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Laws, Volume 10, Issue 3 (September 2021) – 25 articles

Cover Story (view full-size image): Supported housing offers help to some of the most vulnerable in society, yet across the world, providers face increasing pressures from residualisation in the form of service reduction and stretched budgets. In response, providers are increasingly seeking innovative methods of engagement. This paper reports on one such example, the Restorative Communities Programme, a proactive intervention promoting restorative thinking for males aged 16–25 in residential supported housing. The analysis considers challenges and successes, reflecting on issues of contractualised participation and the dynamics of restorative programmes in ‘managed communities’. It provides an assessment of restorative practices as they might apply in other institutional settings such as prisons, probation, schools, and other services struggling with pressures of residualisation. View this paper.
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Article
When Is an Increase in Criminal Legislation Necessary? Emphasis on Economic Criminality Discussions
Laws 2021, 10(3), 75; https://doi.org/10.3390/laws10030075 - 17 Sep 2021
Cited by 1 | Viewed by 2811
Abstract
The objective of this article is to answer the question of when an increase in criminal legislation is necessary. To this end, a review was conducted on the positions that deal directly or peripherally with increases in criminal legislation, with a focus on [...] Read more.
The objective of this article is to answer the question of when an increase in criminal legislation is necessary. To this end, a review was conducted on the positions that deal directly or peripherally with increases in criminal legislation, with a focus on how these positions relate to increases, such as the more general positions related to “law and social change”, as well as the more specific positions related to penal inflation and “penal populism”. Special reference will be made to the expansion thesis, which, in general, has been well received in Ibero-America. In the second section of this study, the answer to the question is addressed, considering elements from the “law and social change” approach and Sutherland’s reflections on white-collar criminality. Full article
(This article belongs to the Section Criminal Justice Issues)
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Article
“We’re Not Being Treated Like Mothers”: Listening to the Stories of First Nations Mothers in Prison
Laws 2021, 10(3), 74; https://doi.org/10.3390/laws10030074 - 13 Sep 2021
Viewed by 3175
Abstract
This article is based on research with over 160 First Nations women in prisons in New South Wales, Australia. The research identified the lived experience of prison sentences for First Nations women in prison. Our research methodology was guided by an Aboriginal women’s [...] Read more.
This article is based on research with over 160 First Nations women in prisons in New South Wales, Australia. The research identified the lived experience of prison sentences for First Nations women in prison. Our research methodology was guided by an Aboriginal women’s advisory body called sista2sista. It was based on the principles of Dadirri in which we listened to the stories of First Nations women in prison on their terms. Consequently, many stories we heard were not about the criminal sentencing process itself, but about the impacts of imprisonment on their capacity to be caregivers in the community, including as mothers, grandmothers, aunts, sisters, teachers and role models. The findings from this research are dual. First, the importance of listening to and empowering First Nations women in prison in policy making that concerns First Nations women. Second, the need to decarcerate First Nations mothers and listen and respond to their needs, expectations, priorities and aspirations, to ensure they are supported in fulfilling their role and responsibility to care, nurture, strengthen and lead their families and communities. Full article
(This article belongs to the Special Issue Criminology and Criminal Justice)
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Article
A Body Speaks: State, Media, and Public Responses to Femicide in Guatemala
Laws 2021, 10(3), 73; https://doi.org/10.3390/laws10030073 - 10 Sep 2021
Viewed by 2723
Abstract
In 2008, Guatemala passed the Law against Femicide and Other Forms of Violence against Women, establishing the gender-based killing of women (femicide) as a unique crime. Since then, over 9000 Guatemalan women and girls have died violent deaths. How do Guatemalan institutions and [...] Read more.
In 2008, Guatemala passed the Law against Femicide and Other Forms of Violence against Women, establishing the gender-based killing of women (femicide) as a unique crime. Since then, over 9000 Guatemalan women and girls have died violent deaths. How do Guatemalan institutions and publics react to these women’s murders, and what do these reactions reveal about the impacts of legislative reform for individual victims, Guatemalan society, and criminal justice institutions? To answer these questions, we analyze state, media, and public reactions to three high-profile femicides that took place after the 2008 VAW Law. We trace the criminal justice response and legal developments following each femicide, and couple this with an analysis of newspaper coverage and social media commentary about the case. We find that despite the passage of new legislation and the creation of new institutions, various weaknesses in the Guatemalan criminal justice system undermine the impacts of reforms. These weaknesses in the criminal justice system produce three types of injuries: (1) individual injuries by hurting victims and their families; (2) public injuries by diverting public attention away from reflections about social norms and VAWG; and (3) institutional injuries by reinforcing the public’s distrust of the criminal justice system. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
An American Notwithstanding Clause? Between Potestas and Potentia
Laws 2021, 10(3), 72; https://doi.org/10.3390/laws10030072 - 10 Sep 2021
Cited by 1 | Viewed by 2397
Abstract
Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the [...] Read more.
Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts. Full article
Article
School-Based Restorative Justice: Lessons and Opportunities in a Post-Pandemic World
Laws 2021, 10(3), 71; https://doi.org/10.3390/laws10030071 - 01 Sep 2021
Viewed by 3047
Abstract
The COVID-19 pandemic has deeply affected schools and the people within them. The move to remote schooling forced practitioners of school-based restorative justice to adapt and innovate, as theory and practice had almost exclusively focused on in-person instruction. In this paper, I first [...] Read more.
The COVID-19 pandemic has deeply affected schools and the people within them. The move to remote schooling forced practitioners of school-based restorative justice to adapt and innovate, as theory and practice had almost exclusively focused on in-person instruction. In this paper, I first review some of the challenges, adaptations, and lessons during the pandemic. I then argue that restorative justice in schools offers new and unique potential to address needs of educational communities and the students, educators, and staff within them as in-person instruction returns. Specifically, I suggest it could contribute to rebuilding social connection and community, bolstering mental health, and addressing inequities. Finally, I end with limitations and future directions for considering these extensions and evaluating their impact. School-based restorative justice alone cannot be a panacea for these issues, but could be integrated into other supports and services to address the stark needs of school communities and of the young people whose lives have been so deeply impacted by COVID-19. Full article
(This article belongs to the Special Issue Ambitions and Critiques of Restorative Justice Post COVID-19)
Article
Digital Transformation and Artificial Intelligence Applied to Business: Legal Regulations, Economic Impact and Perspective
Laws 2021, 10(3), 70; https://doi.org/10.3390/laws10030070 - 27 Aug 2021
Cited by 3 | Viewed by 3606
Abstract
Digital transformation can be defined as the integration of new technologies into all areas of a company. This technological integration will ultimately imply a need to transform traditional business models. Similarly, artificial intelligence has been one of the most disruptive technologies of recent [...] Read more.
Digital transformation can be defined as the integration of new technologies into all areas of a company. This technological integration will ultimately imply a need to transform traditional business models. Similarly, artificial intelligence has been one of the most disruptive technologies of recent decades, with a high potential impact on business and people. Cognitive approaches that simulate both human behavior and thinking are leading to advanced analytical models that help companies to boost sales and customer engagement, improve their operational efficiency, improve their services and, in short, generate new relevant information from data. These decision-making models are based on descriptive, predictive and prescriptive analytics. This necessitates the existence of a legal framework that regulates all digital changes with uniformity between countries and helps a proper digital transformation process under a clear regulation. On the other hand, it is essential that this digital disruption is not slowed down by the regulatory framework. This work will demonstrate that AI and digital transformation will be an intrinsic part of many applications and will therefore be universally deployed. However, this implementation will have to be done under common regulations and in line with the new reality. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
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Article
The Legal Principles of Bethlehem & Operation Timber Sycamore: The “Islamist Winter” Pre-Emptively Targets “Arab Life” by Hiring “Arab Barbarians”
Laws 2021, 10(3), 69; https://doi.org/10.3390/laws10030069 - 24 Aug 2021
Viewed by 3386
Abstract
The following legal-historical research is critical of “Islamist” narratives and their desacralized reverberations claiming that Arab-Muslim receptivity to terror is axiomatic to “cultural experiences” figuring subjects conforming to Arab-Islamic philosophical theology. The critique is founded on deconstructing—while adopting a Third World Approach [...] Read more.
