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Laws, Volume 11, Issue 5 (October 2022) – 15 articles

Cover Story (view full-size image): We study statistical aspects of the case of the British nurse Ben Geen, convicted for 17 attacks on his patients during December 2013–February 2014. We note parallels with the cases of nurses Lucia de Berk (the Netherlands) and Daniela Poggiali (Italy), in both of which an initial conviction for multiple murders of patients was overturned after the reopening of the case. We pay the most attention to the investigative processes by which data, and not just statistical data, are generated; namely, the identification of past cases in which the nurse under suspicion might have been involved. We argue that the investigation and prosecution of such cases are vulnerable to many cognitive biases and errors of reasoning in terms of uncertainty. View this paper
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Article
The Internet Archive and the National Emergency Library: Copyright Law and COVID-19
Laws 2022, 11(5), 79; https://doi.org/10.3390/laws11050079 - 19 Oct 2022
Viewed by 1985
Abstract
In the tradition of legal writing about landmark intellectual property cases, this paper provides an in-depth case study and analysis of an important copyright conflict during the COVID-19 crisis. The Internet Archive established the National Emergency Library to provide for access to knowledge [...] Read more.
In the tradition of legal writing about landmark intellectual property cases, this paper provides an in-depth case study and analysis of an important copyright conflict during the COVID-19 crisis. The Internet Archive established the National Emergency Library to provide for access to knowledge for those who were unable to access their usual libraries, schools, and educational institutions. In response, four large publishers have brought a copyright lawsuit against the Internet Archive, alleging both direct copyright infringement, as well as secondary copyright infringement. The Authors Guild has supported this action. Fearful of litigation, the Internet Archive has decided to close the National Emergency Library earlier than it anticipated. The litigation raises a range of issues in respect of copyright infringement, the defence of fair use, library exceptions, digital lending, and intermediary liability. The conflict also raises questions about the operation of the first sale doctrine in the digital era. There are also divided views as to what, if any, remedies are appropriate in the case over the Internet Archive and the National Emergency Library. It is argued that there needs to better mechanisms under copyright law to enable access to knowledge in a public health crisis—such as the coronavirus outbreak. This case study makes a significant contribution to our understanding of the relationship between authors, publishers, and libraries in the digital age. It also provides an insight into copyright litigation—in particular, the role of amicus curiae submissions, and the nature and scope of copyright exceptions. This paper also raises larger considerations about the intersection of copyright law with larger concerns about access to knowledge, competition policy, and public health emergencies. Full article
Article
Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal
Laws 2022, 11(5), 78; https://doi.org/10.3390/laws11050078 - 19 Oct 2022
Viewed by 427
Abstract
The quest for safe, orderly and regular migration underpins the UN Global Compact for Migration (GCM) and translates into “comprehensive and integrated” responses to large movements of refugees and migrants. The effort to de-compartmentalise the governance of cross-border human mobility through “comprehensiveness” shapes [...] Read more.
The quest for safe, orderly and regular migration underpins the UN Global Compact for Migration (GCM) and translates into “comprehensive and integrated” responses to large movements of refugees and migrants. The effort to de-compartmentalise the governance of cross-border human mobility through “comprehensiveness” shapes the overall search for greater policy coherence via regime interaction and shared responsibility within the GCM. A similar effort has been made at the EU level to overcome the “silos approach” characterising the distinct policies on migration, asylum, and border management. This parallelism is particularly meaningful as the reason is twofold: at the operational level, because of the role played by the EU in fashioning the cooperation models underpinning the GCM, which enhances the relevance of EU law and practice for the implementation of the GCM; at the normative level, because the GCM draws on four guiding principles—i.e., sovereignty, good governance, human-centricity, and the rule of law—which are also key features of the EU legal system. Departing from these premises, this article reveals the meaning of “comprehensive and integrated” responses to large movements of refugees and migrants in the GCM and EU border policies. It does so in order to provide a critical appraisal of the legal and policy implications of comprehensive approaches in the global and European governance of cross-border human mobility. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
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Article
Implementation of Good Practices in Environmental Licensing Processes
Laws 2022, 11(5), 77; https://doi.org/10.3390/laws11050077 - 12 Oct 2022
Viewed by 532
Abstract
One of the main command and control mechanisms for the environment is the environmental licensing process. However, the isolated adoption of this mechanism has not satisfactorily ensured the environmental quality of natural resources. On the other hand, an increasing number of organizations are [...] Read more.
