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Editor’s Choice Articles

The Editor’s Choice articles are those five Laws articles with the highest citation rate and most views, published during the one calendar year four years previously. These metrics are indicative of interest to readers and importance within the legal/justice research area.

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49 pages, 537 KiB  
Review
Adolescent Capacity to Consent to Participate in Research: A Review and Analysis Informed by Law, Human Rights, Ethics, and Developmental Science
by Ben Mathews
Laws 2023, 12(1), 2; https://doi.org/10.3390/laws12010002 - 23 Dec 2022
Cited by 27 | Viewed by 24436
Abstract
Contemporary societies pose major challenges for adolescents and it is essential to conduct research with them to understand their experiences, identify their needs, and discover solutions to major social problems. Social science, humanities and health-related research into violence, technology, and climate change exemplify [...] Read more.
Contemporary societies pose major challenges for adolescents and it is essential to conduct research with them to understand their experiences, identify their needs, and discover solutions to major social problems. Social science, humanities and health-related research into violence, technology, and climate change exemplify vital research endeavours requiring adolescent participation to advance Sustainable Development Goals and enhance individual lived experience and societal flourishing for current and future generations. International and national research ethics guidelines emphasise the necessity to conduct research to advance societal benefit, while upholding principles of autonomy and justice, and promoting participant welfare and avoiding harm. International human rights instruments promote adolescents’ freedom of expression and right to participate in matters affecting them. The rapid generation of robust research findings is essential, but it remains commonly assumed that adolescents cannot provide their own consent to participate in research studies, and the belief that parental consent is required can impede and impair the entire research process. Debate continues about the proper interpretation of legal principles and research ethics guidelines about who may provide consent. Continuing confusion about who must provide consent, and why, impedes the protection of adolescents’ interests and the advancement of society. This article adds to knowledge by providing a multidisciplinary overview of evidence from developmental science, social science, law, human rights, and bioethics about decision-making capacity and entitlements in the context of research participation, and an updated evidence-based analysis of adolescents’ capacity to provide their own consent to participate in social, humanities and health-related research. A conservative application of knowledge from these domains both individually and collectively supports conclusions that adolescents aged 16 are able to provide their own consent to participate in research, and no legal or ethical principle requires the provision of parental consent on their behalf. Practical considerations may support parental involvement in conversations about participation, and some types of research require trauma-informed approaches, but adolescents are developmentally, legally and ethically entitled to make their own decision about whether or not to participate. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
19 pages, 357 KiB  
Article
The Causes of Police Corruption and Working towards Prevention in Conflict-Stricken States
by Danny Singh
Laws 2022, 11(5), 69; https://doi.org/10.3390/laws11050069 - 30 Aug 2022
Cited by 24 | Viewed by 110491
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)
12 pages, 247 KiB  
Article
Can Restorative Justice Provide a Better Outcome for Participants and Society than the Courts?
by Liam J. Leonard
Laws 2022, 11(1), 14; https://doi.org/10.3390/laws11010014 - 14 Feb 2022
Cited by 9 | Viewed by 13900
Abstract
This article will examine understandings that underpin restorative justice outcomes for participants in order to propose that restorative justice conferences may provide better outcomes for participants than the formal courts of the criminal justice system. The analysis will attempt to shed light on [...] Read more.
This article will examine understandings that underpin restorative justice outcomes for participants in order to propose that restorative justice conferences may provide better outcomes for participants than the formal courts of the criminal justice system. The analysis will attempt to shed light on the benefits of the restorative justice conferencing process. These benefits will be shown to include positive individual and community outcomes, which ‘restore’ participants in a manner which may be closer to concepts of ‘justice’ than the formal court process. Full article
(This article belongs to the Special Issue Advancing Restorative Justice in Criminal Justice Settings and Beyond)
13 pages, 314 KiB  
Article
Nudging and Other Behaviourally Based Policies as Enablers for Environmental Sustainability
by Marta Santos Silva
Laws 2022, 11(1), 9; https://doi.org/10.3390/laws11010009 - 25 Jan 2022
Cited by 12 | Viewed by 9583
Abstract
Recent years have shown that traditional regulatory techniques alone are not effective in achieving behaviour change in important fields such as environmental sustainability. Governments all over the world have been progressively including behaviourally informed considerations in policy and law making with the aim [...] Read more.