The following legal-historical research is critical of “Islamist” narratives and their desacralized reverberations claiming that Arab-Muslim receptivity to terror is axiomatic to “cultural experiences” figuring subjects conforming to Arab-Islamic philosophical theology. The critique is founded on deconstructing—while adopting a Third World Approach to International Law (TWAIL)—the (im)moral consequences resulting from such rhetoric interpreting the Arab uprising of 2011 from the early days as certainly metamorphosing into an “Islamist Winter”. This secular-humanist hypostasis reminded critics that International Law and International Relations continues to assert that Latin-European philosophical theology furnishes the exclusive temporal coordinates required to attain “modernity” as telos of history and “civil society” as ethos of governance. In addition, the research highlights that such culturalist assertation—separating between law and morality—tolerates secular logic decriminalizing acts patently violating International Law since essentializing Arab-Muslims as temporally positioned “outside law” provides liberal-secular modernity ontological security. Put differently, “culture talk” affirms that since a secular-humanist imaginary of historical evolution stipulates that it is “inevitable” and “natural” that any “non-secular” Arab protests will unavoidably lead to lawlessness, it therefore becomes imperative to suspiciously approach the “Islamist” narrative of 2011 thus deconstructing the formulation of juridical doctrines (i.e., Bethlehem Legal Principles) decriminalizing acts arising from a principle of pre-emption “moralizing” demographic and geographic alterations (i.e., Operation Timber Sycamore) across Arabia. The research concludes that jus gentium continues to be characterized by a temporal inclusive exclusion with its redemptive ramifications—authorized by sovereign power—catalyzing “epistemic violence” resulting in en-masse exodus and slayed bodies across Arabia. Full article
Perspective
We Cannot Return to “Normal”: A Post-COVID Call for a Systems Approach to Implementing Restorative Justice in Education (RJE)
Laws 2021, 10(3), 68; https://doi.org/10.3390/laws10030068 - 19 Aug 2021
Viewed by 3309
Abstract
Given the collective trauma caused by COVID-19 global pandemic, it is more important than ever that schools look for ways to create safe, trauma-sensitive, and restorative learning environments. This article presents implementation science, readiness assessments, and ongoing evaluation as central and integral to [...] Read more.
Given the collective trauma caused by COVID-19 global pandemic, it is more important than ever that schools look for ways to create safe, trauma-sensitive, and restorative learning environments. This article presents implementation science, readiness assessments, and ongoing evaluation as central and integral to all efforts that seek to transform punitive schools into restorative schools. The author first presents five elements of a school’s relational ecology as a framework for comparing a punitive school to a restorative school: structure, leadership, staff, students, and response to behavioral incidents. Then, the author calls upon school administrators, as well as restorative justice trainers who work with schools, to utilize a systems change approach that supports whole-school change. Without a full commitment to systems change, restorative justice in education (RJE) will continue to fall short of expectations and the educational system itself will continue to cause the same harm to marginalized students as it did prior to the pandemic. Full article
(This article belongs to the Special Issue Ambitions and Critiques of Restorative Justice Post COVID-19)
Article
Techno-Stress: Damage Caused by New Emerging Risks
Laws 2021, 10(3), 67; https://doi.org/10.3390/laws10030067 - 19 Aug 2021
Viewed by 2817
Abstract
The world moves and advances very quickly. Production systems and jobs evolve with the world. Occupational risks change as jobs change: The occupational risks of jobs we found two hundred years ago are different from the risks inherent to today’s jobs. The influence [...] Read more.
The world moves and advances very quickly. Production systems and jobs evolve with the world. Occupational risks change as jobs change: The occupational risks of jobs we found two hundred years ago are different from the risks inherent to today’s jobs. The influence of technology is evident in many of today’s companies and, as a consequence, in the work that takes place in them. The recent COVID-19 pandemic, which has so upset the world, has made possible the acceleration in the massive use of certain communication tools that has been linked to the home confinement of a significant part of the population. Lots of workers and companies have been forced to telecommute. In a lot of countries, legislation and regulations were not prepared for these new ways of working: the laws have had to adapt to this new operation. In this area techno-stress has emerged, a new variety of stress derived from the use of new technologies at work, with the consequent negative psychosocial effects for the worker and the people around him, which can, at the same time, be the prelude to many others pathological processes of various nature. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
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Article
Contested Sovereignties: States, Media Platforms, Peoples, and the Regulation of Media Content and Big Data in the Networked Society
Laws 2021, 10(3), 66; https://doi.org/10.3390/laws10030066 - 18 Aug 2021
Cited by 1 | Viewed by 3019
Abstract
This article examines the legal and normative foundations of media content regulation in the borderless networked society. We explore the extent to which internet undertakings should be subject to state regulation, in light of Canada’s ongoing debates and legislative reform. We bring a [...] Read more.
