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Laws, Volume 10, Issue 2 (June 2021) – 33 articles

Cover Story (view full-size image): The Individuals with Disabilities Education Act is a federal special education law that guarantees eligible students with disabilities access to a free appropriate public education (FAPE). A few years after the enactment of the law in 1975, which was then titled the Education for All Handicapped Children Act, the United States Supreme Court issued a ruling in Board of Education v. Rowley (1982) which helped to clarify FAPE. In 2017, the High Court issued a second ruling on FAPE in Endrew v. Douglas County School District. These rulings have addressed FAPE requirements in terms of procedural and substantive obligations. In this paper, we will review these two seminal cases and offer recommendations on how these procedural and substantive FAPE requirements may be met when developing and implementing individualized educational programs for students with disabilities. View this paper
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Article
An Unintended Legacy: The External Policy Responses of the USA and European Union to Conflict Minerals in Africa
Laws 2021, 10(2), 50; https://doi.org/10.3390/laws10020050 - 17 Jun 2021
Cited by 1 | Viewed by 2774
Abstract
Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones, and jewellery import minerals from conflict-affected areas, thereby indirectly fuelling conflicts [...] Read more.
Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones, and jewellery import minerals from conflict-affected areas, thereby indirectly fuelling conflicts in these areas or undermining human rights. For a continent endowed with natural resources including minerals, Africa has suffered the brunt of this predicament. This state of affairs has lent impetus to the adoption of several regulations geared towards curbing irresponsible business practices by companies relying on such minerals, the goal being, amongst others, to guarantee the protection of human rights. In May 2017, the European Union adopted regulations intended to stop the importation of conflict minerals in Europe, debatably making giant strides in the direction of the protection of human rights. These regulations are to come into force in 2021. However, can these regulations advance the much-desired goal of the protection of human rights in Africa on issues pertaining to conflict minerals? By analyzing the 2017 EU regulations in light of previous regulations of a similar nature, the paper concludes that the said regulations constitute a weak normative framework and could in fact have unintended consequences on the fundamental rights of civilians in natural resource-rich conflict areas of Africa. Full article
(This article belongs to the Special Issue Business, Human Rights and Sustainable Development)
Article
Bodies in Confinement: Negotiating Queer, Gender Nonconforming, and Transwomen’s Gender and Sexuality behind Bars
Laws 2021, 10(2), 49; https://doi.org/10.3390/laws10020049 - 17 Jun 2021
Viewed by 2671
Abstract
The criminal punishment system plays a critical role in the production of race, gender, and sexuality in the United States. The regulation of marginalized women’s bodies—transwomen, butches, and lesbians—in confinement reproduces cis-heteronormativity. Echoing the paternalistic claims of protection that have inspired “bathroom bills,” [...] Read more.
The criminal punishment system plays a critical role in the production of race, gender, and sexuality in the United States. The regulation of marginalized women’s bodies—transwomen, butches, and lesbians—in confinement reproduces cis-heteronormativity. Echoing the paternalistic claims of protection that have inspired “bathroom bills,” gender-segregated prison facilities have notoriously condemned transwomen prisoners to men’s prisons for the “safety” of women’s prisons, constructing cisgender women as “at risk” of sexual assault and transgender women as “risky”, overlooking the reality of transwomen as the most at risk of experiencing sexual violence in prisons. Prisons use legal and medical constructions of gender that pathologize transgender identity in order to legitimize health concerns; for example, the mutilation of the body in an effort to remove unwanted genitalia as evidence to warrant a diagnosis of gender identity disorder, or later gender dysphoria. This construction of transgender identity as a medical condition that warrants treatment forces prisoners to pathologize their gender identity in order to access adequate gender-affirming care. By exploring the writings of queer and trans prisoners, we can glean how heteronormativity structures gender and sexuality behind bars and discover how trans prisoners work to assemble knowledge, support, and resources toward survival. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
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Article
Media and Responsibility for Their Effects: Instrumental vs. Environmental Views
Laws 2021, 10(2), 48; https://doi.org/10.3390/laws10020048 - 11 Jun 2021
Cited by 1 | Viewed by 2771
Abstract
From the perspective of media ecology, this paper explores the question of responsibility for the effects that media have on society. To explain these media effects, two approaches are singled out. (1) The instrumental approach assumes that a medium works as a tool [...] Read more.
From the perspective of media ecology, this paper explores the question of responsibility for the effects that media have on society. To explain these media effects, two approaches are singled out. (1) The instrumental approach assumes that a medium works as a tool used by a user for a purpose. (2) The environmental approach focuses on the capacity of a medium to become an environmental force that reshapes both the habitat and the inhabitants. The instrumental approach to media, when taken too broadly and without an understanding of its limits, leads to conspiracy theories and inadequate social and political assessments. The more advanced and sophisticated environmental approach allows for an adequate understanding of media evolution and its effects but does not comply with the traditional legal notions of guilt and responsibility for actions, as there is no jurisdictional human or institutional agency when environmental forces are in play. After charting the distinction between the instrumental and environmental views of media, the paper focused on how the instrumental effects of media turn into environmental effects. The purpose of the paper is to develop and offer a media ecological apparatus for possible further juridical discussions regarding the regulation of the networking society. Full article
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Article
The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom
Laws 2021, 10(2), 47; https://doi.org/10.3390/laws10020047 - 07 Jun 2021
Viewed by 3158
Abstract
This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of [...] Read more.