Recent years have shown that traditional regulatory techniques alone are not effective in achieving behaviour change in important fields such as environmental sustainability. Governments all over the world have been progressively including behaviourally informed considerations in policy and law making with the aim of improving the acceptance and impact of sustainability-oriented measures. This led to the arrival of alternative regulatory tools, such as nudges. The effectiveness of nudges for environmental sustainability (green nudges) has been widely reported, but the practical and ethical implications are still largely neglected by academic research. In this contribution, “nudges” are conceptually distinguished from “boosts” and their ethics are briefly explained. The analysis is made in light of European and US American academic literature. Full article
(This article belongs to the Special Issue Facilitating Sustainable Consumption through Private Law)
27 pages, 892 KiB  
Article
The Challenges of Political Corruption in Australia, the Proposed Commonwealth Integrity Commission Bill (2020) and the Application of the APUNCAC
by Marie J. dela Rama, Michael E. Lester and Warren Staples
Laws 2022, 11(1), 7; https://doi.org/10.3390/laws11010007 - 13 Jan 2022
Cited by 11 | Viewed by 14961
Abstract
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) [...] Read more.
Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) and addressing them against the proposed Commonwealth Integrity Commission (CIC) 2020 bill. It also discusses prevalent ‘grey’ areas of Australian politically-corrupt behavior where they interact with the private sector: the revolving door, political donations, and lobbying; and the state of Australia’s implementation of the OECD Anti-Bribery Convention. This article argues for their inclusion within the mandated scope of the proposed CIC. There is a need for strong legislation, both domestic and international, to fight corruption. This article then discusses the application of the provisions of the draft Anticorruption Protocol to the UN Convention Against Corruption (APUNCAC) that may apply with respect to these ‘grey’ issues, and how an International Anti-Corruption Court may provide another institutional model for Australia to follow. Finally, this article links these proposals to the 2021 UN General Assembly Special Session (UNGASS) on Corruption and the 9th Conference of States Parties on the UNCAC (COSP9). These events illustrate multilateral momentum and progress on anti-corruption. As a country that has historically supported the UN multilateral framework and its institutions, this article recommends a proactive approach for Australia so that the passing of a strong domestic anticorruption initiative will contribute to the adoption, and eventual ratification, of the APUNCAC. Full article
(This article belongs to the Special Issue The Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC))
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18 pages, 329 KiB  
Article
Medical Applications of Artificial Intelligence (Legal Aspects and Future Prospects)
by Vasiliy Andreevich Laptev, Inna Vladimirovna Ershova and Daria Rinatovna Feyzrakhmanova
Laws 2022, 11(1), 3; https://doi.org/10.3390/laws11010003 - 29 Dec 2021
Cited by 21 | Viewed by 10532
Abstract
Background: Cutting-edge digital technologies are being actively introduced into healthcare. The recent successful efforts of artificial intelligence in diagnosing, predicting and studying diseases, as well as in surgical assisting demonstrate its high efficiency. The AI’s ability to promptly take decisions and learn independently [...] Read more.
