Authority Of Law Research Articles

Chain novel, or Markov chain? Estimating the authority of U.S. Supreme Court case law

AbstractHow does the authority of case law evolve over time? On the Dworkinian legal formalist view, cases increase in authority as they become more embedded in the “chain” of legal precedent, but on the Holmesian legal realist view, each case's authority is proportional to its ability to predict future legal outcomes. In this article, I show how modeling the citation network of U.S. Supreme Court case law not as a chain novel (à la Dworkin) but instead as a Markov chain (à la Holmes, or so I argue) unlocks an intuitive measure of case authority—called HolmesRank—that outperforms the existing approach in a variety of validation tasks. I then demonstrate how the authority scores produced using this Markov machinery empower the analysis of two important normative questions: (1) the ideological basis of lasting precedential authority and (2) the causal effect of the Supreme Court's citation choices on lower court compliance.

TUPE’s public–private divide: Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board

Abstract This note reviews the decision of the Employment Appeal Tribunal in Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board and its consideration of the limitation of the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to ‘economic activity’. This limitation, when combined with the exclusion from the application of the transfer of undertakings legislation of ‘public administrative’ reorganisations, creates a public–private divide—a ‘public sector exclusion zone’—in the application of the transfer of undertakings regime. This note argues that the doubts expressed by the EAT in Bicknell about the decision in Nicholls & Anor v London Borough of Croydon & Ors—in which it was held that the purchasing and commission of goods and services do not constitute an economic activity for the purposes of the transfer legislation—are well founded. The approach adopted in Nicholls, which was based on EU competition law authorities addressing the entirely different context of the regulation of competition, should therefore be revisited. Applying a purposive TUPE-specific approach, the purchasing and commission of goods and services should, depending on the factual matrix, be treated as capable of constituting an economic activity for the purposes of TUPE. This approach would, consistent with the objectives of the transfer legislation, enable the (better) protection of the employment of those engaged in purchasing and commissioning activities, whether or not conducted under the broad umbrella of the public sector, who are affected by reorganisations and similar exercises otherwise satisfying the requirements of a TUPE transfer.

State Full Practice Authority Regulations and Nurse Practitioner Practice Autonomy: Evidence From the 2018 National Sample Survey of Registered Nurses.

State full practice authority (FPA) laws are designed to permit NPs to practice autonomously from physicians. Little is known regarding how FPA laws affect NPs' practice autonomy in daily practice. This study used nationwide survey data from 20,830 NPs to estimate how NPs' practice autonomy differs between NPs in FPA and non-FPA states. NPs in states with FPA laws were more than twice as likely as NPs in non-FPA states to practice in clinic settings with no onsite physicians and were twice as likely to not have a physician collaborator. Associations between FPA laws and four other indicators of practice autonomy were positive but smaller in magnitude. States with FPA laws more than 10 years experienced larger changes in nurse practitioner (NP) autonomy compared with states with FPA laws in effect less than 10 years. FPA laws may promote the development of autonomous NP practice sites, thereby expanding access in underserved populations.

Text analysis and optimization strategy of an app’s privacy policy from the perspective of dual perception: taking Chinese shopping apps as an example

Purpose This paper aims to conduct an in-depth analysis of the shortcomings of apps’ privacy policies and to propose improvement and optimization strategies, which are of great significance for establishing a transparent and responsible privacy protection framework that ensures compliant collection and use of users’ information and effective protection of their privacy. Design/methodology/approach This paper obtained privacy policy texts for 100 shopping apps through Web crawlers and manual downloads. Based on the perspective of perceived usefulness, thematic analysis is conducted through the latent Dirichlet allocation topic model and comparison with existing policies. Based on the perspective of perceived ease of use, readability analysis is conducted through content analysis and formula calculation. Findings The apps privacy policies can be divided into seven themes. The authors benchmark these seven topics with the Personal Information Protection Law of the People’s Republic of China, the E-Commerce Law of the People’s Republic of China and the General Data Protection Regulation. It is found that there are omissions in the information collection and use and juvenile protection of the existing apps. Through the indicators’ readability analysis and calculation, it is found that the existing apps privacy policies have good performance in the readability indicators such as naming method, frame directory and so on. However, text personalization and text readability need to be improved and optimized. Originality/value At the theoretical level, this paper constructs a model from the dual perception perspectives of perceived usefulness and perceived ease of use and analyses the apps’ privacy policy texts at a fine-grained level. At the practical level, based on large-scale apps’ privacy policy text data, this paper conducts multi-dimensional research from theme analysis, authoritative law benchmarking analysis, content analysis and text readability calculation and analysis. At the same time, this paper identifies the current problems of apps’ privacy policies and puts forward countermeasure suggestions for their content improvement and optimization.