This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith. Full article
Editorial
Laws and Emerging Technologies
Laws 2021, 10(2), 46; https://doi.org/10.3390/laws10020046 - 07 Jun 2021
Viewed by 2629
Abstract
New technologies and so-called communication and information technologies are transforming our society, the way in which we relate to each other, and the way we understand the world. By a wider extension, they are also influencing the world of law. That is why [...] Read more.
New technologies and so-called communication and information technologies are transforming our society, the way in which we relate to each other, and the way we understand the world. By a wider extension, they are also influencing the world of law. That is why technologies will have a huge impact on society in the coming years and will bring new challenges and legal challenges to the legal sector worldwide. On the other hand, the new communications era also brings many new legal issues such as those derived from e-commerce and payment services, intellectual property, or the problems derived from the use of new technologies by young people. This will undoubtedly affect the development, evolution, and understanding of law. This Special Issue has become this window into the new challenges of law in relation to new technologies. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
Article
Making Sense of Indigenous ⬄ Colonial Encounters: New Zealand’s Treaty of Waitangi in a Digital Age
Laws 2021, 10(2), 45; https://doi.org/10.3390/laws10020045 - 04 Jun 2021
Cited by 1 | Viewed by 2794
Abstract
This article explores how we interpret, write history, and make sense in a digital age. The study takes place at the intersection of three disciplines: Media and Communication Studies, Postcolonial Theory, and Law. This exploration is conducted in and through an examination of [...] Read more.
This article explores how we interpret, write history, and make sense in a digital age. The study takes place at the intersection of three disciplines: Media and Communication Studies, Postcolonial Theory, and Law. This exploration is conducted in and through an examination of attempts to make sense of “official,” “legal” documents” that emerged out of indigenous ⬄ colonial encounters during the 19th century in New Zealand. Subsequently, this paper focuses on McKenzie’s seminal study of the New Zealand’s Treaty of Waitangi/Te Tiriti o Waitangi, and Jones and Hoskins’ study of The Second New Zealand Land Deed. These two studies are then interfaced with and considered in light of a recent governmental review of New Zealand’s ICT sector, infrastructure and markets. Here, the focus is on Regulating communications for the future: Review of the Telecommunications Act 2001, and the Telecommunications (New Regulatory Framework) Amendment Bill. This article finds that in a digital age—a world of deep fakes and total manipulability of mediated or recorded space—the hermeneut is required to enter and negotiate a (constrained) creative relationship: as an artisan, architect, or artist, with an interpretative context and/or medium. Full article
Article
The Implications of the COVID-19 Pandemic on Religious Exercise: Preliminary Remarks
Laws 2021, 10(2), 44; https://doi.org/10.3390/laws10020044 - 02 Jun 2021
Viewed by 2979
Abstract
Since 2020, the spread of COVID-19 has had an overwhelming impact not only on our personal lives, but also on domestic regulatory frameworks. Influential academics have strongly underlined that, in times of deep crisis, such as the current global health crisis, the long-term [...] Read more.
Since 2020, the spread of COVID-19 has had an overwhelming impact not only on our personal lives, but also on domestic regulatory frameworks. Influential academics have strongly underlined that, in times of deep crisis, such as the current global health crisis, the long-term workability of legal systems is put to a severe test. In this period, in fact, the protection of health has been given priority, as a precondition that is orientating many current legal choices. Such an unprecedented health emergency has also raised a serious challenge in terms of fundamental rights and liberties. Several basic rights that normally enjoy robust protection under constitutional, supranational, and international guarantees, have experienced a devastating “suspension” for the sake of public health and safety, thus giving rise to a vigorous debate concerning whether and to what extent the pandemic emergency justifies limitations on fundamental rights. The present paper introduces the Special Issue on “The crisis of the religious freedom during the age of COVID-19 pandemic”. Taking as a starting point the valuable contributions of the participants in the Special Issue, it explores analogous and distinctive implications of the COVID-19 pandemic in different legal contexts and underlines the relevance of cooperation between religious and public actors to face a global health crisis. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Building Information Modeling in Quebec’s Procurement for Public Infrastructure: A Case for Integrated Project Delivery
Laws 2021, 10(2), 43; https://doi.org/10.3390/laws10020043 - 01 Jun 2021
Cited by 3 | Viewed by 3208
Abstract
The Province of Quebec is currently in the process of adopting building information modeling (BIM) for major infrastructure projects. However, legal and contractual concerns such as the tendering process, adjudication criteria, intellectual property and risk–reward sharing mechanisms hinder the implementation of an efficient [...] Read more.
The Province of Quebec is currently in the process of adopting building information modeling (BIM) for major infrastructure projects. However, legal and contractual concerns such as the tendering process, adjudication criteria, intellectual property and risk–reward sharing mechanisms hinder the implementation of an efficient BIM process. This paper addresses the following question: How do norms, whether legislative, regulatory or contractual, functionally or dysfunctionally affect the effective implementation of BIM in Quebec’s public infrastructure framework? This paper suggests that the use of Integrated Project Delivery (IPD) should help mitigate legal barriers hindering BIM implementation, while preserving balance between fairness and encouraging collaboration. Quebec’s normative framework, which includes legislation, regulations, contracts and infra-regulatory rules, should be modified to standardize collaborative mechanisms, integrate two-stage negotiated processes such as rank-and-run or best and final offer and enable the assessment of tenderers’ objective qualities and more subjective qualities. Furthermore, a risk–reward sharing mechanism should be implemented through target costing, and upstream participation from a wide range of stakeholders should be encouraged. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
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Article
The Letters of Marshall McLuhan and Pierre Elliott Trudeau: Privacy/Private Matters
Laws 2021, 10(2), 42; https://doi.org/10.3390/laws10020042 - 29 May 2021
Cited by 1 | Viewed by 2673
Abstract
There has been a paradigm shift in global communications since the death many years ago of prominent Canadians Marshall McLuhan and Pierre Elliott Trudeau. The correspondence between the two friends, from 1968 to 1980, presciently touched on our contemporary wired global village and [...] Read more.