Background: Cutting-edge digital technologies are being actively introduced into healthcare. The recent successful efforts of artificial intelligence in diagnosing, predicting and studying diseases, as well as in surgical assisting demonstrate its high efficiency. The AI’s ability to promptly take decisions and learn independently has motivated large corporations to focus on its development and gradual introduction into everyday life. Legal aspects of medical activities are of particular importance, yet the legal regulation of AI’s performance in healthcare is still in its infancy. The state is to a considerable extent responsible for the formation of a legal regime that would meet the needs of modern society (digital society). Objective: This study aims to determine the possible modes of AI’s functioning, to identify the participants in medical-legal relations, to define the legal personality of AI and circumscribe the scope of its competencies. Of importance is the issue of determining the grounds for imposing legal liability on persons responsible for the performance of an AI system. Results: The present study identifies the prospects for a legal assessment of AI applications in medicine. The article reviews the sources of legal regulation of AI, including the unique sources of law sanctioned by the state. Particular focus is placed on medical-legal customs and medical practices. Conclusions: The presented analysis has allowed formulating the approaches to the legal regulation of AI in healthcare. Full article
22 pages, 2326 KiB  
Article
Digital Transformation and Artificial Intelligence Applied to Business: Legal Regulations, Economic Impact and Perspective
by Ricardo Francisco Reier Forradellas and Luis Miguel Garay Gallastegui
Laws 2021, 10(3), 70; https://doi.org/10.3390/laws10030070 - 27 Aug 2021
Cited by 47 | Viewed by 18580
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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29 pages, 476 KiB  
Article
Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy
by Elizabeth A. Sharrow
Laws 2021, 10(3), 63; https://doi.org/10.3390/laws10030063 - 31 Jul 2021
Cited by 59 | Viewed by 29960
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)
22 pages, 460 KiB  
Article
Why We Need a National CROWN Act
by Saran Donahoo
Laws 2021, 10(2), 26; https://doi.org/10.3390/laws10020026 - 12 Apr 2021
Cited by 10 | Viewed by 11721
Abstract
Discrimination and intersecting forms of oppression directed at Black women influence how they look, live, work, interact with others, and even view their bodies and identities. Black hair has been and remains a target of this discrimination and oppression by obligating Black women [...] Read more.
Discrimination and intersecting forms of oppression directed at Black women influence how they look, live, work, interact with others, and even view their bodies and identities. Black hair has been and remains a target of this discrimination and oppression by obligating Black women to strive toward White beauty norms. Still under consideration in several states, the Creating a Respectful and Open World for Natural Hair (CROWN) Act provides a legislative intervention to protect Black women (and men) from hair discrimination at work, during school, and as they go about their daily lives. This article examines the politics affecting Black hair. The data for this study came from semi-structured interviews with 22 Black women who define their hair as natural. The results indicate that racial history and stereotypes continue to create unachievable standards for Black hair; that Black women continue to encounter discrimination when embracing their natural hair; and that wearing Black natural hair is often an uplifting decision for the women who elect to do so. The fact that others continue to challenge and discriminate against Black natural in multiple venues confirms the need for a national CROWN Act. Full article
(This article belongs to the Special Issue The Body Politic: Women’s Bodies and Political Conflict)
9 pages, 1944 KiB  
Article
Legaltech and Lawtech: Global Perspectives, Challenges, and Opportunities
by Esther Salmerón-Manzano
Laws 2021, 10(2), 24; https://doi.org/10.3390/laws10020024 - 9 Apr 2021
Cited by 17 | Viewed by 15451
Abstract
Legaltech refers to the application of new technologies to the world of law, to carry out tasks that, until recently, were performed by lawyers or other personnel working in law firms. From 2015 onwards the Lawtech alternative has emerged. In this work, the [...] Read more.
Legaltech refers to the application of new technologies to the world of law, to carry out tasks that, until recently, were performed by lawyers or other personnel working in law firms. From 2015 onwards the Lawtech alternative has emerged. In this work, the concepts of Legaltech and Lawtech have been analyzed by searching the two main scientific information databases such as Scopus and Wed of Science (WoS). There has been a clear trend to use the concept of Legaltech against Lawtech. Six clear research lines have been detected from the whole of the published documents regarding these concepts. These are the related to Computer Science, Justice, Legal profession, Legal design, Law firms, and Legal Education. It is proposed to use the term Legaltech to include all technological advances in the legal field. From the point of view of opportunities, the irruption of Legaltech will be able to offer accurate legal advice to the public, reducing the price of this and on the other hand, analyze large amounts of data that law firms and legal advisors will use to improve their management and increase their productivity. In short, Legaltech and Lawtech are opening up new opportunities in the legal sector encouraging technological innovation, giving greater access to legal services, even try to achieve the goal of universal access to justice. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
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30 pages, 298 KiB  
Article
Certainty and Uncertainty in Tax Law: Do Opposites Attract?
by Alexander V. Demin
Laws 2020, 9(4), 30; https://doi.org/10.3390/laws9040030 - 4 Dec 2020
Cited by 9 | Viewed by 15267
Abstract
The principle of certainty of taxation is the dimension of a general requirement of certainty in the legal system. The purpose of this article is to argue the thesis that uncertainty in tax law is not always an absolute evil, sometimes it acts [...] Read more.