This article examines the legal and normative foundations of media content regulation in the borderless networked society. We explore the extent to which internet undertakings should be subject to state regulation, in light of Canada’s ongoing debates and legislative reform. We bring a cross-disciplinary perspective (from the subject fields of law; communications studies, in particular McLuhan’s now classic probes; international relations; and technology studies) to enable both policy and language analysis. We apply the concept of sovereignty to states (national cultural and digital sovereignty), media platforms (transnational sovereignty), and citizens (autonomy and personal data sovereignty) to examine the competing dynamics and interests that need to be considered and mediated. While there is growing awareness of the tensions between state and transnational media platform powers, the relationship between media content regulation and the collection of viewers’ personal data is relatively less explored. We analyse how future media content regulation needs to fully account for personal data extraction practices by transnational platforms and other media content undertakings. We posit national cultural sovereignty—a constant unfinished process and framework connecting the local to the global—as the enduring force and justification of media content regulation in Canada. The exercise of state sovereignty may be applied not so much to secure strict territorial borders and centralized power over citizens but to act as a mediating power to promote and protect citizens’ individual and collective interests, locally and globally. Full article
Article
Toward a Post-Apocalyptic Rule of Law
Laws 2021, 10(3), 65; https://doi.org/10.3390/laws10030065 - 16 Aug 2021
Cited by 1 | Viewed by 3155
Abstract
This paper considers how science fiction, and the subgenres of speculative historicism and futurism in particular, might open legal discourse to hitherto unseen and potentially instructive perspectives. It begins with the proposition that recent historical events of global significance such as the election [...] Read more.
This paper considers how science fiction, and the subgenres of speculative historicism and futurism in particular, might open legal discourse to hitherto unseen and potentially instructive perspectives. It begins with the proposition that recent historical events of global significance such as the election of Donald Trump in 2016, the outbreak of the Covid19 pandemic of 2020, and the extreme weather events of 2021, were widely predicted and foreseen in the media by way of political reporting as much as popular social and natural science reporting in the years and decades prior. The same tropes were also present in the plotlines of popular literature, television, and film during that period. The central argument of the paper is that before media pundits and policy-makers expressed their surprise at the fragility of the Rule of Law in the “unprecedented” ascent of Trump, the lethal capacity and transmissibility of a “novel” coronavirus, and the “sudden” arrival of climate change in the daily lives of North Americans and Europeans, the spectre of these menaces had already penetrated our collective conscious in a way that ought to have changed outcomes. Neil Postman’s conceptualization of the present epoch as “Technopoly” is a means of explaining how, despite ample warnings, we were not ready for much. Technopoly refers to the historical present as the historical moment in which the technocratic capacity of individuals, states, and markets to respond to existential problems is hindered by information overload, e.g., the threat to the Rule of Law presented by an outgoing American President who refuses to accept the verdict of the electorate; the threat to public health posed by persistent vaccine misinformation and inequitable global vaccine distribution; and, the threat posed to our collective habitat by extreme climate events. The paper concludes that fiction is a powerful potential antidote to the numbing effects of information overload in Technopoly if it is treated seriously as a source of normative authority rather than dismissed as pure diversion. Full article
Article
Teleworking: A New Reality Conditioned by the Right to Privacy
Laws 2021, 10(3), 64; https://doi.org/10.3390/laws10030064 - 04 Aug 2021
Viewed by 2856
Abstract
Faced with protecting the right to privacy and, with it, the inviolability of homes, the development of new technologies and the possibility of developing work from home has opened the door to a series of new conflicts that require us to provide a [...] Read more.
Faced with protecting the right to privacy and, with it, the inviolability of homes, the development of new technologies and the possibility of developing work from home has opened the door to a series of new conflicts that require us to provide a specific legal framework by which such situations can be addressed. In the Spanish case, we speak of Law 10/2021 from 9 July on remote working. The objective of this study is to assess the scope as well as the problems that this law generates during its application, regarding controlling the provision of services. However, we not only identify the incidental factors, but also provide a necessary reinterpretation of the right to privacy from the perspective of the inviolability of homes, especially when its current articulation may operate to the detriment of employees’ rights, as contradictory as this may seem. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
Article
Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy
Laws 2021, 10(3), 63; https://doi.org/10.3390/laws10030063 - 31 Jul 2021
Cited by 3 | Viewed by 6308
Abstract
Between 2020 and 2021, one hundred and ten bills in state legislatures across the United States suggested banning the participation of transgender athletes on sports teams for girls and women. As of July 2021, ten such bills have become state law. This paper [...] Read more.