There has been a paradigm shift in global communications since the death many years ago of prominent Canadians Marshall McLuhan and Pierre Elliott Trudeau. The correspondence between the two friends, from 1968 to 1980, presciently touched on our contemporary wired global village and the challenges it presents to personal privacy and to freedom of expression. I examine the relationship between the two men, as laid out in their letters and, to a lesser extent, in secondary sources, highlighting matters of privacy and media. Privacy hovers over the correspondence, even when it is not the stated topic. McLuhan, who is credited with the term “global village”, discussed with Trudeau the effect of new media on people’s notions of tribe and identity and privacy. Proving a direct influence from one man to the other, in either direction, is not possible, but there is much to play with. The gap is, as McLuhan often said, “where the action is”. Full article
Commentary
Threats to Women/Women as Threats: Male Supremacy and the Anti-Statist Right
Laws 2021, 10(2), 41; https://doi.org/10.3390/laws10020041 - 20 May 2021
Viewed by 2937
Abstract
Throughout the Trump administration, media coverage of extremist factions of the American right grew considerably, as did the actual membership and numbers of those factions. Included among these factions, and operating on a spectrum that ranges from the center-to-fringe right, are white supremacist, [...] Read more.
Throughout the Trump administration, media coverage of extremist factions of the American right grew considerably, as did the actual membership and numbers of those factions. Included among these factions, and operating on a spectrum that ranges from the center-to-fringe right, are white supremacist, Christian nationalist, and militia/patriot/sovereign citizen (broadly termed constitutionalist) movements. While the American right is heterogeneous, most of these groups are composed of white men, and male supremacism is often a common ideological denominator. Based on historical trends, recent activity, and ongoing movement mobilizations, we should anticipate increased recruitment and activism on the part of anti-statist right-wing groups during the Biden administration. While much has been written about the threat of terroristic violence these groups pose and their varying levels of engagement with white supremacist beliefs, examinations of gender have largely focused on masculinity. This note takes up the relationship between anti-statist right-wing movements and women by sketching three key areas that warrant further examination: (1) how collective interpretations of the law leave women vulnerable by refusing the legitimacy of federal legislation; (2) the threat of militia violence against women, particularly those who hold elected office; (3) how racial and gender exclusions preclude women from having their claims to membership in anti-statist right-wing movements be fully recognized. As we take stock of the growing threat posed by these movements, it is incumbent on us to critically examine the threats to women’s rights posed by the anti-statist right. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
The Impact of the Church–State Model for an Effective Guarantee of Religious Freedom: A Study of the Peruvian Experience during the COVID-19 Pandemic
Laws 2021, 10(2), 40; https://doi.org/10.3390/laws10020040 - 19 May 2021
Cited by 3 | Viewed by 2723
Abstract
During the COVID-19 pandemic, many governments established important restrictions on religious freedom. Due to a restrictive interpretation of the right to religious freedom, religion was placed in the category of “non-essential activity” and was, therefore, unprotected. Within this framework, this paper tries to [...] Read more.
During the COVID-19 pandemic, many governments established important restrictions on religious freedom. Due to a restrictive interpretation of the right to religious freedom, religion was placed in the category of “non-essential activity” and was, therefore, unprotected. Within this framework, this paper tries to offer a reflection on the relevance of the dual nature of religious freedom as an individual and collective right, since the current crisis has made it clear that the individual dimension of religious freedom is vulnerable when the legal model does not offer an adequate institutional guarantee to the collective dimension of religious freedom. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
COVID-19 and Religious Freedom: Some Comparative Perspectives
Laws 2021, 10(2), 39; https://doi.org/10.3390/laws10020039 - 18 May 2021
Cited by 5 | Viewed by 3218
Abstract
The government’s measures against COVID-19 have raised, in virtually all contemporary democracies, important issues regarding the proportionality of limitations on fundamental rights, including freedom of religion or belief. This paper analyses some of those issues with particular reference to religious freedom, in the [...] Read more.
The government’s measures against COVID-19 have raised, in virtually all contemporary democracies, important issues regarding the proportionality of limitations on fundamental rights, including freedom of religion or belief. This paper analyses some of those issues with particular reference to religious freedom, in the light of the experiences of various European and American countries. It also examines the cooperation (or lack of) between governments and religious communities in the fight against the pandemic, as well the response of religious communities to anti-COVID-19 rules, which has included recently some litigation alleging the unequal treatment of religion in comparison with other activities or institutions. The author argues that more dialogue and reciprocal cooperation between governments and religious communities (and civil society in general) is needed in this type of crisis, as well a strict scrutiny of restrictions imposed on freedom of religion from the perspective of proportionality and equality. Full article
(This article belongs to the Special Issue The Crisis of Religious Freedom in the Age of COVID-19 Pandemic)
Article
Free Appropriate Public Education, the U.S. Supreme Court, and Developing and Implementing Individualized Education Programs
Laws 2021, 10(2), 38; https://doi.org/10.3390/laws10020038 - 17 May 2021
Viewed by 2862
Abstract
In 1975, the Education for All Handicapped Children Act (renamed the Individuals with Disabilities Education Act in 1990) established the essential obligation of special education law, which is to develop a student’s individualized special education program that enables them to receive a free [...] Read more.
