Laws, Volume 10, Issue 4 (December 2021) – 20 articles

This paper is an analysis of a six-week Restorative Reasoning Programme that took place with 13 women in a UK women’s prison. It is an exploratory evaluation based on an adapted version of the QUALIPREV scheme. This two-stage evaluation examines both the processes of the programme, in terms of how well it ran, as well as the outcomes of the programme, in terms of how effective it was in supporting the women to address problem behaviours. Data comprise interviews with the two programme designers and facilitators and with two Prison staff responsible for activities and training; the programme materials used during the scheme; session evaluation forms; and post-programme self-completion reflections from the women engaged in the programme. Overall, the scheme had a range of positive impacts for the women: many expressed a change in attitude, including being more open for discourse and discussion around the harm they may have caused, being more willing to consider the repair needed in their personal relationships, and in some cases seeking subsequent referrals for further restorative work. Full article

There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values and protects free speech without valuing and protecting free speech for students. Schools must serve as the essential nurseries of our democracy and as examples of the responsible exercise of rights in a free society including free speech. We cannot expect students to spend most of their waking hours in institutions devoid of meaningful rights to freedom of speech and then emerge as adults prepared to exercise and defend democratic freedoms including free speech. Students who learn to exercise free speech rights in schools are more likely to become adults ready to exercise free speech rights in a civil democracy. This article addresses the ongoing evolution of student free speech rights in the U.S., providing a brief overview of free speech law; a review of student speech law in public K-12 schools and in public higher education institutions; a guide to applying the Tinker test in practice; a discussion of the continuing evolution of student speech law in public educational institutions; a review of freedom of the press in public educational institutions; and conclusions on the evolution of student speech. Full article

Digital technologies have been integrated into all aspects of public life, including politics, law, finance, business, education, science, and society. As a result of the use of digital technologies by various subjects, a transformation has occurred of the economic relations existing in society, including corporate relations. This study analyzes the impact of digitalization on individual institutions of corporate law. The authors investigate the following aspects of the digitalization of corporate law: (1) digital legal personality of the corporation (online registration (e-residency) of corporations and the digital footprint that companies leave in public registers); (2) digital corporate governance; and (3) digital (network or decentralized) autonomous organizations. The purpose of this research is to identify trends and directions of transformation of individual institutions of corporate law in a digital society. The authors conclude that the digitalization of institutions of corporate law will result in: (1) the reinterpretation of certain concepts of corporate law, such as corporation and corporate governance; (2) the improvement of the legal mechanisms of corporate governance following the introduction of AI into the collegial executive bodies of corporations; (3) the digitalization of corporate assets; and (4) the emergence of new subjects of corporate and other relevant relations. Full article

The state of Rhode Island (RI) has established its greenhouse gas (GHG) emissions reduction goals, which require rapidly acquired and updatable science-based data to make these goals enforceable and effective. The combination of remote sensing and soil information data can estimate the past and model future GHG emissions because of conversion of “low disturbance” land covers (e.g., evergreen forest, hay/pasture) to “high disturbance” land covers (e.g., low-, medium-, and high-intensity developed land). These modeled future emissions can be used as a predevelopment potential GHG emissions information disclosure. This study demonstrates the rapid assessment of the value of regulating ecosystems services (ES) from soil organic carbon (SOC), soil inorganic carbon (SIC), and total soil carbon (TSC) stocks, based on the concept of the avoided social cost of carbon dioxide (CO₂) emissions for RI by soil order and county using remote sensing and information from the State Soil Geographic (STATSGO) and Soil Survey Geographic Database (SSURGO) databases. Classified land cover data for 2001 and 2016 were downloaded from the Multi-Resolution Land Characteristics Consortium (MRLC) website. Obtained results provide accurate and quantitative spatio-temporal information about likely GHG emissions and show their patterns which are often associated with existing urban developments. These remote sensing tools could be used by the state of RI to both understand the nature of land cover change and likely GHG emissions from soil and to institute mandatory or voluntary predevelopment assessments and potential GHG emissions disclosures as a part of a climate mitigation policy. Full article

