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Laws, Volume 7, Issue 2 (June 2018)

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Open AccessArticle A Right Not to Be Mapped? Augmented Reality, Real Property, and Zoning
Received: 20 April 2018 / Revised: 16 May 2018 / Accepted: 18 May 2018 / Published: 4 June 2018
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Abstract
The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pokémon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real
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The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pokémon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners’ claims would be most analogous to asserting “a right not to be mapped.” However, there is not yet a “right not to be mapped” in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality. Full article
Open AccessArticle Consumers’ Experiences of Mental Health Advance Statements
Received: 21 March 2018 / Revised: 18 May 2018 / Accepted: 25 May 2018 / Published: 28 May 2018
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Abstract
Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person’s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores
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Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person’s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores the current debates in the literature and presents the findings of a small qualitative study that explored the experiences of people who had completed advance statements in Victoria, Australia. Data was collected through interviews with participants and analysis of their advance statement. Participants completed their advance statements for two main reasons; to authorise future treatment or to limit the power of their treating team. Participants also included non-treatment preferences that were linked to their recovery and pragmatic considerations, such as contact details and dietary requirements. Participants who had used their advance statement reported a lack of acceptance or inclusion from clinicians. Further consideration of the legal enforceability of advance statements is necessary, and if they are to continue to lack legal force, much work remains to be done to support acceptance by clinicians. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
Open AccessArticle #MeToo? Legal Discourse and Everyday Responses to Sexual Violence
Received: 25 February 2018 / Revised: 26 April 2018 / Accepted: 16 May 2018 / Published: 21 May 2018
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Abstract
Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the “meanings, sources of authority, and cultural practices that are commonly recognized
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Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the “meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.” We use the idea of legality to argue that, in matters of sexual assault and rape, the limits of the law extend beyond the courtroom. Rather than simply influencing or guiding only those who are willing to consult the law in their efforts to seek justice, laws and legal discourse have the potential to frame and constrain any attempt to discuss experiences of sexual violence. #MeToo and other forms of “consciousness-raising” for sexual violence highlight the limiting effects of law and legal discourse on public discussion of sexual violence. We find that, paradoxically, in the case of sexual violence law has the capacity to undermine the goals and benefits of consciousness-raising approaches, privatizing the experience of sexual assault and silencing its victims. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
Open AccessArticle Judicialization and Its Effects: Experiments as a Way Forward
Received: 16 February 2018 / Revised: 1 May 2018 / Accepted: 16 May 2018 / Published: 18 May 2018
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Abstract
Law and courts play a larger role in American policymaking than in similar countries—and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer
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Law and courts play a larger role in American policymaking than in similar countries—and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied—and important—effects of judicialized policymaking. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
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Open AccessArticle All Their Eggs in One Basket? Ideological Congruence in Congress and the Bicameral Origins of Concentrated Delegation to the Bureaucracy
Received: 30 April 2018 / Revised: 30 April 2018 / Accepted: 9 May 2018 / Published: 12 May 2018
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Abstract
What drives congressional choices to concentrate implementation authority for legislative enactments among relatively few bureaucratic institutions? And are increased levels of concentration in implementation power associated with intercameral ideological proximity in Congress? I theorize that greater ideological congruity between the House and Senate
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What drives congressional choices to concentrate implementation authority for legislative enactments among relatively few bureaucratic institutions? And are increased levels of concentration in implementation power associated with intercameral ideological proximity in Congress? I theorize that greater ideological congruity between the House and Senate drives increased levels of concentration in delegated implementation authority to federal agencies. By examining every significant legislative enactment from 1947 to 2012 that delegates implementation responsibility to at least one federal agency, I consider the legislative dynamics of decisions regarding the range of institutions charged with policy implementation in the American administrative state. I find that increased concentration of implementation authority is associated with greater ideological congruence between pivotal members of the House and the Senate. These results suggest that the preferences of key officials in Congress contribute to defining the breadth of bureaucratic implementation authority in the federal policy process. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
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Open AccessReview Justiciability of the Right to Water in the SADC Region: A Critical Appraisal
Received: 16 February 2018 / Revised: 22 April 2018 / Accepted: 27 April 2018 / Published: 2 May 2018
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Abstract
Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter’s ability to meaningfully realize their development potential. The available literature on
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Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter’s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances. Full article
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Open AccessArticle Concerns about Genetic Discrimination after Regulation: A Qualitative Study of the Situation Regarding BRCA and Huntington’s Disease in Belgium
Received: 2 February 2018 / Revised: 14 April 2018 / Accepted: 20 April 2018 / Published: 26 April 2018
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Abstract
Although there is no unequivocal evidence of genetic discrimination (GD), and despite laws that prohibit it, individuals confronted with genetic diseases still seem to be concerned. The aim of this study was to gain in-depth understanding of experiences and concerns in relation to
