalization |
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412 | (5) |
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C The Health and Safety at Work etc Act 1974 |
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417 | (4) |
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D The New Direction of Recent Policy |
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421 | (4) |
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E The Working Time Directive and Regulations |
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425 | (4) |
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429 | (2) |
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22 Accessory Liability for National Minimum Wage Violations in the Fissured Workplace |
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431 | (24) |
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A Enforcement in Crisis: The Limits of Primary Liability |
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431 | (2) |
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B Enforcement Strategies in the `Fissured' Labour Market |
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433 | (7) |
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C The Structure of Criminal Accessory Liability |
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440 | (5) |
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D Broadening Liability: Lessons from Australia |
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445 | (4) |
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449 | (6) |
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PART V COMPARATIVE PERSPECTIVES ON CRIMINALIZATION |
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23 Class Crimes: Master and Servant Laws and Factories Acts in Industrializing Britain and (Ontario) Canada |
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455 | (19) |
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455 | (1) |
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B The Role and Function of the Criminal Law |
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456 | (2) |
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C Master and Servant Law: Disciplining Workers |
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458 | (6) |
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458 | (5) |
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463 | (1) |
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464 | (8) |
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464 | (5) |
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469 | (3) |
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472 | (2) |
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24 Criminalization, Social Exclusion, and Access to Employment |
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474 | (22) |
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474 | (1) |
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B Context, Background, and Themes |
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474 | (3) |
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C Use of Criminal Record Information in Employment Decisions |
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477 | (2) |
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D Formal Sources of Information on Criminal Backgrounds of Job Applicants |
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479 | (1) |
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E Policy and Areas Legislatures Carve Out to Support Certain Criminal Record Checks |
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479 | (2) |
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1 Protecting Vulnerable Groups |
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480 | (1) |
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481 | (1) |
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F Ex-offenders as Actors in the Labour Market and in Society |
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481 | (3) |
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G Employment and Recidivism |
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484 | (2) |
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H Employment and Social Inclusion and Exclusion |
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486 | (1) |
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I Legal Intervention to Assist the Vulnerable Job Seeker with a Criminal Record |
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487 | (4) |
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1 Spent Conviction or Clean Slate Legislation |
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488 | (1) |
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2 Anti-discrimination Legislation |
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488 | (1) |
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3 Other Legislative Protections |
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489 | (2) |
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J Adequacy of Legislative Intervention |
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491 | (1) |
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K Employment, Unfair Dismissal Legislation, and Criminal Behaviour |
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491 | (2) |
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L Impact of Informal Sources of Information about a Person's Conduct on Employment |
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493 | (2) |
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M Concluding Comments---The Need for Continuing Law Reform |
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495 | (1) |
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25 The Carceral State at Work: Exclusion, Coercion, and Subordinated Inclusion |
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496 | (20) |
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496 | (1) |
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B Subordinated Inclusion: Frameworks and Foils |
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497 | (3) |
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C The Carceral State and Labour Market Exclusion |
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500 | (3) |
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D Intermediate Steps: Prison Labour, Channelling, and Wage Penalties |
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503 | (2) |
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E The Carceral State and Labour Coercion Outside of Prison |
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505 | (3) |
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F From Double Binds to Subordinated Inclusion |
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508 | (5) |
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513 | (3) |
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26 Restorative Regulation of Criminality at Work in Canada: Workplace Safety, Penal Law, and Human Capability Enhancement |
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516 | (19) |
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516 | (1) |
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B Penal Law and Worker Protective Regulation: Labour Standards and Occupational Safety |
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517 | (7) |
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1 Statutory Labour Standards for Worker Protection |
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517 | (1) |
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2 Earlier Criminal Law Regimes and Workplace Safety |
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518 | (2) |
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3 The Westray Disaster: A Catalyst for Penal Reform of Workplace Regulation |
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520 | (1) |
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4 Workplace-related Reform of the Criminal Code |
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521 | (2) |
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5 Reform of Specific Occupational Health and Safety Regimes |
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523 | (1) |
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C Human Capability Development via Penal Sentencing and Restorative Workplace Approaches |
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524 | (9) |
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1 Sentencing, the General Part of Criminal Law, and Human Capacity |
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524 | (2) |
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2 Capabilities Approaches and Labour Market Regulation |
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526 | (2) |
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3 Sentencing Reform and Capability Enhancement |
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528 | (2) |
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4 Human Capabilities and Restorative Approaches to Workplace Safety Offences |
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530 | (3) |
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533 | (2) |
Index |
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535 | |