Between 2020 and 2021, one hundred and ten bills in state legislatures across the United States suggested banning the participation of transgender athletes on sports teams for girls and women. As of July 2021, ten such bills have become state law. This paper tracks the political shift towards targeting transgender athletes. Conservative political interests now seek laws that suture biological determinist arguments to civil rights of bodies. Although narrow binary definitions of sex have long operated in the background as a means for policy implementation under Title IX, Republican lawmakers now aim to reframe sex non-discrimination policies as means of gendered exclusion. The content of proposals reveal the centrality of ideas about bodily immutability, and body politics more generally, in shaping the future of American gender politics. My analysis of bills from 2021 argues that legislative proposals advance a logic of “cisgender supremacy” inhering in political claims about normatively gendered bodies. Political institutions are another site for advancing, enshrining, and normalizing cis-supremacist gender orders, explicitly joining cause with medical authorities as arbiters of gender normativity. Characteristics of bodies and their alleged role in evidencing sex itself have fueled the tactics of anti-transgender activists on the political Right. However, the target of their aims is not mere policy change but a state-sanctioned return to a narrowly cis- and heteropatriarchal gender order. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
Retouchée au Féminin: The Gendered Nature of the French Law Mandating Labeling of Digitally Modified Images
Laws 2021, 10(3), 62; https://doi.org/10.3390/laws10030062 - 31 Jul 2021
Viewed by 2663
Abstract
The majority of advertisements contain thin-ideal imagery that have been digitally modified. A robust body of research has suggested that exposure to these retouched images has negative effects on body image and increases eating disorder risk. Furthermore, these concerns are known to be [...] Read more.
The majority of advertisements contain thin-ideal imagery that have been digitally modified. A robust body of research has suggested that exposure to these retouched images has negative effects on body image and increases eating disorder risk. Furthermore, these concerns are known to be highly gendered both in nature and in their extent, with women revealing higher levels of concerns predominantly related to thinness. Although not supported as a useful approach by empirical data, in 2017, France introduced a law requiring advertisers to label images featuring models whose weight and/or shape have been altered. These images must bear the label “photographie retouchée”, or “retouched image”. However, this legislation has been difficult to enforce, as unlike other French legislation related to labeling advertising, its lack of specificity makes it difficult to identify violations. Paradoxically, given its intentions, where applied, uses of the label disproportionately focus on women’s bodies in the media, as compared to men’s bodies. These findings highlight the need for legislation that is enforceable and supported by the allocation of sufficient resources. In addition, findings highlight the importance of grounding legislation and policy in the extant relevant data and involving strategic stakeholders in its creation. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
Article
Marrying Young: Limiting the Impact of a Crisis on the High Prevalence of Child Marriages in Niger
Laws 2021, 10(3), 61; https://doi.org/10.3390/laws10030061 - 28 Jul 2021
Cited by 1 | Viewed by 3053
Abstract
Child marriage is a harmful and discriminatory global practice, robbing millions of girls of their childhood. Global attention and momentum to end early marriage has increased over the years; however, the impact of the COVID-19 pandemic has affected this progress. It has been [...] Read more.
Child marriage is a harmful and discriminatory global practice, robbing millions of girls of their childhood. Global attention and momentum to end early marriage has increased over the years; however, the impact of the COVID-19 pandemic has affected this progress. It has been predicted that over the next decade up to 10–13 million more girls will be at risk of child marriage because of the pandemic. Since Niger has consistently had the highest rate of child marriage in the world, this study will explore the impact of the COVID-19 pandemic on child marriages within the west and African region but specifically within Niger. This article will look at past response efforts to other pandemics, specifically Ebola, and show how the girl-child remains disproportionately disadvantaged, especially during pandemics. The article will conclude with recommendations on the importance of incorporating a gender analysis into preparedness and response efforts to eliminate child marriages. Full article
(This article belongs to the Section Law and Gender Issues)
Article
Restorative Practices in Institutional Settings: The Challenges of Contractualised Support within the Managed Community of Supported Housing
Laws 2021, 10(3), 60; https://doi.org/10.3390/laws10030060 - 25 Jul 2021
Cited by 3 | Viewed by 3489
Abstract
Supported housing services provide help to some of the most vulnerable in society, yet across the world face increasing pressures from residualisation in the form of service reduction and stretched budgets. In response to these challenges, providers of supported housing and other similar [...] Read more.