The principle of certainty of taxation is the dimension of a general requirement of certainty in the legal system. The purpose of this article is to argue the thesis that uncertainty in tax law is not always an absolute evil, sometimes it acts as a means of the most optimal (and in some cases the only possible) settlement of relations in the field of taxes. On the contrary, uncertainty and fragmentation in tax law are colossal problems subject to overcome by the efforts of scientists, legislators, judges, and practicing lawyers. Uncertainty in tax law is manifested in two ways: on the one hand, negatively—as a defect (omission) of the legislator and, on the other hand, positively—as a set of specific legal means and technologies that are purposefully used in lawmaking and law enforcement. In this context, relatively determined legal tools are an effective channel for transition from uncertainty to certainty in the field of taxation. A tendency towards increased use of relatively determined legal tools in lawmaking processes (for example, principles, evaluative concepts, judicial doctrines, standards of good faith and reasonableness, discretion, open-ended lists, recommendations, framework laws, silence of the law, presumptive taxation, analogy, etc.), and involving various actors (courts, law enforcement agencies and officials, international organizations, citizens, organizations and their associations) allow making tax laws more dynamic flexible, and adequate to changing realities of everyday life. Full article
(This article belongs to the Special Issue Legal-Economic Issues of Digital & Collaborative Economy)
19 pages, 267 KiB  
Article
“Our Laws Have Not Caught up with the Technology”: Understanding Challenges and Facilitators in Investigating and Prosecuting Child Sexual Abuse Materials in the United States
by Olivia Cullen, Keri Zug Ernst, Natalie Dawes, Warren Binford and Gina Dimitropoulos
Laws 2020, 9(4), 28; https://doi.org/10.3390/laws9040028 - 26 Nov 2020
Cited by 23 | Viewed by 14104
Abstract
With technological advances, the creation and distribution of child sexual abuse material (CSAM) has become one of the fastest growing illicit online industries in the United States. Perpetrators are becoming increasingly sophisticated and exploit cutting-edge technology, making it difficult for law enforcement to [...] Read more.
With technological advances, the creation and distribution of child sexual abuse material (CSAM) has become one of the fastest growing illicit online industries in the United States. Perpetrators are becoming increasingly sophisticated and exploit cutting-edge technology, making it difficult for law enforcement to investigate and prosecute these crimes. There is limited research on best practices for investigating cases of CSAM. The aim of this research was to understand challenges and facilitators for investigating and prosecuting cases of CSAM as a foundation to develop best practices in this area. To meet these objectives, qualitative interviews and focus groups were conducted with participants throughout the western United States. Two major themes arose from this research: Theme 1: Challenges to investigating and prosecuting CSAM; and Theme 2: Facilitators to investigating and prosecuting CSAM. Within Theme 1, subthemes included technology and internet service providers, laws, lack of resources, and service provider mental health and well-being. Within Theme 2, subthemes included multidisciplinary teams and training. This research is a first step in understanding the experiences of law enforcement and prosecutors in addressing CSAM. Findings from this study can be used to support the development of best practices for those in the justice system investigating and prosecuting CSAM. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
23 pages, 279 KiB  
Article
Digitalization of the Legal Field and the Future of Large Law Firms
by Salvatore Caserta
Laws 2020, 9(2), 14; https://doi.org/10.3390/laws9020014 - 21 Jun 2020
Cited by 22 | Viewed by 16076
Abstract
This paper discusses how large law firms should re-organize themselves to maintain a competitive edge in the increasingly digitalized legal field. While providing a brief historical introduction to the rise of large law firms and the challenges posed by the rise of digital [...] Read more.