Public school educators must navigate very complex intersections of the First Amendment’s Establishment, Free Exercise, and Free Speech clauses. The 6th Circuit’s ruling in Meriwether vs. Hartop created a slippery slope that could create a hostile learning environment and be discriminatory speech while trying to balance public-school educators’ sincerely held religious beliefs. This article examines the Meriwether case and court ruling while providing a background of U.S. Christian nationalism and its implications in American public education. Full article

The asylum system is a key site in which disputes over “sexuality” are contested. In refugee status determinations, administrative bodies are required to determine the actual or perceived sexuality of a claimant. This article draws on eight semi-structured interviews with refugees who claimed asylum in the United Kingdom based on their sexual diversity to deconstruct the distinct conceptions of sexual orientation, identity, and behaviour prevalent within the asylum system. It argues that the UK system overly privileges identity, falsely construing this as determinative of other aspects of sexuality. In doing so, it proposes a new framework of sexual diversity as a more relativist and inclusive way of making sense of sexual difference. Full article

This article contributes a critical study of efforts to internationalize the investigation and prosecution of corruption. The efforts to internationalize anticorruption enforcement are visible, for instance, in calls for an International Anticorruption Court (IACC) or an Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC). Inspired by a historical sociological perspective, this article investigates mobilizations around these initiatives, how mobilizers frame their engagement, and the ideological context in which they operate. In particular, the article zooms in on elites and how they push for states to internationalize the investigation and prosecution of corruption. This article situates the efforts of these elites in a larger historical context and compares the push to internationalize anticorruption enforcement to earlier legal mobilizations in the field of international criminal justice focused on atrocity crimes. Full article

Concerns often arise about the First Amendment rights of public school educators in the United States both inside and outside of their classrooms. As such, after setting the legal context, we analyze teachers’ free speech rights in a variety of settings. In order to do so, we discuss illustrative cases analyzing the legal landscape of teachers’ free expressions rights in U.S. public schools. The purpose of this article is to provide a brief overview highlighting Supreme Court cases and selected opinions from lower courts involving teacher speech impact the expressive rights of educators in public schools rather than serve as a comprehensive analysis of all such speech cases. Full article

This article examines how the recent Indonesian Pornography Law renders homosexuality and/or homosexual acts intelligible to the Indonesia state and society by institutionalising them as criminal offences. By drawing on insights from queer studies and exploring the cases of gay arrests in the country, I demonstrate that certain same-sex sexual acts are more susceptible to criminalisation, especially when those acts blur the distinction between public and private. The deployment of the Pornography Law against gay people, together with the anti-LGBT media environment in the country, has carried consequences for LGBT individuals, particularly gay people, by making them visible, legible, and thus subject to state surveillance and control. Full article

In the UK, Australia, and further afield, restorative programmes have been developed as a response to the failure of the criminal justice system to give victims of sexual violence a voice in the legal process. The restorative justice literature has tended to focus on sexual offences perpetrated by adults and the importance of being victim centred. When it is a child or young person (CYP) who sexually harms, it poses a unique set of challenges for law and society and the restorative practitioner. This article explores the reasons why a different approach may be warranted given the perceived failure of conventional criminal justice in addressing the growing problem of child and adolescent harmful sexual behaviour (HSB) in Scotland. It discusses the difficulties with balancing the rights of the victim with the CYP who perpetrates the HSB and considers the challenges encountered by practitioners in the implementation and application of restorative programmes in HSB cases involving CYP. Although the evidence supports a growing need for a different approach, and restorative justice may offer just that, problems with net widening, the referral process, and resistance from other professionals and victim advocacy groups present real barriers. Consequently, restorative practitioners are likely to find practising in this area more challenging due to a lack of support and cooperation. Full article