Supported housing services provide help to some of the most vulnerable in society, yet across the world face increasing pressures from residualisation in the form of service reduction and stretched budgets. In response to these challenges, providers of supported housing and other similar community-focused services have sought alternative and innovative methods of engagement. This paper reports on one such example, the Restorative Communities Programme, which took place in 2018 in a residential supported housing setting for males aged 16–25. Designed as a five-week programme, it aimed to offer a proactive intervention promoting the benefits of restorative thinking. The research team observed the sessions and conducted follow-up qualitative interviews after two weeks and one year. This paper considers the challenges and success of the programme, reflecting particularly on issues of contractualised support and its impact on participation, and the dynamics of running such programs within the ‘managed community’ of a supported housing project. As such, the paper provides a useful analysis for others exploring the development and use of restorative projects in institutional settings, such as prisons, probation, and schools, and particularly those services struggling with the pressures of residualisation. Full article
(This article belongs to the Special Issue Advancing Restorative Justice in Criminal Justice Settings and Beyond)
Commentary
Sustaining Cultural Genocide—A Look at Indigenous Children in Non-Indigenous Placement and the Place of Judicial Decision Making—A Canadian Example
Laws 2021, 10(3), 59; https://doi.org/10.3390/laws10030059 - 15 Jul 2021
Cited by 1 | Viewed by 3972
Abstract
The Truth and Reconciliation Commission has called upon Canada to engage in a process of reconciliation with the Indigenous peoples of Canada. Child Welfare is a specific focus of their Calls to Action. In this article, we look at the methods in which [...] Read more.
The Truth and Reconciliation Commission has called upon Canada to engage in a process of reconciliation with the Indigenous peoples of Canada. Child Welfare is a specific focus of their Calls to Action. In this article, we look at the methods in which discontinuing colonization means challenging legal precedents as well as the types of evidence presented. A prime example is the ongoing deference to the Supreme Court of Canada decision in Racine v Woods which imposes Euro-centric understandings of attachment theory, which is further entrenched through the neurobiological view of raising children. There are competing forces observed in the Ontario decision on the Sixties Scoop, Brown v Canada, which has detailed the harm inflicted when colonial focused assimilation is at the heart of child welfare practice. The carillon of change is also heard in a series of decisions from the Canadian Human Rights Tribunal in response to complaints from the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations regarding systemic bias in child welfare services for First Nations children living on reserves. Canadian federal legislation Bill C-92, “An Act respecting First Nations, Inuit and Métis children, youth and families”, brings in other possible avenues of change. We offer thoughts on manners decolonization might be approached while emphasizing that there is no pan-Indigenous solution. This article has implications for other former colonial countries and their child protection systems. Full article
(This article belongs to the Section Human Rights Issues)
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Article
Institutional Design, Prosecutorial Independence, and Accountability: Lessons from the International Commission against Impunity in Guatemala (CICIG)
Laws 2021, 10(3), 58; https://doi.org/10.3390/laws10030058 - 14 Jul 2021
Cited by 1 | Viewed by 2892
Abstract
In 2007 the International Commission against Impunity in Guatemala began working to support the work of the Public Prosecutor’s Office to investigate and prosecute cases of corruption. In this short article, I address three questions: What was the design of CICIG? What were [...] Read more.
In 2007 the International Commission against Impunity in Guatemala began working to support the work of the Public Prosecutor’s Office to investigate and prosecute cases of corruption. In this short article, I address three questions: What was the design of CICIG? What were its results? How did the institutional design contribute to the impact it had in Guatemala? To answer these questions, I first discuss the problem of impunity and provide an interdisciplinary review of the factors that impact when a state punishes crime. In the following section, I briefly explain the institutionalist framework that guides my analysis of the work of CICIG and explain the theoretical importance of institutional design in the functioning of prosecutorial organs. In the third section I describe the institutional design of CICIG, its impact, and its limitations. In this section I explain how key characteristics in its design made this international commission a creative solution against impunity in a context where prosecuting state agents for human rights violations or corruption was virtually impossible. I conclude this article highlighting some key lessons from CICIG on matters of institutional design. Full article
Article
Cryptocurrencies and Fraudulent Transactions: Risks, Practices, and Legislation for Their Prevention in Europe and Spain
Laws 2021, 10(3), 57; https://doi.org/10.3390/laws10030057 - 09 Jul 2021
Cited by 5 | Viewed by 4301
Abstract
Cryptocurrencies have been developing very rapidly in recent years, and their use is becoming more and more widespread in different areas. The use of digital currencies for legal uses is advancing along with technological development, but, at the same time, criminal activities are [...] Read more.