Legal Authority and Marital Identity: A Study on the Kalosara Tradition of the Tolaki People in Southeast Sulawesi

For the Tolaki indigenous people, a marriage is considered valid when it is conducted in accordance with the kalosara tradition. This signifies that the legitimacy of marriage among the Tolaki people of Southeast Sulawesi is not determined by adherence to Islamic law or state regulations, but by the observance of the kalosara customary practice. This study seeks to explore the kalosara tradition as the prevailing authority in the marriage law of the Tolaki community in Southeast Sulawesi, and to analyze the perspectives of Islamic law through the concepts of ‘urf and maṣlaḥa mursala in relation to this tradition. Employing a qualitative research method with an empirical-normative approach, data were gathered through interviews with traditional leaders, community figures, and religious authorities. The findings of the study indicate that the kalosara tradition in Tolaki community wedding ceremonies consists of three stages: seeking permission, the proposal, and the marriage contract. The Tolaki people regard a marriage as valid only if it adheres to the kalosara tradition, establishing customary law as the dominant form of marriage law within the community. From the perspective of ‘urf, the kalosara tradition is deemed acceptable, as it fulfills the criteria of al-‘urf al-ṣaḥīḥ (good custom). Moreover, the kalosara tradition contributes to social welfare within the Tolaki community of Southeast Sulawesi. This research is expected to make a significant global contribution to the development of studies on marriage law and tradition. Furthermore, it is deserving of recognition as a valuable academic resource addressing societal legal needs concerning the practice of marriage traditions.

NOMINA OF MARRIED WOMEN IN CUM MANU MARRIAGES IN THE ROMAN REPUBLIC AND PRINCIPATE ERAS

Generally, a daughter in parental power in Roman family in the Republic and the Principate did not have personal name, but bore her father’s name in the feminine. A woman kept her father’s family name in marriage, but if she came under her husband’s lawful authority and became a member of his clan, her father’s family name became her personal name and her husband’s family name was added in the nominative or genitive case. In modern historical and legal science is traditionally considered that this custom was strictly observed in Republican Rome. But in the 2nd – 1st centuries BC this custom disappeared with the gradual withering away of cum manu marriage (confarreatio, coemptio, usus). The author, basing on the position of Theodor Mommsen about the family name of married women, analyses the sources of classical Roman law of the 1st – 3rd centuries AD and concludes that the marriages confarreatio and coemtio and the husband’s power over the wife continued throughout the Principate. In addition, the author hypotheses that the tradition of attaching the husband’s name to the father’s family name of the married woman also continued throughout the classical period of Roman law.

Comparative Analysis of Bribery as, Criminal Wrongdoing

There is a consensus that bribery, which is explicitly outlawed in the Magna Carta, should be considered a criminal act. Elucidate the criminalisation of bribery may be unexpectedly for those who see harmful actions as the primary criterion for determining what should be made a criminal offence. The predicament faced by these intellectuals is as follows. Bribing sometimes encompasses innocuous misconduct, but the rationale for criminalising it does not stem from any undue damage inherent in bribing itself. The rationale is on the potential damage that may occur if bribery is not penalised, considering the limited efficiency of civil law in reducing its prevalence. According to some theorists, the basis for criminalising activity based on the concept of "remote harm" is considered a secondary and possibly problematic kind of criminalisation. This paper presents a challenge for these theories in elucidating not only the reasons behind bribery but also the reasons behind other significant offences, such as rape, which are often seen as fundamental instances of criminal misconduct. Indeed, criminal law has the lawful authority to include a broad array of harm-related justifications for including action within its boundaries and central principles. One cause for the activity involving inflicting unnecessary injury is the reality itself.