One of the main command and control mechanisms for the environment is the environmental licensing process. However, the isolated adoption of this mechanism has not satisfactorily ensured the environmental quality of natural resources. On the other hand, an increasing number of organizations are voluntarily adhering to good environmental practices. As a result, approximating the relationship between command and control instruments (state regulation) and good practices becomes increasingly important for improving the environmental performance of organizations. Within this context, the present work proposes to evaluate how good environmental practices can strengthen and advance current environmental licensing models adopted in South America. This research consists of an exploratory case study, conducted with a qualitative approach. Several countries in South America were evaluated because of the great natural resources that the region has, as well as the European Economic Community, due to their adoption of the so-called “best available techniques” of environmental management since 1996. The results of the study indicated that voluntary adherence to international environmental management standards has evolved in the analyzed countries and that environmental agencies in South American countries could establish legal bases to consolidate the inclusion of good environmental practices in environmental licensing processes. It was also observed that some benefits could be given to organizations that implement good environmental practices, such as granting of licenses with extended terms; debureaucratization (with time gain) of administrative procedures; exemption or reduction of fees; and facilitation of financing. This study could thus support debates for the effective advancement of the current environmental licensing model. However, this hypothesis must be evaluated and consolidated through further research, carried out individually for each country analyzed. Full article
(This article belongs to the Special Issue Environmental Law)
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Article
Legal Analogy in the Cases of Overcoming a Contract’s Verbal and Numerical Ambiguity
Laws 2022, 11(5), 76; https://doi.org/10.3390/laws11050076 - 12 Oct 2022
Viewed by 428
Abstract
The relevance of the research stems from the wider spread of contract conflicts and legal disputes caused by verbal and numerical ambiguity of certain contract terms, given the absence of a special legislative rule to overcome such ambiguities. The work aims to identify [...] Read more.
The relevance of the research stems from the wider spread of contract conflicts and legal disputes caused by verbal and numerical ambiguity of certain contract terms, given the absence of a special legislative rule to overcome such ambiguities. The work aims to identify and evaluate the most effective law enforcement methods of overcoming the discrepancy of the notations of quantitative values in a contract that is expressed with words and numbers. Research methods included a special technical–legal toolkit, including methods of analogy and legal modeling, civil doctrine means of analysis and synthesis, induction, and deduction, as well as comparison and generalization. As a result, the paper refutes the universal character of the analogy of law as a method of overcoming legal gaps in the area under study. At the same time, the active and positive role of analogy as a part of other methods of interpretation of ambiguous contractual provisions, such as literal interpretation, combination of textual and contextual interpretations, and its appeal to tradition, isshown. The significance of the work lies not only in its ability to orient lawyers and practitioners in a set of different options to overcome the verbal and numerical ambiguity of the contracts but also to indicate ways to solve common problems associated with the ambiguities and incompleteness that come with the contractual terms. Full article
Article
A Regulatory Perspective on the Actual Challenges for the European Deposit Insurance Scheme
Laws 2022, 11(5), 75; https://doi.org/10.3390/laws11050075 - 02 Oct 2022
Viewed by 402
Abstract
The European financial regulation is evolving with new and specific forms of cooperation for the member states, enhancing concepts and innovative rule of law, particularly featuring the actual level of harmonization. This paper investigates the European deposit insurance scheme, in the context of [...] Read more.