This paper discusses how large law firms should re-organize themselves to maintain a competitive edge in the increasingly digitalized legal field. While providing a brief historical introduction to the rise of large law firms and the challenges posed by the rise of digital capitalism and the gig economy, the paper proposes an original and radical approach to reforming large law firms in the light of the digitalization. Among other things, the paper discusses (I) the partnership as organizational tool for large law firms in an increasingly digital and agile legal field; (II) the importance of multidisciplinary practices and of the relationship between lawyers and non-lawyers within firms; and (III) the centrality of outsourcing strategies to legal tech companies and other actors in order to deliver legal services more effectively and in a more client-oriented manner. Full article
(This article belongs to the Special Issue Laws and Emerging Technologies)
23 pages, 349 KiB  
Article
Public Interest, Health Research and Data Protection Law: Establishing a Legitimate Trade-Off between Individual Control and Research Access to Health Data
by Mark J. Taylor and Tess Whitton
Laws 2020, 9(1), 6; https://doi.org/10.3390/laws9010006 - 14 Feb 2020
Cited by 21 | Viewed by 11060
Abstract
The United Kingdom’s Data Protection Act 2018 introduces a new public interest test applicable to the research processing of personal health data. The need for interpretation and application of this new safeguard creates a further opportunity to craft a health data governance landscape [...] Read more.
The United Kingdom’s Data Protection Act 2018 introduces a new public interest test applicable to the research processing of personal health data. The need for interpretation and application of this new safeguard creates a further opportunity to craft a health data governance landscape deserving of public trust and confidence. At the minimum, to constitute a positive contribution, the new test must be capable of distinguishing between instances of health research that are in the public interest, from those that are not, in a meaningful, predictable and reproducible manner. In this article, we derive from the literature on theories of public interest a concept of public interest capable of supporting such a test. Its application can defend the position under data protection law that allows a legal route through to processing personal health data for research purposes that does not require individual consent. However, its adoption would also entail that the public interest test in the 2018 Act could only be met if all practicable steps are taken to maximise preservation of individual control over the use of personal health data for research purposes. This would require that consent is sought where practicable and objection respected in almost all circumstances. Importantly, we suggest that an advantage of relying upon this concept of the public interest, to ground the test introduced by the 2018 Act, is that it may work to promote the social legitimacy of data protection legislation and the research processing that it authorises without individual consent (and occasionally in the face of explicit objection). Full article
(This article belongs to the Section Health Law Issues)
26 pages, 401 KiB  
Article
Fashion between Inspiration and Appropriation
by Barbara Pozzo
Laws 2020, 9(1), 5; https://doi.org/10.3390/laws9010005 - 12 Feb 2020
Cited by 23 | Viewed by 30634
Abstract
Fashion is considered an element of “cultural identity”. At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration [...] Read more.
Fashion is considered an element of “cultural identity”. At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration to draw and depart from in an attempt at innovation. Influences were reciprocal, with the phenomenon of Orientalism going hand in hand with that of Occidentalism. Today’s discussion focuses on the vindication by various ethnic groups of ways to protect their own folklore as expression of their own cultural identity. The questions that arise are manifold. This contribution aims at framing the problem in the nowadays fashion industry as well as investigating the various possibilities of protecting folklore while preserving cultural identity. The discussion will deal with recent studies that have analyzed the various aspects of cultural appropriation. Intellectual property will be taken into consideration as a way to protect folklore. Nevertheless, this article suggests that other options for achieving protection of cultural heritage and folklore emerge in the field of Private Governance and Corporate Social Responsibility that will offer new opportunities to tackle the problem of cultural appropriation in the fashion world. Full article
(This article belongs to the Special Issue The New Frontiers of Fashion Law)
26 pages, 321 KiB  
Article
Questioning Segregation of People Living with Dementia in Australia: An International Human Rights Approach to Care Homes
by Linda Steele, Kate Swaffer, Lyn Phillipson and Richard Fleming
Laws 2019, 8(3), 18; https://doi.org/10.3390/laws8030018 - 15 Aug 2019
Cited by 35 | Viewed by 14492
Abstract
This article explores how care homes—and, specifically, their common features such as dementia care units and locked doors and gates—impact on the human rights of people living with dementia. We suggest that congregation, separation and confinement of people living with dementia by the [...] Read more.