Between Authority and Usurpation? Common Good and Constitutional Government

Abstract The classical tradition of law and government supports lawful authority and condemns usurpation. But the common good sometimes provides a reason to sweep aside existing constitutional arrangements. This article considers the way in which authority and usurpation feature in Adrian Vermeule’s recent book, Common Good Constitutionalism, and thus reflects on the nature of constitutional government. Vermeule’s work combines a commendable philosophy of government with a questionable philosophy of legal reasoning, which weakens the force of Vermeule’s account of American constitutional law and practice. Reflection on the scope of the common good—on whose common good counts—has important implications for how, and for whom, authority should be exercised. Collective agency is important in securing the common good and representative democracy is an important means to unite a people in common action for their good. Constitutional government should aim to command popular support. Forms of constitutional government are contingent, but usurpation of lawful public authority is an evil that should be avoided.

Execution of decisions of the Constitutional Court of Ukraine: separate doctrinal approaches

It is indicated that the key problem in the activity of the Constitutional Court of Ukraine is ensuring the implementation of its decisions. Without solving this issue, it is impossible to guarantee the supremacy of the Constitution, the principle of separation of powers and the existence of an independent judicial branch of government as a separate institution. Ignoring the decisions of the constitutional control body undermines the very system of checks and balances, the authority of the Basic Law and the constitutional order in the country in general. These principles underlie the implementation of decisions of constitutional courts, the purpose of which is to ensure constitutional legality. In Ukraine, the mechanism for the implementation of the decisions of the Central Committee of Ukraine has already been developed in general, but there are problems related to the non-implementation of some of its decisions for a long time. Therefore, the task of further improvement of this mechanism and its proper legislative regulation remains relevant. The authors claim that Ukraine has already developed a mechanism for implementing decisions of the Constitutional Court. However, this system is not perfect, which is evidenced by the fact of non-execution of individual court decisions. Therefore, the issue of continuing the work on improving the existing mechanism for implementing decisions of the body of constitutional jurisdiction, securing it properly at the legislative level, remains urgent. At the same time, the problem of the quality of such execution comes to the fore, for the solution of which it is necessary to develop criteria for the effectiveness of the execution of court decisions, which will allow to assess the quality of the legal acts that are introduced and the work of the responsible entities. Both outlined problems definitely need further thorough scientific research. In addition, according to the authors, it should be noted that the issues of the legal nature of the legal positions of the Constitutional Court of Ukraine and the criteria for the effective implementation of its decisions remain interacting categories and, therefore, require thorough scientific study. At the same time, clarifying the legal force of the Court’s legal positions is complicated by the lack of their legislative definition, by a certain difficulty in understanding the role and place of the body of constitutional jurisdiction in the system of state power. At the same time, the legal positions have a normative and mandatory character, reflected in the acts of the KSU. The need to ensure their immutability follows from the principles of legal certainty and stability of the Constitution. However, the possibility of revising some legal positions in connection with the change in the socio-political structure of the state is gaining relevance.

Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers, by Vilija Ve?lyvyte.( Oxford: Hart Publishing, 2022.)

Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers, by Vilija Ve?lyvyte.( Oxford: Hart Publishing, 2022.)

Правосубъектность органов публичной власти в публичном праве

The article is devoted to the issues of the legal nature and specificity of the legal personality of public authorities in public law; correlations between different types of their legal personalities are examined in the article. Based on the analysis of the legal regulation of legal entity of public law and its legal personality, the conclusion is made that the legal personality does not reflect all specifics of the legal personality of public authorities.