The European financial regulation is evolving with new and specific forms of cooperation for the member states, enhancing concepts and innovative rule of law, particularly featuring the actual level of harmonization. This paper investigates the European deposit insurance scheme, in the context of the European law development, in reply to the current economic and social challenges and in accordance with the principles of the free market. The methods of research include a theoretical investigation of the relevant literature, a comparison of the proposed regulation and regulation in force, synthesis, and deduction. The research results are based on the assessment of the progress of negotiation in building efficient mechanisms to stimulate money saving conduct for individuals and legal persons, globally and within the European Union. Acknowledging the status of the three pillars of the European banking union legislative package, the member states have unanimously agreed that the framework established by the Directive from 2014 needed a bracing approach, to ensure more protection and to support enhanced financial integration. The analysis carried out showed the importance of the European deposit insurance scheme in the context of the present global challenges. The money saving conduct was strongly influenced by the regulation for the deposit guarantee mechanism, while the tight estimated agenda for the final regulatory proposal asks for ingenious cooperation to reach a consensus within members states. The research showed the imperative to build common legislation for the member states and a future direction of investigation to evaluate the effects of the gap between the domestic regulation and milestone generated by the European directives in each state legal framework. Full article
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Article
Questioning Strict Separationism in Unsettled Times: Rethinking the Strict Separation of Church and State in United States Constitutional Law
Laws 2022, 11(5), 74; https://doi.org/10.3390/laws11050074 - 30 Sep 2022
Viewed by 423
Abstract
Contemporary case law in the United States surrounding the establishment clause of the federal Constitution has entered a period of remarkable uncertainty. Now is an appropriate time to revisit the legal foundations of the Supreme Court’s seminal cases of Everson v. Board of [...] Read more.
Contemporary case law in the United States surrounding the establishment clause of the federal Constitution has entered a period of remarkable uncertainty. Now is an appropriate time to revisit the legal foundations of the Supreme Court’s seminal cases of Everson v. Board of Education (1947) and McCollum v. Board of Education (1948). These cases initiated the Court’s strict separationist construction of the establishment clause. In response to critics who see these cases as without judicial warrant, I argue that the holdings rest on a particular form of substantive due process. Further, I defend the methodology the Court deploys in these cases. Recognizing the legal foundations of Everson and McCollum and the tenability of the method the Court deploys in these cases improves our understanding of important Supreme Court case law. However, it also highlights new lines of critique of the Court’s strict separationist jurisprudence—a conclusion especially relevant today, given the Court’s willingness to revise long-standing precedents. Full article
Article
Introduction of the First AI Impact Assessment and Future Tasks: South Korea Discussion
Laws 2022, 11(5), 73; https://doi.org/10.3390/laws11050073 - 29 Sep 2022
Viewed by 582
Abstract
South Korea introduced the artificial intelligence impact assessment and was the first case of introducing the artificial intelligence impact assessment as national-level legislation. Artificial intelligence impact assessments will be helpful in deciding whether to introduce artificial intelligence by comparing costs and benefits. However, [...] Read more.
South Korea introduced the artificial intelligence impact assessment and was the first case of introducing the artificial intelligence impact assessment as national-level legislation. Artificial intelligence impact assessments will be helpful in deciding whether to introduce artificial intelligence by comparing costs and benefits. However, South Korea’s approach had limitations. First, an impact assessment was introduced only in the public sector. Second, artificial intelligence impact assessments were voluntary. Third, the subject of artificial intelligence impact assessments was limited to society. Fourth, it is necessary to establish a relationship with other impact assessments. Fifth, specific details were incomplete. Full article
Article
Restorative Practice and Therapeutic Jurisprudence in Court: A Case Study of Teesside Community Court
Laws 2022, 11(5), 72; https://doi.org/10.3390/laws11050072 - 15 Sep 2022
Viewed by 465
Abstract
This article examines the contribution of restorative practice and therapeutic jurisprudence in community courts, which have adopted a problem-solving approach. Through interviews with stakeholders, it explores the implementation of the community court model in Teesside. This work draws from a broader study in [...] Read more.