In 1975, the Education for All Handicapped Children Act (renamed the Individuals with Disabilities Education Act in 1990) established the essential obligation of special education law, which is to develop a student’s individualized special education program that enables them to receive a free appropriate public education (FAPE). FAPE was defined in the federal law as special education and related services that: (a) are provided at public expense, (b) meet the standards of the state education agency, (c) include preschool, elementary, or secondary education, and (d) are provided in conformity with a student’s individualized education program (IEP). Thus, the IEP is the blueprint of an individual student’s FAPE. The importance of FAPE has been shown in the number of disputes that have arisen over the issue. In fact 85% to 90% of all special education litigation involves disagreements over the FAPE that students receive. FAPE issues boil down to the process and content of a student’s IEP. In this article, we differentiate procedural (process) and substantive (content) violations and provide specific guidance on how to avoid both process and content errors when drafting and implementing students’ IEPs. Full article
(This article belongs to the Special Issue Education Law)
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Article
Saudi Procurement System and Regulations: Overview of Local and International Administrative Contracts
Laws 2021, 10(2), 37; https://doi.org/10.3390/laws10020037 - 13 May 2021
Viewed by 2650
Abstract
This research investigated the Saudi procurement system and regulations in the context of local and international administrative contracts. Mainly, Saudi Government Tenders and Procurement Law was investigated in more detail to understand basic rules and regulations of the bidding, selection process, and penalties [...] Read more.
This research investigated the Saudi procurement system and regulations in the context of local and international administrative contracts. Mainly, Saudi Government Tenders and Procurement Law was investigated in more detail to understand basic rules and regulations of the bidding, selection process, and penalties in case of delay in the administrative contract process. Moreover, a matter of direct purchase was also investigated to understand the circumstances and conditions of a direct purchase. In addition, the international administrative contract was discussed to comprehend the nature and regulations of such contracts. A matter of arbitration was also investigated to know the arbitrator’s role and powers in case of a dispute in contracting and performing international administrative contracts outside the country. The arguments against arbitration were also deliberated to recognize the limitations of arbitration in the presence of local and foreign legislations. Overall, Saudi Government Tenders and Procurement Law is well-versed and organized in displaying all-important jurisdictions and matters regarding administrative contracts and the procurement system. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
Article
Just Mothering: Amy Coney Barrett and the Racial Politics of American Motherhood
Laws 2021, 10(2), 36; https://doi.org/10.3390/laws10020036 - 13 May 2021
Viewed by 2863
Abstract
Justice Amy Coney Barrett’s nomination and confirmation featured frequent references to her role as a mother. This article situates these references within the trajectory of American political development to demonstrate how motherhood operates as a mechanism for enforcing a white-centered racial order. Through [...] Read more.
Justice Amy Coney Barrett’s nomination and confirmation featured frequent references to her role as a mother. This article situates these references within the trajectory of American political development to demonstrate how motherhood operates as a mechanism for enforcing a white-centered racial order. Through a close analysis of both the history of politicized motherhood as well as Barrett’s nomination and confirmation hearings, I make a series of claims about motherhood and contemporary conservatism. First, conservatives stress the virtuousness of motherhood through a division between public and private spheres that valorizes the middle-class white mother. Second, conservatives emphasize certain mothering practices associated with the middle-class white family. Third, conservatives leverage an epistemological claim about the universality of mothering experiences to universalize white motherhood. Finally, this universalism obscures how motherhood operates as a site in which power distinguishes between good and bad mothers and allocates resources accordingly. By attending to what I call the “republican motherhood script” operating in contemporary conservatism, I argue that motherhood is an ideological apparatus for enforcing a racial order premised on white protectionism. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
Mediated Visibility and Public Environmental Litigation: The Interplay between Inside and Outside Court during Environmental Conflict in Australia
Laws 2021, 10(2), 35; https://doi.org/10.3390/laws10020035 - 11 May 2021
Cited by 2 | Viewed by 2620
Abstract
Conflicts over environmental sustainability are increasingly being fought in court, such as the use of Public Environmental Litigation (PEL) to challenge developments impacting the environment in Australia and elsewhere. News media coverage of PEL introduces legal actors to the dynamics of mediatized environmental [...] Read more.