Revisioning Official Islam in Indonesia: The Role of Women Ulama Congress in Reproducing Female Authority in Islamic Law

Until now, the religious views of the Indonesian Government, known as official Islam, tend to be masculine and patriarchal in determining laws. The masculinity of official Islam can easily be found in some regulations in Indonesia. The establishment of the Indonesian Congress of Women Islamic Scholars (Kongres Ulama Perempuan Indonesia, KUPI) has introduced a new perspective on gender amid the dominance of official Islamic masculinity. This article focuses on the role and position of KUPI amid the dominance of official Islamic masculinity in Indonesia. Through content analysis and Charles Peirce's theory of knowledge construction, the author found that KUPI has successfully become a center for reproducing female authority in Islamic law. This is achieved by reinterpreting several government rules and policies that tend to be masculine and disadvantageous to women. The success of KUPI as a center for the reproduction of the authority of women Islamic scholars plays a role in revising official Islam. KUPI accomplishes this by offering a new paradigm that embodies the values of justice and gender equality. Abstrak: Pandangan-pandangan keagamaan Pemerintah Indonesia yang dikenal dengan istilah official Islam selama ini masih cenderung maskulin dan patriarki dalam menetapkan hukum. Maskulinitas official Islam dapat dengan mudah ditemukan dalam sebagian aturan di Indonesia. Penyelenggaraan Kongres Ulama Perempuan Indonesia (KUPI) memunculkan perspektif baru terkait gender di tengah dominannya maskulinitas Official Islam tersebut. Artikel ini menganalis peran dan posisi KUPI di tengah dominannya maskulinitas Official Islam di Indonesia. Melalui pendekatan content analysis dan teori konstruksi pengetahuan Charles Peirce, penulis berargumen bahwa KUPI telah berhasil menjadi pusat reproduksi otoritas ulama perempuan di Indonesia. Hal ini dicapai dengan melakukan penafsiran ulang terhadap beberapa aturan dan kebijakan pemerintah yang cenderung maskulin dan merugikan perempuan. Keberhasilan KUPI menjadi pusat reproduksi otoritas ulama perempuan ini berperan dalam merevisi Official Islam tersebut. Hal ini dilakukan oleh KUPI dengan menawarkan paradigma baru yang lebih mengandung nilai-nilai keadilan dan keseteraan gender.

THE AUTHORITY OF ISLAMIC FAMILY LAW AMONG THE HEADS OF TERNATE AND TIDORE RELIGIOUS AFFAIRS OFFICES

This article analyzes the authority of Islamic family law among the heads of the Religious Affairs Office (KUA) in Ternate and Tidore, Indonesia. This research is a type of field research with qualitative methods. The research involved princes in the northern Maluku region consisting of the Sultanates of Ternate and Tidore. The research results show that the headman has coercive authority to force legal implementers (children or parents for parties who are getting married) to comply with existing rules because there is a legal basis which is the authority of the headman as the party registering the marriage. In dealing with legal authorities such as in determining marriage guardians, determining the period of 'iddah and pregnant marriages, the headmen in Ternate and Tidore generally use Fiqh legal considerations rather than state laws such as KHI and so on. This is because formal legislation issued by the state (such as KHI) does not have a negotiating nature and is final. Furthermore, alternatives for consideration of minimizing harm and taking the path to benefit are taken from the legal propositions of Fiqh.

Mandatory Vaccinations at the Workplace during Covid-19 Times in South Africa: Lessons Learnt for Future Pandemics