This article examines the contribution of restorative practice and therapeutic jurisprudence in community courts, which have adopted a problem-solving approach. Through interviews with stakeholders, it explores the implementation of the community court model in Teesside. This work draws from a broader study in Middlesbrough, which adopted a case study design, to profile the local community and to present experiences of community justice, including the community court. For this article, there is a specific focus on the data collected from those working in the community court and in partnership with it. The findings demonstrate both the benefits and challenges of courts adopting problem-solving approaches. There was clear support among magistrates who recognised the value of doing justice differently, to more effectively dealing with re-offending. Among all participants, positive experiences and outcomes were reported, alongside acknowledgement of the logistical and political challenges associated with implementing innovations in criminal justice. This included negative media representations and a lack of investment to sustain the change in practice. Participants across the sample emphasised the importance of adopting a different ethos, aligning with restorative practice and therapeutic jurisprudence and shifting away from adversarial approaches to present a more effective response to the problem of crime. Full article
Article
People’s Attitudes towards Technologies in Courts
Laws 2022, 11(5), 71; https://doi.org/10.3390/laws11050071 - 14 Sep 2022
Viewed by 556
Abstract
Courts are high-stakes environments; thus, the impact of implementing legal technologies is not limited to the people directly using the technologies. However, the existing empirical data is insufficient to navigate and anticipate the acceptance of legal technologies in courts. This study aims to [...] Read more.
Courts are high-stakes environments; thus, the impact of implementing legal technologies is not limited to the people directly using the technologies. However, the existing empirical data is insufficient to navigate and anticipate the acceptance of legal technologies in courts. This study aims to provide evidence for a technology acceptance model in order to understand people’s attitudes towards legal technologies in courts and to specify the potential differences in the attitudes of people with court experience vs. those without it, in the legal profession vs. other, male vs. female, and younger vs. older. A questionnaire was developed, and the results were analyzed using partial least squares structural equation modeling (PLS-SEM). Multigroup analyses have confirmed the usefulness of the technology acceptance model (TAM) across age, gender, profession (legal vs. other), and court experience (yes vs. no) groups. Therefore, as in other areas, technology acceptance in courts is primarily related to perceptions of usefulness. Trust emerged as an essential construct, which, in turn, was affected by the perceived risk and knowledge. In addition, the study’s findings prompt us to give more thought to who decides about technologies in courts, as the legal profession, court experience, age, and gender modify different aspects of legal technology acceptance. Full article
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Article
Gender and Sentencing in Lithuania: More Mercy for Women?
Laws 2022, 11(5), 70; https://doi.org/10.3390/laws11050070 - 08 Sep 2022
Viewed by 472
Abstract
This article focuses on the structure of female and male crimes and gender disparities in sentencing in Lithuania, which present a significant gap in criminological research. Using Lithuanian court decisions on five types of offenses—murder, grievous bodily harm, actual bodily harm, drug distribution, [...] Read more.
This article focuses on the structure of female and male crimes and gender disparities in sentencing in Lithuania, which present a significant gap in criminological research. Using Lithuanian court decisions on five types of offenses—murder, grievous bodily harm, actual bodily harm, drug distribution, and theft—we attempt to answer whether women are punished more leniently than men. Our research demonstrates that gender is a significant factor only in some sentences. Only the length of a prison sentence showed a statistically significant difference. When the importance of legal and extralegal factors in imposing prison length is compared, legal factors are found to be more significant predictors. The prison sentence length was mainly affected by the presence of a prior conviction, additional charges, and mitigating and aggravating circumstances. Although the average prison sentence for men in cases of grievous bodily harm and drug distribution was significantly longer than for women, the regression models developed for each offence type revealed that neither gender nor other extralegal factors appeared to be significant in determining the length of the prison sentence. The results allow us to argue that future research should focus more on analyzing extralegal factors and judges’ motives in discretionary sentencing decisions. Full article
(This article belongs to the Section Law and Gender Issues)
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Article
The Causes of Police Corruption and Working towards Prevention in Conflict-Stricken States
Laws 2022, 11(5), 69; https://doi.org/10.3390/laws11050069 - 30 Aug 2022
Viewed by 762
Abstract
The police are the initial faces of law enforcement and commence the criminal justice process and thus hold significant responsibility for functioning law and order. As key representatives of the state, the integrity of the police in all societies is pivotal to retain [...] Read more.