This article explores how care homes—and, specifically, their common features such as dementia care units and locked doors and gates—impact on the human rights of people living with dementia. We suggest that congregation, separation and confinement of people living with dementia by the care home built environment constitute ‘segregation’. In the specific context of residential aged care facilities in Australia, we draw on the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) to frame this segregation as an injustice. We focus on the rights to non-discrimination (Article 5), liberty and security of the person (Article 14), equality before the law (Article 12), accessibility (Article 9), and independent living and community inclusion (Article 19). Our analysis shows that addressing segregation must involve structural and resource reforms that are transformative in bringing about new ways of living and relating to each other. Such reforms are directed towards providing meaningful alternatives and appropriate supports to make choices from a range of alternative residency and support options, and building communities that are free from ableism, ageism and other systems of oppression that contribute to confinement and segregation. Full article
(This article belongs to the Collection Disability Human Rights Law)
75 pages, 937 KiB  
Article
Comparison of Quebec’s Project Delivery Methods: Relational Contract Law and Differences in Contractual Language
by Gabriel Jobidon, Pierre Lemieux and Robert Beauregard
Laws 2019, 8(2), 9; https://doi.org/10.3390/laws8020009 - 3 Apr 2019
Cited by 12 | Viewed by 7628
Abstract
The province of Quebec, Canada, seeks to implement relational alternate project delivery methods to achieve sustainability and energy efficiency in public construction. However, the relational differences between the formal written parts of different delivery methods have yet to be analyzed and understood, as [...] Read more.
The province of Quebec, Canada, seeks to implement relational alternate project delivery methods to achieve sustainability and energy efficiency in public construction. However, the relational differences between the formal written parts of different delivery methods have yet to be analyzed and understood, as is the case with the relational aspects of contracts and the achievement of sustainable and energy-efficient infrastructure. Using a hermeneutic interpretation of Macneil’s relational contract norms and grounded theory, 26 contracts involving Quebec’s largest public client of vertical infrastructure and representing three different types of project delivery methods (design–bid–build (DBB), design–Build (DB), and construction manager–general contractor/integrated project delivery (CMGC/IPD)) were analyzed using NVivo. It was found that CMGC/IPD is the most relational project delivery method available to Quebec’s public clients, namely because of the public client’s active involvement in the realization process, the increasing complexity of roles, the multitude of common management structures, and the internalization of sustainability measures and conflict resolution. Furthermore, Quebec’s CMGC/IPD was found to be an IPD-ish delivery method, lacking the early involvement of the construction manager and the risk/reward sharing mechanisms necessary to achieve pure IPD status. The findings and theoretical considerations discussed here will help policymakers, contract drafters, and public clients interested in implementing relational contracting practices in public construction projects. Full article
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19 pages, 257 KiB  
Article
Supporting Choice and Control—An Analysis of the Approach Taken to Legal Capacity in Australia’s National Disability Insurance Scheme
by Emily Cukalevski
Laws 2019, 8(2), 8; https://doi.org/10.3390/laws8020008 - 27 Mar 2019
Cited by 12 | Viewed by 10848
Abstract
In mid-2013, the Australian federal government introduced the National Disability Insurance Scheme (NDIS), a ground-breaking reform of disability support services, encapsulated by the mantra of increasing “choice and control”. The scheme provides eligible persons with disabilities a legislated entitlement to supports they may [...] Read more.