The purpose of the study was to analyse mandatory vaccinations at the workplace during COVID-19 times in South Africa. COVID-19 was first identified in March 2020 in South Africa. The National State of Disaster was ended by the President on 4 April 2022. However, while economic activities were gradually opening to revive the economy, some employers had issued mandatory vaccinations to all their employees at their workplaces. This was regarded in some quarters as a violation of the rights of workers. This paper however argues that there was a misunderstanding on whether any law authorised these mandatory vaccinations. The study found that forcing employees to vaccinate against their will, despite World Health Organisation (WHO) ethical considerations against mandatory vaccinations, was a violation of their constitutional right to security in and control over their bodies. Furthermore, it found that this violation was not justifiable under the limitation clause. The paper concluded that no law clearly authorised employers to apply mandatory vaccinations at the workplace. The authors hope that employers learnt some lessons from the implementation of COVID-19 mandatory vaccinations. The paper recommends that mandatory vaccinations should not be applied for future pandemics at the workplace without basis or authority of law. The study further recommends that government must develop clear laws and guidelines to regulate mandatory vaccinations for future pandemics in the workplace. The paper exposes the weaknesses of mandatory vaccinations which were applied by employers to employees at their workplaces during COVID-19 times in South Africa. The paper contributes to the growing constitutional and legal discontent of mandatory vaccines in South Africa and beyond to guide governmental intervention in future pandemics as individual rights interface with general health safety. Keywords: COVID-19, Mandatory Vaccinations, Employees’ rights, Employers, National State of Disaster, Workplace, Lockdown.

Law and Regulation as Safeguards for Investors Against Crime in Capital Market Sector

As a country with potency in economic growth, Indonesia is supported by several essential sectors, and one of them is through the Capital Market. The capital market enables the growth acceleration for a company or country by providing the needed fund. At least, through this medium, there are reciprocal benefits obtained by both parties involved in the Capital Market: issuers with capital injections, and investors with dividends and price increases. Unfortunately, there are big risks that investors have to deal with in capital markets, and some of them are related to fraud, market manipulation and insider trading. The results of this research found that government has enacted regulations that protect investors' rights through the Capital Market Law and the Financial Services Authority Law. However, there are still weaknesses in this regulation, especially for types of crimes that are still not regulated in this regulation. Moreover, it is necessary to have sufficient prowess from the authorized institution, especially the Financial Services Authority (OJK), to resolve cases in accordance with the applicable law aiming to protect investors' rights.

Financial Services Authority Laws Against Non-Bank Financial Institutions Based on Outlaw Financial Technology

The jurisdiction of the Financial Services Authority to oversee non-bank financial institutions operating illegally on the basis of financial technology is outlined in Article 9 of Law No. 21 of 2011 concerning the Financial Services Authority. POJK No. 10/POJK.05/2022 regulates the legal proceedings initiated by the Financial Services Authority in response to violations committed by such illegal financial technology institutions. The objective of this research was to evaluate the current regulatory structure that oversees Non-Bank Financial Institutions (NBFIs) that engage in Online Financial Trading (OFT) and to pinpoint any regulatory shortcomings or challenges faced by financial authorities in their oversight of these companies. This study employs the Statutory Approach, the Case Approach, and the Analytical & Conceptual Approach to conduct normative research. Descriptive analytical methods were employed to acquire the data, and a qualitative approach was utilised to analyse both primary and secondary data. The research findings indicate that. The Financial Services Authority lacks the authority to regulate and enforce illicit fintech. The government established an Investment Alert Task Force (SWI) comprised of twelve ministries/institutions and financial services authorities, including those tasked with overseeing online loans and other illicit financial practices, in order to combat illegal fintech. OJK educates the public about the perils of illegal fintech and implements SWI in accordance with POJK Number 10/POJK.05/2022OJK so that it is possible to take decisive action against those who harm society through illegal fintech.

Cultural expertise and legal pluralism in the United Kingdom, France, and Italy

This paper investigates cultural expertise as a theoretical framework guiding the use of social sciences knowledge as expertise to assess evidence in dispute resolution and rights determination in the United Kingdom, France, and Italy. With a focus on legal pluralism, the study examines whether cultural expertise can effectively reconcile multiple sources of law with state laws, thereby mitigating concerns about legal pluralism undermining the authority of state laws. The first part of the paper highlights challenges associated with recognizing multiple legal sources without a comprehensive understanding of cultural expertise, also including the objections raised against accommodating legal pluralism in diverse societies. In the second part, the paper reviews three potential models for cultural expertise: independent cultural experts with established experience and reputation, experts appointed by decision-making or investigative authorities, and a hybrid system combining both types of expertise. The analysis is informed by global legal pluralism, considering social inequalities and power dynamics as crucial factors in understanding the plurality of law. Drawing upon the perspectives of legal pluralists attentive to social inequalities, the paper concludes by exploring the potential of cultural expertise within the framework of new global legal pluralism. It argues that cultural expertise, when effectively applied, can facilitate the identification of ways in which state and non-state laws can address and alleviate inequalities. By bridging the gap between culture and law, cultural expertise holds promise for contributing to a more equitable and inclusive legal system.