The police are the initial faces of law enforcement and commence the criminal justice process and thus hold significant responsibility for functioning law and order. As key representatives of the state, the integrity of the police in all societies is pivotal to retain public trust in the rule of law and the preservation of internal security. When police corruption is exposed or is perceived by the public to be prevalent, confidence in and communal relations with the police force become disjointed. Poor credibility of the police also negatively impacts on the legitimacy of the government. Negative public perceptions of both the police and government are particularly troublesome in violently divided societies or states undergoing armed conflict. The article focuses on the main causes and consequences of police corruption in hostile environments to introduce a range of prevention strategies to combat it and restore public confidence in policing and governance. The article suggests that a holistic anticorruption strategy, rather than a linear one, has the potential to raise awareness, increase pay to deter petty forms of corruption, install independent anticorruption agencies, and periodically rotate police officers to increase police integrity and loyalty for the host country. It is recommended that these multifaceted prevention strategies are needed within a police force that is faced with a violently divided society to reaffirm public support and deter support for armed anti-governmental oppositional groups. Full article
(This article belongs to the Special Issue Police Corruption Prevention in Post-Conflict Societies)
Article
UN MTC Article 26: Inequitable Exchange of Information Regime—Questionable Efficacy in Asymmetrical Bilateral Settings
Laws 2022, 11(5), 68; https://doi.org/10.3390/laws11050068 - 29 Aug 2022
Viewed by 499
Abstract
The United Nations Model Tax Convention between Developed and Developing Countries (UN MTC) Article 26 charts out an exchange of information (EOI) regime “between developed and developing countries”, feigning that it is more favorable to the latter set of nations. Contrarily, the Organization [...] Read more.
The United Nations Model Tax Convention between Developed and Developing Countries (UN MTC) Article 26 charts out an exchange of information (EOI) regime “between developed and developing countries”, feigning that it is more favorable to the latter set of nations. Contrarily, the Organization for Economic Cooperation and Development (OECD) MTC Article 26, is professedly geared to protect and promote interests of OECD members—“the club of the rich”. Even a cursory comparative look at the two MTCs intriguingly reveals a lack of dissimilarities, and irresistibly leads to the conclusion that, materially, both provisions are identical. The situation gives rise to a paradox, whereby developing countries that are completely at different levels of development have broken governance structures, convoluted fiscal and criminal justice systems, and struggling tax administrations, and have been yoked into a multilayered EOI regime, which stemmed from an intra-OECD statecraft imperative, and is pre-dominantly beneficial to developed countries. The new normal contributes towards enhancement and deepening of the embedded inequities in the neocolonial economic order. The paper seminally dissects the strains generated by absence of dissimilarities between the two MTCs vis-à-vis Article 26, and posits that, in fact, this fundamentally being a developed country project, developing countries have been exploited as ‘beasts of burden’ merely to promote the economic interests of dominant partners in the relationship, and by doing so, sheds light on and galvanizes the unjustness latent in the international taxes system—an inherently unequal and lopsided affair. It also delves deeper into an axiological normative evaluation of the extant EOI regime, and finding it untenable, urges a larger paradigm shift. In fact, the UN’s meek convergence with the OECD on EOI regime, ditching developing countries and leaving them to fend for themselves in this critical area of international taxation, is the scarlet thread of the paper. Full article
Article
Effective Public Administration as a Tool for Building Smart Cities: The Experience of the Slovak Republic
Laws 2022, 11(5), 67; https://doi.org/10.3390/laws11050067 - 25 Aug 2022
Cited by 1 | Viewed by 578
Abstract
This study focuses on examining the requirements forming the concept of the right to effective administration in relation to the communication of local governments with their residents. We pay attention to the electronization of public administration and the ambition to strengthen it through [...] Read more.
