Laws — Open Access Journal

This article discusses the impact of incomplete tax transparency on tax evasion. While FATCA and CRS address some forms of tax evasion, tax evaders may still use other tax evasion opportunities. Anti-tax evasion measures might not be effective or cost-efficient if tax evaders can continue evading taxes through alternative tax evasion channels. Automatic exchange of information (AEOI) might also exacerbate the social harm from tax evasion if tax evaders take costly actions to avoid reporting. This article explores policy responses that could better address the problems created by incomplete tax transparency. Full article

In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems of their high, increasing and disproportionate use. We provide examples of human rights, indigenous and clinical effectiveness research that appear to be destabilising the existing mental health law framework. We argue assemblage theory (Deleuze & Guattari) is a useful theoretical tool to unpack the making and continued use of compulsory community treatment orders in the context of complex destabilising and stabilising influences. This is followed by an outline of the concept of assemblage with reference to the constructed scenario, focusing on processes, practices, places, types of knowledge, roles, documents and how they connect to produce certain effects that both enable and constrain participants’ actions. In the New Zealand context, we examine the potential for assemblage theory to generate new ways of thinking about compulsory mental health treatment in community settings by challenging perceived limitations and revealing opportunities for participants to act otherwise. We conclude with a proposal for further research shaped by this theory that explores the making of actual community treatment orders to reveal where there is potential to change existing relations towards more positive effects for participants. Full article

Sexual and reproductive health and rights have increasingly been recognized in the international arena, but their evolution and the definition of their scope and content have not been received without controversy. From population control to human rights, from demographers’ competence to governmental prerogative, from couples’ rights to universal rights, this article will present an overview of the evolution of sexual and reproductive rights in the international arena. The development of these rights cannot be read in isolation but must be analyzed together with the broader landscape that hosts social and political movements, ideologies, religions, and revolutions. Understanding sexual and reproductive health and rights as historical creations, rather than timeless givens, enables us to devise historically informed instruments and policies that are more likely to succeed. This article contributes to the scholarly literature by providing an overview of past trends and of the conditions under which they occurred. Retracing the history of these rights enables us to clarify the scope of the state’s obligations to realize the right to sexual and reproductive health, to improve monitoring opportunities, and to ensure accountability for violations. This article explores these (and forthcoming) developments contributing to identify the existing obligations, the relevant actors, and the challenges that lie ahead. Full article

This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of their original publication. It begins by conceptualizing each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to “things”. I adopt a broad use of the term of “right” and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favor of a further definitional model—in addition to Hohfeld’s scheme of opposites and correlatives—which focuses on the function of these conceptual rights. Finally, it sets out to provide a model of rights as forming a network within a given community and the exponential growth of “rights-connections” within an expanding community. This is used to frame responses to common criticisms of “rights talk” and the balance of benefits and burdens on account of such a rights network. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it “rights talk” is debased and impoverished. Full article

This article integrates three fields of study: the “regime politics” paradigm in law and courts, the “institutional change” approach in public policy, and the “unilateral presidency” literature. In doing so, we show how law, politics, and public policy are inextricably linked, and that researchers can borrow assumptions, methods, and theories from a variety of fields. We use Donald Trump’s early presidency to show how political actors (especially presidents) can use four different change strategies. In the case of Trump, we highlight: shifting of decision-making authority via insurrectionary displacement; the elimination of the individual mandate via subversive layering; a change in drone use policy via opportunistic conversion; and a gradual desensitization and change in school choice education policy via symbiotic drift. We conclude by offering lessons for all three literatures we incorporate, as well as a way forward for studying a presidential administration that many find difficult to analyze. Full article

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland’s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models. Full article

This article provides an overview of key issues and a focus on some of the most significant and important recent developments that should be given a high priority by university attorneys and higher education administrators and policymakers. It emphasizes the role that administrators responsible for facilitating or coordinating disability services on campus can play in ensuring that faculty members, staff members, and other administrators have the knowledge and tools to ensure access and also to avoid liability to the institution. Major changes in the Trump administration and Congress may signal changes that could affect disability discrimination issues on campus. These changes include changed regulatory guidance, reduced appropriations (including ripple effects from funding for veterans and vocational rehabilitation), and enforcement approaches. While repeal of the ADA is unlikely, regulatory activities might affect its impact. Full article

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater “justice for users” both in the realm of public law and private law. Full article

The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pokémon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners’ claims would be most analogous to asserting “a right not to be mapped.” However, there is not yet a “right not to be mapped” in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality. Full article

Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person’s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores the current debates in the literature and presents the findings of a small qualitative study that explored the experiences of people who had completed advance statements in Victoria, Australia. Data was collected through interviews with participants and analysis of their advance statement. Participants completed their advance statements for two main reasons; to authorise future treatment or to limit the power of their treating team. Participants also included non-treatment preferences that were linked to their recovery and pragmatic considerations, such as contact details and dietary requirements. Participants who had used their advance statement reported a lack of acceptance or inclusion from clinicians. Further consideration of the legal enforceability of advance statements is necessary, and if they are to continue to lack legal force, much work remains to be done to support acceptance by clinicians. Full article

Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the “meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.” We use the idea of legality to argue that, in matters of sexual assault and rape, the limits of the law extend beyond the courtroom. Rather than simply influencing or guiding only those who are willing to consult the law in their efforts to seek justice, laws and legal discourse have the potential to frame and constrain any attempt to discuss experiences of sexual violence. #MeToo and other forms of “consciousness-raising” for sexual violence highlight the limiting effects of law and legal discourse on public discussion of sexual violence. We find that, paradoxically, in the case of sexual violence law has the capacity to undermine the goals and benefits of consciousness-raising approaches, privatizing the experience of sexual assault and silencing its victims. Full article

Law and courts play a larger role in American policymaking than in similar countries—and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied—and important—effects of judicialized policymaking. Full article

What drives congressional choices to concentrate implementation authority for legislative enactments among relatively few bureaucratic institutions? And are increased levels of concentration in implementation power associated with intercameral ideological proximity in Congress? I theorize that greater ideological congruity between the House and Senate drives increased levels of concentration in delegated implementation authority to federal agencies. By examining every significant legislative enactment from 1947 to 2012 that delegates implementation responsibility to at least one federal agency, I consider the legislative dynamics of decisions regarding the range of institutions charged with policy implementation in the American administrative state. I find that increased concentration of implementation authority is associated with greater ideological congruence between pivotal members of the House and the Senate. These results suggest that the preferences of key officials in Congress contribute to defining the breadth of bureaucratic implementation authority in the federal policy process. Full article

Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter’s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances. Full article

Although there is no unequivocal evidence of genetic discrimination (GD), and despite laws that prohibit it, individuals confronted with genetic diseases still seem to be concerned. The aim of this study was to gain in-depth understanding of experiences and concerns in relation to possible genetic discrimination. This article presents an analysis of semi-structured interviews with 42 individuals who had or were at risk of breast and ovarian cancer (BRCA) or Huntington’s disease (HD) in Belgium. Even after regulation, individuals at risk of BRCA and HD express concerns about possible genetic discrimination. These concerns relate to direct forms of GD, for instance those related to insurance and employment. Individuals were often unclear about and wary of legislation. Importantly, concerns were also expressed as to more subtle and indirect forms of GD, e.g., in social relations, where individuals fear being treated ‘differently’ and unfairly. Our study demonstrates how these concerns emerge at particular moments in life and how levels and forms of concern are influenced by the specific genetic disorder. Worries concerning these more subtle forms of genetic discrimination are more difficult to protect by law. Current legislative efforts do not appear to be effective in alleviating concerns about genetic discrimination. These regulations seem to be unclear, some participants are unsure about their effectiveness and they do not succeed in incorporating all forms of genetic discrimination. Particularly challenging is how to address indirect forms of genetic discrimination. Full article

A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways focuses at the elite level—exploring how and why political actors and institutions opt for legal or administrative strategies for implementing different public policies—there is little research that examines public attitudes toward how policy is enforced in the U.S. Given that the public is a key partner in this process, this paper integrates public attitudes into the discussion, tapping into conceptions of “big government,” privatization, and the tort reform movement. Using original data from a series of vignette-based experiments included in the 2014 Cooperative Congressional Election Survey, we examine public preferences about how policy is regulated—by private citizens in the courts or by government officials in agencies—across a broad number of policy areas. We offer one of the first studies that adjudicates the boundaries of public attitudes on litigation and bureaucratic regulation in the U.S., offering implications for how elites might approach the design of policy implementation for different issue areas. Full article

The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court’s jurisprudence, relatively little attention has been devoted to the unique administrative aspects of the position that allow for strategic influence over political and legal outcomes. This article examines the role of the chief justice as the head of the Judicial Conference, which is the primary policy making body for federal courts in the United States. Specifically, I examine the degree to which Chief Justice Roberts has appointed members to the Conference’s rulemaking committees with a long-standing conservative legal goal in mind: constricting access to courts. By focusing on the 2015 amendments to the Federal Rules of Civil Procedure in particular, I show that Chief Justice Roberts’ sole discretion to appoint members to these committees constitutes a “purely procedural” role through which he has exercised extensive political power, blurring the line between “law” and “politics” to great effect. Full article

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates. Full article

Insurers typically argue that regulatory limits on their ability to use genetic tests will induce ‘adverse selection’; they say that this has disadvantages not just for insurers, but also for society as a whole. I argue that, even on its own terms, this argument is often flawed. From the viewpoint of society as a whole, not all adverse selection is adverse. Limits on genetic discrimination that induce the right amount of adverse selection (but not too much adverse selection) can increase ‘loss coverage’, and so make insurance work better for society as a whole. Full article