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Although there is no unequivocal evidence of genetic discrimination (GD), and despite laws that prohibit it, individuals confronted with genetic diseases still seem to be concerned. The aim of this study was to gain in-depth understanding of experiences and concerns in relation to possible genetic discrimination. This article presents an analysis of semi-structured interviews with 42 individuals who had or were at risk of breast and ovarian cancer (BRCA) or Huntington’s disease (HD) in Belgium. Even after regulation, individuals at risk of BRCA and HD express concerns about possible genetic discrimination. These concerns relate to direct forms of GD, for instance those related to insurance and employment. Individuals were often unclear about and wary of legislation. Importantly, concerns were also expressed as to more subtle and indirect forms of GD, e.g., in social relations, where individuals fear being treated ‘differently’ and unfairly. Our study demonstrates how these concerns emerge at particular moments in life and how levels and forms of concern are influenced by the specific genetic disorder. Worries concerning these more subtle forms of genetic discrimination are more difficult to protect by law. Current legislative efforts do not appear to be effective in alleviating concerns about genetic discrimination. These regulations seem to be unclear, some participants are unsure about their effectiveness and they do not succeed in incorporating all forms of genetic discrimination. Particularly challenging is how to address indirect forms of genetic discrimination. Full article
(This article belongs to the Special Issue Genetic Discrimination and the Law)
Open AccessArticle Off to the Courts? Or the Agency? Public Attitudes on Bureaucratic and Legal Approaches to Policy Enforcement
Received: 16 February 2018 / Revised: 16 April 2018 / Accepted: 17 April 2018 / Published: 24 April 2018
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Abstract
A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways
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A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways focuses at the elite level—exploring how and why political actors and institutions opt for legal or administrative strategies for implementing different public policies—there is little research that examines public attitudes toward how policy is enforced in the U.S. Given that the public is a key partner in this process, this paper integrates public attitudes into the discussion, tapping into conceptions of “big government,” privatization, and the tort reform movement. Using original data from a series of vignette-based experiments included in the 2014 Cooperative Congressional Election Survey, we examine public preferences about how policy is regulated—by private citizens in the courts or by government officials in agencies—across a broad number of policy areas. We offer one of the first studies that adjudicates the boundaries of public attitudes on litigation and bureaucratic regulation in the U.S., offering implications for how elites might approach the design of policy implementation for different issue areas. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
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Open AccessFeature PaperArticle The Administrative Role of the Chief Justice: Law, Politics, and Procedure in the Roberts Court Era
Received: 15 February 2018 / Revised: 20 March 2018 / Accepted: 10 April 2018 / Published: 17 April 2018
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Abstract
The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court’s jurisprudence, relatively little attention has been devoted to the
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The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court’s jurisprudence, relatively little attention has been devoted to the unique administrative aspects of the position that allow for strategic influence over political and legal outcomes. This article examines the role of the chief justice as the head of the Judicial Conference, which is the primary policy making body for federal courts in the United States. Specifically, I examine the degree to which Chief Justice Roberts has appointed members to the Conference’s rulemaking committees with a long-standing conservative legal goal in mind: constricting access to courts. By focusing on the 2015 amendments to the Federal Rules of Civil Procedure in particular, I show that Chief Justice Roberts’ sole discretion to appoint members to these committees constitutes a “purely procedural” role through which he has exercised extensive political power, blurring the line between “law” and “politics” to great effect. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
Open AccessFeature PaperArticle Assessing Judicial Empowerment
Received: 16 February 2018 / Revised: 28 March 2018 / Accepted: 10 April 2018 / Published: 16 April 2018
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Abstract
Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a
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Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates. Full article
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
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Open AccessArticle Why Insurers Are Wrong about Adverse Selection
Received: 25 November 2017 / Revised: 22 February 2018 / Accepted: 11 April 2018 / Published: 15 April 2018
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Abstract
Insurers typically argue that regulatory limits on their ability to use genetic tests will induce ‘adverse selection’; they say that this has disadvantages not just for insurers, but also for society as a whole. I argue that, even on its own terms, this
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Insurers typically argue that regulatory limits on their ability to use genetic tests will induce ‘adverse selection’; they say that this has disadvantages not just for insurers, but also for society as a whole. I argue that, even on its own terms, this argument is often flawed. From the viewpoint of society as a whole, not all adverse selection is adverse. Limits on genetic discrimination that induce the right amount of adverse selection (but not too much adverse selection) can increase ‘loss coverage’, and so make insurance work better for society as a whole. Full article
(This article belongs to the Special Issue Genetic Discrimination and the Law)
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Open AccessArticle Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective
Received: 21 February 2018 / Revised: 19 March 2018 / Accepted: 20 March 2018 / Published: 24 March 2018
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Abstract
In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of
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In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of the patient and the care provider may conflict and can be a source of tension and challenge within mental health law. Through access to a mental health tribunal, patients are offered the apparatus to review and challenge their detention. With detention rates under the mental health legislation rising exponentially, this is having a knock-on effect upon tribunal application numbers. As there is a legal requirement to review all cases of individuals detained under the MHA 1983, understanding the key drivers for this increase in detention is essential in order to understand how to better manage both detention rates and the upsurge in tribunal caseloads. With the increase in overall activity, mental health tribunal workloads present significant practical challenges and has downstream cost implications. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
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