Cryptocurrencies have been developing very rapidly in recent years, and their use is becoming more and more widespread in different areas. The use of digital currencies for legal uses is advancing along with technological development, but, at the same time, criminal activities are also emerging to take advantage of this boom. The aim of this paper has been, first, to analyze the various ways in which individuals and criminal organizations have taken advantage of the phenomenon of cryptocurrencies to carry out fraudulent activities such as laundering money of illicit origin and, second, to provide an overview of the legal tools that have been developed in this regard in Europe and, more specifically, in Spain to combat these activities. Undoubtedly, cryptocurrencies bring great benefits to the economy, but it is also necessary to know the risks and abuses that have been developed to prevent them. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
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Article
Justice for All in the Americas? A Quantitative Analysis of Admissibility Decisions in the Inter-American Human Rights System
Laws 2021, 10(3), 56; https://doi.org/10.3390/laws10030056 - 04 Jul 2021
Viewed by 2945
Abstract
The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major [...] Read more.
The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major obstacle to petitioners seeking justice, there has been relatively little scholarly analysis of the potential interplay of legal and attitudinal factors at this phase. That is, whether this phase may be where the biases that the system has been accused of (i.e., bias against leftist regimes and a “hierarchization” of negative rights and liberties over social justice) manifest themselves. This article fills this gap in the literature by undertaking a comprehensive quantitative analysis of Inter-American Commission on Human Rights admissibility decisions that measures the impact of a broad range of factors and compares the dynamics of admissibility decisions with those of merits decisions. In so doing, it places into context backlash against the system that has led to recent changes in the system’s procedures. Full article
Article
Impact of MiFID II on the Market Volatility—Analysis on Some Developed and Emerging European Stock Markets
Laws 2021, 10(3), 55; https://doi.org/10.3390/laws10030055 - 30 Jun 2021
Cited by 2 | Viewed by 2916
Abstract
The paper investigates whether the implementation of MiFID II, a packet of financial legislation applying broadly to European Union financial markets, has led to a change in the volatility of some European developed and emerging stock markets. We show that for the developed [...] Read more.
The paper investigates whether the implementation of MiFID II, a packet of financial legislation applying broadly to European Union financial markets, has led to a change in the volatility of some European developed and emerging stock markets. We show that for the developed capital markets considered in the analysis, MiFID II did not lead to a decrease in the volatility of capital markets. On the contrary, for all analysis intervals considered (3 months, 6 months, 12 months, 18 months and 24 months), the impact on volatility is positive, with volatility increasing in the case of the FTSE 100, CAC40 and DAX stock indexes. There is a similar significant relationship for the Czech stock market, but only over the three-month interval. For the Polish and Romanian stock markets, which enforced MiFID II later, a negative impact of MiFID II on volatility could also be observed. In the Romanian market, MiFID II had a negative impact on volatility on the short-term horizon, while for the Polish market, the impact of MiFID II on volatility is noticeable on a longer term of 24 months. Full article
(This article belongs to the Special Issue Securitization and Financial Innovation in a Post Crisis World)
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Article
The Sh(e)aring Economy. Debates on the Law on Takings
Laws 2021, 10(3), 54; https://doi.org/10.3390/laws10030054 - 30 Jun 2021
Viewed by 3516
Abstract
Rethinking ‘sharing’ and the relationship between ‘sharing’ and ‘jurisdiction’, this meander proceeds in three parts. It begins with a journey to and through the forests of the nineteenth-century Rhineland, rereading Marx’s journalistic reports on debates in the Sixth Rhine Province Assembly about proposed [...] Read more.