Conflicts over environmental sustainability are increasingly being fought in court, such as the use of Public Environmental Litigation (PEL) to challenge developments impacting the environment in Australia and elsewhere. News media coverage of PEL introduces legal actors to the dynamics of mediatized environmental conflict, which provides a platform for conflict actors to gain mediated visibility for their cause to influence public debate. When legal opportunities, such as PEL, are used as a campaign tactic, the dynamics of contest are exposed and, while courts have some power over legal actors, parties seek news media to favorably translate legal outcomes to the public. This article explores the nexus of PEL, news media, and communication strategies to find greater understanding of who gains from the mediated visibility that occurs when transnational environmental campaigns take their claims to court. Using content analysis and discourse analysis of news texts and semi-structured interviews relating to eight PEL cases instigated to stop the Adani Carmichael coal megamine in Australia, we seek better understanding of the mechanisms at play when PEL campaigns appear in news media, and find that the dominance of outside court sources in news coverage not only privilege the political aspects of PEL over the legal, but highlights how strategic litigation, such as PEL, can be used to influence public opinion and, therefore, a political response, regarding environmental conflict. Full article
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Article
Sex Discrimination in Schools: The Law and Its Impact on School Policies
Laws 2021, 10(2), 34; https://doi.org/10.3390/laws10020034 - 11 May 2021
Cited by 1 | Viewed by 3063
Abstract
The law has the potential to influence school policy in the United States. Specifically, statutes, constitutional provisions, and the outcomes of court cases can impact the civil rights of students, which, in turn, can presumably lead to policies that prohibit discriminatory practices. For [...] Read more.
The law has the potential to influence school policy in the United States. Specifically, statutes, constitutional provisions, and the outcomes of court cases can impact the civil rights of students, which, in turn, can presumably lead to policies that prohibit discriminatory practices. For example, Congress has enacted federal laws (statutes) that prohibit discrimination based on race, sex, and disability; these laws arguably impact school practice. After setting the legal context, through an analysis of statutes, constitutional provisions and case law, this article examines how law has the potential to influence education policy related to sex discrimination. In doing so, a few illustrative cases related to sexual harassment, single-sex programs, pregnant and parenting teens, dress codes, transgender student rights, and athletics are discussed to provide examples about how case outcomes may help create more equitable school environments. Full article
(This article belongs to the Special Issue Education Law)
Article
Reconciling Remote Sensing Technologies with Personal Data and Privacy Protection in the European Union: Recent Developments in Greek Legislation and Application Perspectives in Environmental Law
Laws 2021, 10(2), 33; https://doi.org/10.3390/laws10020033 - 11 May 2021
Cited by 4 | Viewed by 2766
Abstract
Using remote sensing technologies to ensure environmental protection responds to the need of protection of a right and a public good and interest. However, the increasing introduction of these technologies has raised new challenges, such as their interference with the rights of privacy [...] Read more.
Using remote sensing technologies to ensure environmental protection responds to the need of protection of a right and a public good and interest. However, the increasing introduction of these technologies has raised new challenges, such as their interference with the rights of privacy and personal data, which are also protected fundamental rights. In this paper the importance of remote sensing technologies as tools for environmental monitoring and environmental law enforcement is analyzed, while legal issues regarding privacy and data protection from their use for environmental purposes are presented. Existing legislation for reconciling emerging conflicts is also examined and major European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) case law on the issue is approached. Finally, recent developments in Greek legislation and their application perspectives in environmental law are presented as a timely “case study”. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
Article
Economic and Legal Analysis of Cryptocurrency: Scientific Views from Russia and the Muslim World
Laws 2021, 10(2), 32; https://doi.org/10.3390/laws10020032 - 10 May 2021
Cited by 3 | Viewed by 3709
Abstract
The article is devoted to the analysis of cryptocurrency as a new phenomenon in the modern global economic processes and legal institutions. The relevance of the study is predetermined by the very specifics of such a phenomenon as cryptocurrency consisting of a distributed [...] Read more.
The article is devoted to the analysis of cryptocurrency as a new phenomenon in the modern global economic processes and legal institutions. The relevance of the study is predetermined by the very specifics of such a phenomenon as cryptocurrency consisting of a distributed ledger technology, which determines the peculiarities of issuing, storing and performing operations with cryptocurrency. Moreover, the cryptocurrency turnover directly correlates with the national legislation of individual countries, which are the subject of domestic regulation with currency, tax legislation and legislation on the securities market. Sometimes, in this regard, there is a clash of public interests and the interests of entities involved in the circulation of cryptocurrencies. Cryptocurrency, as an unconventional, trendy phenomenon of the recent times, has become the object of research and discussions on all the world platforms, starting with academia, continuing with the business community and ending with state institutions. There are many reasons for explaining such interest and they can all be reduced to two main blocks: the advantages and the disadvantages of cryptocurrency circulation. The problem of cryptocurrency turnover, on the one hand, is that until now none of the national economies have regulated the cost-effective mechanism for the cryptocurrency turnover and, on the other hand, the leading countries have not yet set up an effective system of legal regulation of cryptocurrency. Many countries are in the active process of working to adequately address the above problem. Separately, it is worth highlighting the interest of Muslim countries in this issue, where discussions are still underway about the permissibility of cryptocurrency in Islamic law. As for the Russian realities in the context of the issue under study, the Federal Law “On Digital Financial Assets, Digital Currency and on Amendments to Certain Legislative Acts of the Russian Federation“, which came into effect on 1 January 2021, was supposed to streamline relations of subjects including cryptocurrencies, but, according to the experts in this field, this law is far from impeccable and this sphere of relations cannot be quickly and effectively regulated. This article describes the characteristics of cryptocurrency, its essence, disadvantages and advantages as an object of economic and civil law relations. The purpose of the research is to analyze the economic and legal phenomenon of cryptocurrency, as well as its characteristics in the Muslim legal system. The complexity of the work should be emphasized as a novelty. Based on the designated goal and the logic of construction, the study consists of three interrelated parts. The first part outlines the characteristics of cryptocurrency as an economic category, the second part is devoted to its legal analysis and the last part of the study demonstrates the Islamic perception (Sharia analysis) of this phenomenon. As a conclusion on the scientific research, we will highlight the following provisions. First, economically, nowadays, cryptocurrency is a rather controversial financial instrument: on the one hand, it has great investment attractiveness, but on the other hand, it is subject to great volatility and seems to be a rather risky financial asset. Secondly, from a legal standpoint, cryptocurrencies have not yet found their consistent consolidation and further legal regulation in the Russian legislation. It seems that the legal regulation of this institution will systematically develop depending on what application and results of its turnover the cryptocurrency will have in the future. Finally, the Islamic interpretation of the cryptocurrency phenomenon boils down to the absence of a single, consistent explanation of it from the perspective of Islam and Sharia as an object of permissibility (or prohibition) of transactions with it. It is necessary to further analyze the practice of using cryptocurrency and its impact on the economy and legal institutions in order to make a final decision on its permissibility or prohibition in correlation with the types of activity and the upcoming consequences associated with it. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
Article
The Promise of the EU Charter of Fundamental Rights (and Brexit) on the Implementation of Economic and Social Rights among EU Member States
Laws 2021, 10(2), 31; https://doi.org/10.3390/laws10020031 - 24 Apr 2021
Viewed by 2681
Abstract
This article examines the extent to which the inclusion of the European Union (EU) Charter of Fundamental Rights in the Treaty of Lisbon, which gives legal force to socio-economic rights as well as civil and political rights, will succeed in helping EU member [...] Read more.