In mid-2013, the Australian federal government introduced the National Disability Insurance Scheme (NDIS), a ground-breaking reform of disability support services, encapsulated by the mantra of increasing “choice and control”. The scheme provides eligible persons with disabilities a legislated entitlement to supports they may require to increase their independence and social and economic participation. The NDIS has been hailed as a major step forward in Australia’s efforts to realize the human rights of persons with disabilities, in accordance with the UN Convention on the Rights of Persons with Disabilities (CRPD). A core aspect of the CRPD is guaranteeing persons with disabilities their civil and political right to equality before the law, including their right to enjoy legal capacity on an equal basis with others, as provided by Article 12 of the CRPD. The purpose of this paper is to examine how the concept of choice and control has been operationalized within the NDIS and to critically analyze the extent to which it accords with the requirements of Article 12. It will be argued that even though the NDIS expressly seeks to implement the CRPD as one of its key objectives, it ultimately falls short in fully embracing the obligations of Article 12 and the notions of autonomy and personhood underlying it. Full article
(This article belongs to the Collection Disability Human Rights Law)
22 pages, 286 KiB  
Article
Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms
by Antonio Martinez-Pujalte
Laws 2019, 8(1), 4; https://doi.org/10.3390/laws8010004 - 1 Feb 2019
Cited by 21 | Viewed by 10168
Abstract
Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, [...] Read more.
Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention. Full article
(This article belongs to the Collection Disability Human Rights Law)
17 pages, 290 KiB  
Article
The Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn?
by Salvatore Caserta and Mikael Rask Madsen
Laws 2019, 8(1), 1; https://doi.org/10.3390/laws8010001 - 4 Jan 2019
Cited by 31 | Viewed by 11413
Abstract
This article investigates the impact of what we label “digital capitalism” on the structure and organization of the legal profession. We explore whether the rise of digital capitalism is transforming the dynamics of the legal field by the introduction of new actors and [...] Read more.
This article investigates the impact of what we label “digital capitalism” on the structure and organization of the legal profession. We explore whether the rise of digital capitalism is transforming the dynamics of the legal field by the introduction of new actors and ways of practicing law, which might challenge the traditional control (and monopoly) of jurists on the production of law. We find that not only have new service providers already entered the legal market, but also new on-line tools for solving legal disputes or producing legal documents are gaining a foothold. Similarly, we also find that new intelligent search systems are challenging the role of junior lawyers and paralegals with regard to reviewing large sets of documents. However, big data techniques deployed to predict future courts’ decisions are not yet advanced enough to pose a challenge. Overall, we argue that these developments will not only change legal practices, but are also likely to influence the internal structure and organization of the legal field. In particular, we argue that the processes of change associated with digitalization is further accelerating the economization and commodification of the practice of law, whereby lawyers are decreasingly disinterested brokers in society and defenders of the public good, and increasingly service firms at the cutting edge of the capitalist economy. These developments are also triggering new forms of stratification of the legal field. While some legal actors will likely benefit from digitalization and expand their business, either by integrating new technologies to reach more clients or by developing new niche areas of practices, the more routinized forms of legal practice are facing serious challenges and will most likely be replaced by technology and associated service firms. Full article
(This article belongs to the Special Issue Where Are the Legal Professions Heading? Selected Papers of the International Working Group for Comparative Studies of Legal Professions)
17 pages, 555 KiB  
Review
The Secret Silent Spaces of Workplace Violence: Focus on Bullying (and Harassment)
by Allison J Ballard and Patricia Easteal
Laws 2018, 7(4), 35; https://doi.org/10.3390/laws7040035 - 29 Oct 2018
Cited by 5 | Viewed by 13655
Abstract
Any form of workplace abuse, be it bullying, sexual or non-sexual harassment, or other forms of workplace violence, represents a significant problem for both workers and organisations. The reality that worker complaints of such abuse are often silenced, frequently for long periods of [...] Read more.
Any form of workplace abuse, be it bullying, sexual or non-sexual harassment, or other forms of workplace violence, represents a significant problem for both workers and organisations. The reality that worker complaints of such abuse are often silenced, frequently for long periods of time, has recently been spotlighted by the #MeToo movement. In this article we focus particularly on workplace bullying (some definitions include harassment). We explore how potential, and actual, complaints of such abuse may silenced—both before complaints are ever made, and also at different points along the complaint or dispute resolution process. We investigate how definitional and naming issues, worker ignorance and incapacity, workplace investigations, (alternative) dispute resolution and the legal pathways available to targets of workplace bullying and harassment may act to silence complaints. We also provide some practical suggestions for the targets of workplace abuse. Full article
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16 pages, 245 KiB  
Article
Are Immigrant Women Visible in Australian Domestic Violence Reports that Potentially Influence Policy?
by Nafiseh Ghafournia and Patricia Easteal
Laws 2018, 7(4), 32; https://doi.org/10.3390/laws7040032 - 21 Sep 2018
Cited by 23 | Viewed by 16724
Abstract
Through an intersectional lens, this article explores whether immigrant women are represented in a sample of Australian government documents aimed at providing information about family violence in Australia, and discusses implications for policy development. The authors find that while these documents pay lip [...] Read more.