This research aims to identify the prospects for recognizing the international legal personality of artificial intelligence, taking into account the practice of international organizations. The article describes a new idea based on the research of the existing practice of international organizations and the application of the author’s concept of international legal personality of legal entities, enabling the identification of the main directions of recognizing the international legal personality of artificial intelligence. Using the problematic-theoretical, formal-legal, logical, systemic-structural methods and methods of synthesis, analysis, and comparison, the author revealed two solutions to the problem of recognizing the international legal personality of artificial intelligence. The first way to resolve the problem is that states may grant the legal entity rights to artificial intelligence, gradually developing an international custom. The second way is that states may conclude that artificial intelligence will be granted a legal entity’s rights or sui generis by participating in discussions organized by various international organizations. The results of the study can be used for international unification. Full article

The Inter-American Court of Human Rights (IACrtHR) has developed in recent years an innovative jurisprudence that has integrated the entity and extension of States’ obligations regarding children’s rights—as established in Article 19 ACHR—through the evolutive, dynamic, and effective interpretation of the American Convention on Human Rights (ACHR). In fact, by acknowledging the existence of an international corpus juris for the protection of children’s rights, the Court has examined this provision in the light of instruments enshrined within the corpus juris, such as the UN Convention on the Rights of the Child. This process of normative integration was not only limited to the application of international instruments adopted outside of the Inter-American system, but also includes internal references to interconnected rights recognised within the American Convention. Consequently, by analysing the scope of Article 19 ACHR in the light of Article 4 ACHR (right to life) and the corpus juris for the protection of children, the Inter-American Court has further expanded the protection of children’s rights towards the protection of the right to a dignified life. While focusing on the landmark jurisprudence developed by IACrtHR, this paper seeks to unveil the hermeneutical paths undertaken by the regional tribunal in connection with the systemic integration of Article 19 ACHR. In particular, it focuses on the emerging jurisprudential development of positive obligations upon States Members regarding the effective protection of children’s right to a dignified existence. Full article

The struggle for queer people to be recognised as full sexual citizens continues to be thwarted by the existence of religious exceptions to equality law. These exceptions reactivate and legitimise the historical oppression of queer people, who have long been plagued by the Four Horsemen of Homophobia. War—because the language of war is often used in the context of religious conscientious objection to gay equality. Famine—because public spending cuts have led to religious groups filling the gap in service provision. Pestilence—because old tropes of infection, promiscuity, and corruption of youth persist, albeit masked by a concern for religious freedom. Finally, Death—because exceptions to equality law operate to limit the citizenship of non-heterosexuals. This paper argues that religiously motivated attempts to restrict queer people’s participation, in a hetero- and theonormative public space, constitutes harm which can be characterised as degrading treatment contrary to Article 3 of the European Convention on Human Rights. The state must be more interventionist in its pursuit of genuine gay citizenship, and remove religious exceptions to equality law; otherwise, it is implicated in the constructive delegation of religious homophobia. Full article

Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated tribunal, namely the International Crimes Tribunal Bangladesh (ICTB). Though the Tribunal is preceded under municipal law, its material jurisdiction, i.e., crimes against humanity and genocide, originated from international criminal law. Therefore, this study examines several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. First, I discuss several legal flaws of the Tribunal by defining crimes against humanity and genocide under the ICTB Statute and jurisprudence. Second, I scrutinize the legal status of international (treaty and customary) laws in Bangladesh’s legal system. Third, by applying international criminal law standards, I focus on the idea that it is one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998. Fourthly, I also discuss whether Bangladesh has any obligation to apply customary international law definition of crimes against humanity because crimes against humanity are considered jus cogens offenses in general international law, from which no derogation is permitted. Lastly, I conclude that Bangladesh Tribunal failed to fulfill its legal obligation to define international crimes under the treaty and customary laws and forward a way to be implemented to improve the legislative system of Bangladesh and harmonize it with international legislation. Full article

