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Laws, Volume 6, Issue 3 (September 2017)

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Research

Open AccessFeature PaperArticle Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in Australia
Laws 2017, 6(3), 8; doi:10.3390/laws6030008
Received: 17 May 2017 / Revised: 17 June 2017 / Accepted: 21 June 2017 / Published: 4 July 2017
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Abstract
This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a
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This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances. Full article
(This article belongs to the Special Issue Disability Human Rights Law) Printed Edition available
Open AccessFeature PaperArticle Drawing the Line: Disability, Genetic Intervention and Bioethics
Laws 2017, 6(3), 9; doi:10.3390/laws6030009
Received: 2 June 2017 / Revised: 9 July 2017 / Accepted: 10 July 2017 / Published: 17 July 2017
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Abstract
Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are
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Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology. Full article
(This article belongs to the Special Issue Disability Human Rights Law) Printed Edition available
Open AccessArticle Protection for Privacy under the United Nations Convention on the Rights of Persons with Disabilities
Laws 2017, 6(3), 10; doi:10.3390/laws6030010
Received: 20 June 2017 / Revised: 31 July 2017 / Accepted: 1 August 2017 / Published: 7 August 2017
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Abstract
Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of
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Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article’s place in current thinking about disability human rights. Full article
(This article belongs to the Special Issue Disability Human Rights Law) Printed Edition available
Open AccessArticle Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership
Laws 2017, 6(3), 11; doi:10.3390/laws6030011
Received: 1 May 2017 / Revised: 5 July 2017 / Accepted: 8 July 2017 / Published: 12 August 2017
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Abstract
The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US)
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The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements. Full article
Open AccessArticle Case Selection in the Russian Constitutional Court: The Role of Legal Assistants
Laws 2017, 6(3), 12; doi:10.3390/laws6030012
Received: 17 July 2017 / Revised: 31 July 2017 / Accepted: 8 August 2017 / Published: 15 August 2017
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Abstract
Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of
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Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of the Russian Constitutional Court in the case selection process. The Russian Constitutional Court receives about twenty thousand petitions annually. Nevertheless, only dozens of them are decided on their merits by judges. Through the description of the case movement process we show that the Secretariat does have at least moderate influence on case selection. Using data received from observation and interviews with the Court’s staff and judges, we find that legal assistants’ decision on whether to promote a case to judges is based on different logics of decision making. First, they are bound by legal requirements. However, bureaucratic logic and the logic of appropriateness can also influence the amount of incentives to promote cases to judges. Full article
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Open AccessFeature PaperArticle IP Things as Boundary Objects: The Case of the Copyright Work
Laws 2017, 6(3), 13; doi:10.3390/laws6030013
Received: 20 June 2017 / Revised: 31 July 2017 / Accepted: 7 August 2017 / Published: 16 August 2017
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Abstract
The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The
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The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright’s construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here. Full article
Open AccessArticle Human Trafficking and Study Abroad
Laws 2017, 6(3), 14; doi:10.3390/laws6030014
Received: 15 July 2017 / Revised: 8 August 2017 / Accepted: 14 August 2017 / Published: 18 August 2017
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Abstract
There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals
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There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals belonging to vulnerable populations are often targeted for this method of exploitation. Cultural competency, language barriers, and ignorance as to resources are all factors which contribute to the increased vulnerability of students studying abroad. An institution providing opportunities for international study should develop an effective approach to mitigate the risk of human trafficking through programs designed to enable students to protect themselves and others effectively. This paper comments on best practices for risk management, and explores different avenues and relevant law for increased transparency in study abroad risk. Full article
(This article belongs to the Special Issue Law and Higher Education)
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Open AccessArticle Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law
Laws 2017, 6(3), 15; doi:10.3390/laws6030015
Received: 31 May 2017 / Revised: 8 August 2017 / Accepted: 9 August 2017 / Published: 23 August 2017
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Abstract
Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is
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Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states. Full article
(This article belongs to the Special Issue Disability Human Rights Law) Printed Edition available
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