Through an intersectional lens, this article explores whether immigrant women are represented in a sample of Australian government documents aimed at providing information about family violence in Australia, and discusses implications for policy development. The authors find that while these documents pay lip service to the special vulnerabilities of immigrant and refugee women; arguably, they do not engage with the complexities of the intersection of gender and other social categories. Given that the reports do not focus adequately on how race, ethnicity, culture and immigration status play a role in these women’s experiences of domestic violence, this may limit the effect of policies that address the culturally and linguistically diverse (CALD) victims’ needs and rights to protection. We argue that a more intersectional approach is necessary to address CALD women’s specific needs. Full article
(This article belongs to the Section Law and Gender Issues)
17 pages, 275 KiB  
Article
Here to Stay: The Evolution of Sexual and Reproductive Health and Rights in International Human Rights Law
by Lucía Berro Pizzarossa
Laws 2018, 7(3), 29; https://doi.org/10.3390/laws7030029 - 7 Aug 2018
Cited by 9 | Viewed by 16727
Abstract
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, [...] Read more.
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 article belongs to the Section Human Rights Issues)
24 pages, 275 KiB  
Article
#MeToo? Legal Discourse and Everyday Responses to Sexual Violence
by Alison Gash and Ryan Harding
Laws 2018, 7(2), 21; https://doi.org/10.3390/laws7020021 - 21 May 2018
Cited by 19 | Viewed by 17358
Abstract
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 [...] Read more.
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
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
15 pages, 607 KiB  
Article
All Their Eggs in One Basket? Ideological Congruence in Congress and the Bicameral Origins of Concentrated Delegation to the Bureaucracy
by Jordan Carr Peterson
Laws 2018, 7(2), 19; https://doi.org/10.3390/laws7020019 - 12 May 2018
Cited by 3 | Viewed by 5268
Abstract
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 [...] Read more.
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
(This article belongs to the Special Issue Intersection between Law, Politics and Public Policy)
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17 pages, 264 KiB  
Article
Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)
by Charlotte May-Simera
Laws 2018, 7(1), 6; https://doi.org/10.3390/laws7010006 - 5 Feb 2018
Cited by 5 | Viewed by 8392
Abstract
Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United [...] Read more.
Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United Nations Convention on the Rights of Persons with Disabilities, we can at least begin to assess the equality implications of such placements and argue that the experience of segregation itself represents numerous rights violations and discrimination. Having considered traditional equality mechanisms and their bearing on people with intellectual disabilities, this discussion explores how far the Convention’s re-envisioning of the basic principles of equality can perhaps provide a more promising outlook and ideological stance. Indeed, during the Convention’s inception, the negotiations circled around the conflicting opinions as to the purpose, usefulness, and future of sheltered work, revealing the existing tensions between protection and autonomy, shrouding all disability policy discussions. As a result, the question of sheltered work is not explicitly addressed in the treaty and the Committee on the Rights of Persons with Disabilities have been unable to definitively declare that the practice of sheltered work constitutes an act of discrimination. However, the Committee does as times demand that sheltered workshops be phased out where it is obvious that the practice of sheltered work is directly linked to the exploitation of workers. Moreover, certain provisions in the Convention might help in determining wrongful discrimination in some, if limited, instances. Full article
(This article belongs to the Collection Disability Human Rights Law)
26 pages, 309 KiB  
Article
Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and Madness
by Fleur Beaupert
Laws 2018, 7(1), 3; https://doi.org/10.3390/laws7010003 - 4 Jan 2018
Cited by 12 | Viewed by 10138
Abstract
This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and [...] Read more.
This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards. Full article
(This article belongs to the Collection Disability Human Rights Law)
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