Rethinking ‘sharing’ and the relationship between ‘sharing’ and ‘jurisdiction’, this meander proceeds in three parts. It begins with a journey to and through the forests of the nineteenth-century Rhineland, rereading Marx’s journalistic reports on debates in the Sixth Rhine Province Assembly about proposed amendments to forest regulation (including an extension of the definition of ‘wood theft’ to include the gathering of fallen wood) as a reflection on the making of law by legal bodies. From the forests of the Rhineland, the paper journeys to the forests of England, retracing the common story about the development, by legal bodies, of the body of common law principles applicable to ‘innkeeping’. Traveling to and through the ‘concrete jungles’ of the United States of America, the paper concludes with a reflection on Airbnb’s common story of creation as well as debates about the legality of Airbnb, Airbnb-ing, and ‘sharing’. Full article
(This article belongs to the Special Issue Law and Socio-economic Relations of the Sharing Economy)
Book Review
Between Impunity and Imperialism: The Regulation of Transnational Bribery
Laws 2021, 10(3), 53; https://doi.org/10.3390/laws10030053 - 25 Jun 2021
Viewed by 2825
Abstract
The Regulation of Transnational Bribery by Kevin E. Davis, strips out the universal character of illegitimate payments used to bribe public officials of foreign countries in the milieu of international business which has been known for years. The manuscript deals with various definitions [...] Read more.
The Regulation of Transnational Bribery by Kevin E. Davis, strips out the universal character of illegitimate payments used to bribe public officials of foreign countries in the milieu of international business which has been known for years. The manuscript deals with various definitions of bribery as a transaction in which an official misuse his or her office “as a result of considerations of personal gain, which need not be monetary”. The book highlights the current debate about prohibiting transnational bribery. Such a debate is not about the practicality or desirability of the United States’ FCPA, which at one time was the only law in the world that efficiently banned transnational bribery. Full article
Article
Atlantic Shortfin Mako: Chronicle of a Death Foretold?
Laws 2021, 10(3), 52; https://doi.org/10.3390/laws10030052 - 23 Jun 2021
Viewed by 2811
Abstract
This article outlines recent events concerning the conservation and management trajectory of a highly migratory shark species, the shortfin mako (Isurus oxyrinchus), in the North Atlantic, where it has been routinely captured recreationally and as part of commercial fishing operations alongside other species. [...] Read more.
This article outlines recent events concerning the conservation and management trajectory of a highly migratory shark species, the shortfin mako (Isurus oxyrinchus), in the North Atlantic, where it has been routinely captured recreationally and as part of commercial fishing operations alongside other species. Noting recent warnings concerning the high mortality of the species in this ocean region, and the threat of imminent population collapse, this article sets out a number of applicable law of the sea provisions, and carries out an evaluation of relevant measures for target and incidental capture species, discussing their applicability to the mako fishery. It also presents an analysis of regional and global governance actions taken to date by the international community and by individual actors, noting a number of shortfalls, and outlining potential responses. Full article
(This article belongs to the Special Issue The European Union and the Law of the Sea)
Article
Activities of the European Ombudsman under the Charter of Fundamental Rights: Promoting Good Administration through Human Rights Compliance
Laws 2021, 10(3), 51; https://doi.org/10.3390/laws10030051 - 22 Jun 2021
Viewed by 2918
Abstract
The adoption of the Charter of Fundamental Rights has strengthened the position of the European Ombudsman, since the Charter contains an article specifically dedicated to the Ombudsman. At the same time, the Ombudsman, through her/his practice, contributes to the implementation in the everyday [...] Read more.
The adoption of the Charter of Fundamental Rights has strengthened the position of the European Ombudsman, since the Charter contains an article specifically dedicated to the Ombudsman. At the same time, the Ombudsman, through her/his practice, contributes to the implementation in the everyday life of the provisions of the Charter and their further development. The consolidation and development of the provisions of the Charter by the European Ombudsman have proceeded especially rapidly since the Charter of Fundamental Rights received the status of a binding act. Due to the fact that the right to “good administration” contained in the Charter of Fundamental Rights has become one of the basic human rights in the EU since the Charter became legally binding, the competence of the European Ombudsman has acquired a new substantive and factual (functional) content, expanding her/his ability to positively influence the EU administration in the field of governance and respect for fundamental rights. This article examines, based on legal acts, statistical and other factual data, the interrelated issues (such as institutional and human dimensions of European integration) of ensuring the effectiveness of the Charter of Fundamental Rights through the activities of the European Ombudsman. Full article
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