This study focuses on examining the requirements forming the concept of the right to effective administration in relation to the communication of local governments with their residents. We pay attention to the electronization of public administration and the ambition to strengthen it through public participation in decision making concerning important matters of self-government, as the implementation of effective public administration is linked to the right management approach. In the first part of the study, we analyze European jurisprudence and legislation, and we further address the question of how the European concept of local government influences the communication of local authorities with their inhabitants in relation to the realization of the means of direct democracy. We focus our attention on the current state of the electronization of public administration and its development, including cyber security. The main goal of this study is to use critical analysis to assess the legal regulation of the activities of the Slovak public administration. In addition to the main goal, we also have several sub-goals, such as making a comparison of the development of the electronization of public administration in the countries of the former Czechoslovakia. Especially with the use of critical analysis and other scientific methods of investigation, we look for and find answers to selected application problems from practice. We also use scientific and doctrinal interpretation as well as scientific literature and jurisprudence. As a result of our study, recommendations are made to ensure the more efficient functioning of smart cities in the Slovak Republic. Full article
Article
Amor Fati: On ‘Crimes of Passion’ in Portuguese Law
Laws 2022, 11(5), 66; https://doi.org/10.3390/laws11050066 - 25 Aug 2022
Viewed by 650
Abstract
The timelessness of the matters of love and heartbreak is evident from the place that these themes have historically held in the literature. Fictional representations of love and estrangement are frequently recovered within legal reasoning, because of the nature of the stories portrayed, [...] Read more.
The timelessness of the matters of love and heartbreak is evident from the place that these themes have historically held in the literature. Fictional representations of love and estrangement are frequently recovered within legal reasoning, because of the nature of the stories portrayed, or the ethical-normative judgements and frames of reference on which their literary enunciation is based. In the field of law, the formal structuring of these matters and its penal relevance draw on ‘crimes of passion’ as an example and a sign of the legal conditions, interpretative constructs, and sociological conceptions that organize and give meaning to subjects, facts, and norms. Whether it is the cause that justifies the fact, a mitigating factor that modifies the crime or punishment, or a particularly reprehensible and perverse circumstance, this ‘crazy little thing called love’ has provoked and shaped different levels of censure and comprehension throughout history. That very elasticity is the starting point for this article, which examines the legal frameworks and the legal, literary, and historical imaginations that circulate and connect diverse interpretative communities, as well as the discursive debates over authority and normativity, in the different fictions and functions linked by their aspiration to truth and justice. Full article
Article
Statistical Issues in Serial Killer Nurse Cases
Laws 2022, 11(5), 65; https://doi.org/10.3390/laws11050065 - 23 Aug 2022
Viewed by 916
Abstract
We study statistical aspects of the case of the British nurse Ben Geen, convicted of 2 counts of murder and 15 of grievous bodily harm following events at Horton General Hospital (in the town of Banbury, Oxfordshire, UK) during December 2013–February 2014. We [...] Read more.
We study statistical aspects of the case of the British nurse Ben Geen, convicted of 2 counts of murder and 15 of grievous bodily harm following events at Horton General Hospital (in the town of Banbury, Oxfordshire, UK) during December 2013–February 2014. We draw attention to parallels with the cases of nurses Lucia de Berk (the Netherlands) and Daniela Poggiali (Italy), in both of which an initial conviction for multiple murders of patients was overturned after the reopening of the case. We pay most attention to the investigative processes by which data, and not just statistical data, is generated; namely, the identification of past cases in which the nurse under suspicion might have been involved. We argue that the investigation and prosecution of such cases are vulnerable to many cognitive biases and errors of reasoning about uncertainty, exacerbated by the fact that fact-finders have to determine not only whether a particular person was guilty of certain crimes, but whether any crimes were committed by anybody at all. The paper includes some new statistical findings on the Ben Geen case and suggests further avenues for investigation. The experiences recounted here have contributed to the writing of the handbook Healthcare Serial Killer or Coincidence? Statistical Issues in Investigation of Suspected Medical Misconduct, Royal Statistical Society, London, 2022. Full article
(This article belongs to the Section Criminal Justice Issues)
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