Escalating social media use has become a worldwide phenomenon, with easier access each day. Teenagers seem particularly likely to use these expanding platforms. This article focuses on one aspect of social media developments—the school’s ability to intervene to curtail the harmful impact of cyberbullying on students. After presenting data on social media use and the scope of cyberbullying, it addresses the authority of school personnel to discipline students for harmful internet expression initiated off school grounds, including threats, harassment, and bullying. The Supreme Court’s decision in Mahanoy Area School District v. B.L. (2021) is addressed in detail as it is the high court’s first ruling in a case involving student off-campus expression. This article concludes with a discussion of legal guidance that is currently available and provides suggestions for school personnel in their efforts to curtail cyberbullying and create a positive school environment. Given the Supreme Court’s ambiguity as to when students can be disciplined for their off-campus speech, school personnel need strategies to prevent hurtful student expression before it takes place, thus avoiding pain to victims and perpetrators. Education is our greatest resource to combat the escalating cyberbullying that is plaguing American youth. Full article

Educators, including school leaders, must be able to handle legal dilemmas involving student speech, but these do not occur in a vacuum. Often, speech issues are commingled with other legal challenges. This article explores student rights beyond free speech that are guaranteed at PK-12 U.S. public schools. We clarify when educators must attend to students’ unique needs, especially when courts have identified that certain students are members of protected classes. This article explains the overarching constitutional framework in which the U.S. Supreme Court has applied the 14th Amendment’s Equal Protection Clause to protect the rights of students to be free from invidious discrimination. We describe how modern U.S. courts apply levels of review, including strict scrutiny, intermediate scrutiny, and rational basis review to equal protection cases. We then synthesize federal statutory law and case law that protect students. Specifically, we discuss how Title VI of the Civil Rights Act of 1964 (Title VI 1964) prohibits discrimination based on race, color, ethnicity, national origin, language proficiency, and religion. Next, we delve into the recent changes relevant to the application of Title IX of the Education Amendments of 1972 (Title IX 1972) to students based on sex, sexual orientation, and gender identity. Our final focus covers students with disabilities, including medical conditions, who are protected by the Individuals with Disabilities Education Act (IDEA 1990) and Section 504 of the Rehabilitation Act (Section 504 1973). Full article

As with the progress of social sciences in which the notion of turn has gradually taken a central position in academic discourse, we have often seen the blended application of “paradigm shift talk” and “turn talk” to delineate the construction of progress in legal scholarship. Unlike “paradigm shift talk” that is based on the sufficient intellectual accumulation of understanding Kuhn’s paradigm theory, the connotations, as well as implications, of the notion of turn have been radically ignored in legal scholarship. Therefore, questions tackling turn’s underlying teleology, epistemology, methodology, and ethics are especially significant and indispensable. As a response, this article delves into the notion of turn in legal scholarship by mainly embedding it in a general context of the knowledge production of social sciences. It primarily argues that the notion of turn is more compatible with the construction of socio-legal knowledge than that of paradigm due to its interdisciplinary disposition. Accordingly, rather than maintaining the taken-for-granted status quo, legal scholars should pay heed to this compatibility in question and employ the notion of turn consciously and seriously. Full article

The aim of the article is to propose and defend a distinctively political reading of the European Convention of Human Rights. Drawing on a range of different sources, my core claim is that realistically construed considerations of political legitimacy, stemming from the institutional context within which ECtHR judges operate, can explain and justify a morally non-ideal understanding of Convention rights on the part of the Court. I call the kind of non-ideal reading of the ECHR that I defend ‘political’ because it results from distinctive concerns regarding the Court’s legitimacy in a wider context marked by the circumstances of politics, broadly understood. These concerns depend on apprehending the ECHR as a distinctive institutional-cum-legal regime or system whose stability has political underpinnings. Tackling them requires resorting to some form of political judgment aimed at working out how various normative parameters, including legitimacy and stability, interact with a morally ideal (or ‘first-best’) understanding of any given ECHR right. Full article

Since 1 December 2009, the time when the Treaty of Lisbon came into force, the Charter of Fundamental Rights of the European Union (hereinafter: the EU Charter, the Charter) has been formally included in the EU legal order as primary EU law [...] Full article