This article examines the extent to which the inclusion of the European Union (EU) Charter of Fundamental Rights in the Treaty of Lisbon, which gives legal force to socio-economic rights as well as civil and political rights, will succeed in helping EU member states meet international treaty obligations to implement socio-economic rights. Will the EU’s renewed commitment to developing the social sphere, post-Brexit, be more successful and will British citizens lose out on so-cio-economic rights in the long term if the EU succeeds in creating a better social or public dimension? Member states of the EU that have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) have obligations to progressively realise economic, social and cultural (ESC) rights. Progress on this has been slow and potentially made more difficult by the economic direction adopted by the EU since the 1980s. Although the EU, from the beginning, saw itself as a “social market” it struggled to embed the “social” to the same extent that it embedded the “market”. Critics argue that the economic policies of the EU and key judgements of the European Court of Justice (ECJ) successfully dis-embedded the market from its social context. Additionally, the regulatory regime of the EU developed in a direction that limited the capacity of nation states to ameliorate the consequences of market-led policies for the least advantaged. However, the Charter of Rights, which places socio-economic rights on an equal footing with civil and political rights, is a novel and bold initiative. It has stimulated debate on whether the Charter could rebalance the EU’s economic agenda by paying attention to the social consequences of predominantly market-led policies. This paper examines the potential impact of the EU Charter, in the context of member states international human rights obligations, to create an environment where member states of the EU have fewer obstacles to the “progressive realization” of ESC rights. Full article
Article
Special Solicitude: Religious Freedom at America’s Public Universities
Laws 2021, 10(2), 30; https://doi.org/10.3390/laws10020030 - 20 Apr 2021
Viewed by 2349
Abstract
Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the [...] Read more.
Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student religious groups at America’s public campuses. This article examines religious freedom at America’s public universities. This article has three parts. First, it offers an overview of religious freedom prior to Espinoza and Our Lady. Second, it briefly discusses those two cases. Third, it explores the implications of those decisions on America’s public campuses. Full article
(This article belongs to the Special Issue Education Law)
Article
A “New Middle East” Following 9/11 and the “Arab Spring” of 2011?—(Neo)-Orientalist Imaginaries Rejuvenate the (Temporal) Inclusive Exclusion Character of Jus Gentium
Laws 2021, 10(2), 29; https://doi.org/10.3390/laws10020029 - 15 Apr 2021
Cited by 2 | Viewed by 3226
Abstract
The resurgence of a deterministic mode of representation mythologizing Arabs as figuring (threatening) Saracen by judging their epistemological commitments as hostile to Enlightened reason-based ideals is demonstratively identifiable after 9/11, and more so following the Arab uprisings in 2011, when we notice that [...] Read more.
The resurgence of a deterministic mode of representation mythologizing Arabs as figuring (threatening) Saracen by judging their epistemological commitments as hostile to Enlightened reason-based ideals is demonstratively identifiable after 9/11, and more so following the Arab uprisings in 2011, when we notice that the Arab in general, and Muslim in particular, was historicized as the “new barbarian” from which (liberal-secular) Westphalian society must be defended. Such neo-Orientalist representations disseminate powerful discursive (symbolic) articulations (i.e., culture talk) —in tandem with the (re)formulation of legal concepts and doctrines situated in jus gentium (i.e., sovereignty, immanence, and pre-emptive defense strategy)—legally adjudicating a redemptive war ostensibly to “moralize” a profane Arabia. Proponents of neo-Orientalism define their philosophical theology as not simply incompatible with Arab epistemology (Ar. العربية المعرفة نظرية), but that Arab-Muslims are an irreconcilable threat to Latin-European philosophical theology, thus, accentuating that neo-Orientalism is constituted by an ontological insecurity constituting Arab-Islamic philosophical theology as placing secular modern logic under “siege” and threatening “civil society”. This legal-historical research, therefore, argues that neo-Orientalism not only necessitates figuring the Arab as Islamist for the ontological security of a “modern” liberal-secular mode of Being, but that such essentialist imaginary is a culturalist myth that is transformed into a legal difference which proceeds to argue the necessity of sanctioning a violent episode transforming a supposed lawless “Middle East” receptive to terror, into a lawful “New Middle East” receptive to reason. This sacrilegos process reveals the “inclusive exclusion” temporal ethos of (a positivist) jus gentium which entails maintaining a supposed unbridgeable cultural gap between a (universalized) sovereign Latin-European subject, and a (particularized) Arab object denied sovereignty for the coherence of Latin-European epistemology. Full article
Article
The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination
Laws 2021, 10(2), 28; https://doi.org/10.3390/laws10020028 - 13 Apr 2021
Viewed by 3906
Abstract
Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of [...] Read more.
Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea. Full article
(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)
Article
Sexual Violence against Women, the Laws, the Punishment, and Negotiating the Duplicity
Laws 2021, 10(2), 27; https://doi.org/10.3390/laws10020027 - 13 Apr 2021
Viewed by 2605
Abstract
On 16 December 2012, India erupted in national outrage against the rape of a 23-year-old female student in New Delhi, christened “Nirbhaya” (fearless). In the aftermath, there was a convergence of multiple discourses that framed post-independent India’s feminist consciousness. In 2020, four men [...] Read more.
On 16 December 2012, India erupted in national outrage against the rape of a 23-year-old female student in New Delhi, christened “Nirbhaya” (fearless). In the aftermath, there was a convergence of multiple discourses that framed post-independent India’s feminist consciousness. In 2020, four men convicted of Nirbhaya’s rape and murder were executed. An eight-year old girl in Kashmir was brutally raped and murdered in January 2018. The trial court sentenced the main accused to life in prison. In December 2019, four men held in yet another horrific rape and death of a 27-year veterinarian in Hyderabad were killed by the police in what has been called an extrajudicial killing. More recently, in 2020, a 19-year old was raped and killed in rural Uttar Pradesh. The victims came from different social locations, castes, tribes, and religious communities. This paper presents a feminist critique of the legal discourse on rape and the death penalty. It looks at an ironical cooptation of the critique of sexual violence by a patriarchal discourse on social injury and collective conscience. The paper examines how fleeting rage against the culprits and the call for death penalty immunizes larger misogynist cultural assumptions. This myopic rage is oblivious to sexual violence in women’s daily lives. Finally, the paper looks at why legal reforms triggered by brutal acts of sexual violence, receiving widespread media attention, fail to achieve systemic societal changes. Full article
(This article belongs to the Special Issue Criminology and Criminal Justice)
Article
Why We Need a National CROWN Act
Laws 2021, 10(2), 26; https://doi.org/10.3390/laws10020026 - 12 Apr 2021
Cited by 1 | Viewed by 3122
Abstract
Discrimination and intersecting forms of oppression directed at Black women influence how they look, live, work, interact with others, and even view their bodies and identities. Black hair has been and remains a target of this discrimination and oppression by obligating Black women [...] Read more.
Discrimination and intersecting forms of oppression directed at Black women influence how they look, live, work, interact with others, and even view their bodies and identities. Black hair has been and remains a target of this discrimination and oppression by obligating Black women to strive toward White beauty norms. Still under consideration in several states, the Creating a Respectful and Open World for Natural Hair (CROWN) Act provides a legislative intervention to protect Black women (and men) from hair discrimination at work, during school, and as they go about their daily lives. This article examines the politics affecting Black hair. The data for this study came from semi-structured interviews with 22 Black women who define their hair as natural. The results indicate that racial history and stereotypes continue to create unachievable standards for Black hair; that Black women continue to encounter discrimination when embracing their natural hair; and that wearing Black natural hair is often an uplifting decision for the women who elect to do so. The fact that others continue to challenge and discriminate against Black natural in multiple venues confirms the need for a national CROWN Act. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
Improving the Water Quality Monitoring System in the Yangtze River Basin—Legal Suggestions to the Implementation of the Yangtze River Protection Law
Laws 2021, 10(2), 25; https://doi.org/10.3390/laws10020025 - 09 Apr 2021
Cited by 1 | Viewed by 2371
Abstract
The Yangtze River Basin is the largest river basin in China and has the most complex trans-boundary problems. The water quality monitoring system of the provincial boundary sections in the basin is the typical go-to system to show the interaction between administrative regions [...] Read more.
The Yangtze River Basin is the largest river basin in China and has the most complex trans-boundary problems. The water quality monitoring system of the provincial boundary sections in the basin is the typical go-to system to show the interaction between administrative regions and basins. In this article, we discuss the water quality monitoring system in the basin from a legal perspective, explore the achievements and deficiencies of the system, and identify the main elements that constrain the effective operation of the system in the basin, including the fragmented competencies of monitoring institutions, the different monitoring techniques, the overlapping monitoring contents and scopes, the different data releasing channels, and the different applications of the data. We provide legislative suggestions to implement the newly enacted Yangtze River Protection Law and valuable lessons for the design of monitoring systems in other countries or (trans-boundary) basins that face a similar situation. Full article
(This article belongs to the Section Environmental Law Issues)
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Article
Legaltech and Lawtech: Global Perspectives, Challenges, and Opportunities
Laws 2021, 10(2), 24; https://doi.org/10.3390/laws10020024 - 09 Apr 2021
Cited by 4 | Viewed by 3719
Abstract
Legaltech refers to the application of new technologies to the world of law, to carry out tasks that, until recently, were performed by lawyers or other personnel working in law firms. From 2015 onwards the Lawtech alternative has emerged. In this work, the [...] Read more.
Legaltech refers to the application of new technologies to the world of law, to carry out tasks that, until recently, were performed by lawyers or other personnel working in law firms. From 2015 onwards the Lawtech alternative has emerged. In this work, the concepts of Legaltech and Lawtech have been analyzed by searching the two main scientific information databases such as Scopus and Wed of Science (WoS). There has been a clear trend to use the concept of Legaltech against Lawtech. Six clear research lines have been detected from the whole of the published documents regarding these concepts. These are the related to Computer Science, Justice, Legal profession, Legal design, Law firms, and Legal Education. It is proposed to use the term Legaltech to include all technological advances in the legal field. From the point of view of opportunities, the irruption of Legaltech will be able to offer accurate legal advice to the public, reducing the price of this and on the other hand, analyze large amounts of data that law firms and legal advisors will use to improve their management and increase their productivity. In short, Legaltech and Lawtech are opening up new opportunities in the legal sector encouraging technological innovation, giving greater access to legal services, even try to achieve the goal of universal access to justice. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
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Article
Anticorruption, Cultural Norms, and Implications for the APUNCAC
Laws 2021, 10(2), 23; https://doi.org/10.3390/laws10020023 - 08 Apr 2021
Cited by 1 | Viewed by 2394
Abstract
Corruption is a phenomenon that has received global attention from academics, policy makers and international donors. Corruption may be defined as the abuse of power for private gain. Activities include bribery, extortion, rent-seeking behaviour, cronyism, patronage, nepotism, embezzlement, graft and engagement with criminal [...] Read more.
Corruption is a phenomenon that has received global attention from academics, policy makers and international donors. Corruption may be defined as the abuse of power for private gain. Activities include bribery, extortion, rent-seeking behaviour, cronyism, patronage, nepotism, embezzlement, graft and engagement with criminal enterprises. However, patronage, nepotism and gift giving are frequently viewed in many Asian and African cultures as acceptable practices that promote efficiency and smooth relationships. This article examines these practices in contexts including Afghanistan, Papua New Guinea, Russia, China and South Asia, discusses various rationales for these practices, and seeks to understand how these practices can be reconciled with international efforts to combat corruption. This article focuses on the implications with regard to the Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC) and the proposal to establish a body of United Nations (UN) inspectors to investigate charges of corruption and refer cases to dedicated domestic anticorruption courts. This article suggests that UN inspectors and international norms against corruption are not incompatible with traditional cultural practices. This article draws upon the experiences of Hong Kong and Singapore, where corruption was endemic, to demonstrate that local cultural norms can be rapidly changed when independent inspectors are established and receive support from institutions that are free from manipulation by domestic authorities. Full article
Article
Coping with Criticism and Embracing Change—Further Reflexions on the Debate on a Mental Health Care System without Coercion
Laws 2021, 10(2), 22; https://doi.org/10.3390/laws10020022 - 31 Mar 2021
Cited by 2 | Viewed by 2654
Abstract
In August 2019, a manuscript was published in this journal that aimed at imagining a mental health care system that renounces the judicial control to better focus on the will and preferences of those who require support. Alternative scenarios for dealing with risk, [...] Read more.
In August 2019, a manuscript was published in this journal that aimed at imagining a mental health care system that renounces the judicial control to better focus on the will and preferences of those who require support. Alternative scenarios for dealing with risk, inpatient care, and police custody were presented that elicited strong and emotionally laden reactions. This article adds further reflections to this debate, aiming at contributing explanations for this unsettlement. A productive notion of criticism is discussed, and ways to achieve change toward a more human rights-oriented psychiatric practice are outlined. Full article
Article
Innovations and Analogies in the Legal Regulation of Withdrawal from a Limited Liability Company under Current Russian Law
Laws 2021, 10(2), 21; https://doi.org/10.3390/laws10020021 - 27 Mar 2021
Viewed by 2355
Abstract
The purpose of the study is to highlight the most significant legal gaps in the mechanism under study, find doctrinally relevant ways to overcome them casually in law enforcement, and propose options for generally filling the gaps in rulemaking. It is equally important [...] Read more.
The purpose of the study is to highlight the most significant legal gaps in the mechanism under study, find doctrinally relevant ways to overcome them casually in law enforcement, and propose options for generally filling the gaps in rulemaking. It is equally important to test the effectiveness of the analogy as a means to combat legal gaps. The methodological framework was formed by general (analysis, synthesis, abstraction, and concretization) and specific (comparative, formal, and technical legal) scientific research methods. The positive role of analogy as a method of combating legal uncertainty and the formation of legislative innovations was confirmed. The conclusion was made about the absence of a formal need for additional legislative authorization for Limited Liability Companies’ members to create a conditional or individualized withdrawal procedure. Backed by the legal analogy, the necessity to extend the freedom-of-contract doctrine in determining the fair value of a withdrawing shareholder’s share was argued. The achievements provided the basis for specific practical proposals to enhance existing Russian legislation and harmonize corporate relationships, which should improve Russia’s business climate. Full article
(This article belongs to the Special Issue Law, Financial Stability and Economy)
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