TÜRK İDARE HUKUKUNDA YETKİ DEVRİ KAVRAMI

İdari makamların idari işlem yapabilmeleri için hukuk kuralları tarafından yetkilendirilmeleri gerekir. İdari makamların yetkileri kişi, konu, yer ve zaman bakımından sınırlandırılmıştır. İdare adına irade açıklamasında bulunmaya yetkili kişiler ve organlar ile bu kişi ve organların yapabilecekleri idari işlemler konu bakımından da sınırlandırılmıştır. İdare içinde yetki düzeni, idarenin kanuniliği ilkesi gereği kural olarak kanunlarla belirlenmektedir. 2017 Anayasa Değişikliği sonucunda Türk hukukuna Cumhurbaşkanlığı Kararnamesi (CBK) adında yeni bir kamusal işlem türü girmiş ve birçok tartışmayı da beraberinde getirmiştir. Yürütmenin asli düzenleme yetkisinin örneğini teşkil eden bu işlem türünün birçoğunda idari makamlara yetkilerini devretmelerine imkan tanıyan hükümler sevk edilmiştir. Bu çalışmada, öncelikle idari işlemin yetki ögesi incelenecek, ardından Türk idare hukukunda yetki devri kavramına ilişkin klasik kabuller “geçerlilik koşulları”, “hukuka uygun yetki devrine bağlanan hukuki sonuçlar”, “hukuka aykırı yetki devrine bağlanan hukuki sonuçlar” ve “yetki devrinin sona ermesi” olmak üzere dört ana başlıkta değerlendirilecektir. Yürürlükteki kanunlar ve CBK’ler üzerinden yetki devri kavramının hukuki rejiminin ortaya koyulması gerektiğini ve öğretinin bu konudaki klasik kabullerinin pozitif hukuku açıklayamayabileceğini ileri süren bu çalışmanın sonuç bölümünde, idari makamlara CBK ile idari işlem yapma yetkisinin tanınmış olsa dahi kanuni yetkilerin CBK’lerde yer alan yetki devri normlarına dayanılarak devredilemeyeceği sonucuna varılmıştır. Kanuni yetkilerin CBK ile devredilemeyeceğini öngören veya devredilebilecek yetkileri CBK’lerde tanınanlarla sınırlandıran CBK hükümleri kanuni yetkilerin hukuka aykırı olarak devredilmesini engelleyebilecektir.

Presidential Campaign Authority in The General Election Law

Presidential Campaign Authority in The General Election Law

The World Health Organization was born as a normative agency: Seventy-five years of global health law under WHO governance.

The World Health Organization (WHO) was born as a normative agency and has looked to global health law to structure collective action to realize global health with justice. Framed by its constitutional authority to act as the directing and coordinating authority on international health, WHO has long been seen as the central actor in the development and implementation of global health law. However, WHO has faced challenges in advancing law to prevent disease and promote health over the past 75 years, with global health law constrained by new health actors, shifting normative frameworks, and soft law diplomacy. These challenges were exacerbated amid the COVID-19 pandemic, as states neglected international legal commitments in national health responses. Yet, global health law reforms are now underway to strengthen WHO governance, signaling a return to lawmaking for global health. Looking back on WHO's 75th anniversary, this article examines the central importance of global health law under WHO governance, reviewing the past successes, missed opportunities, and future hopes for WHO. For WHO to meet its constitutional authority to become the normative agency it was born to be, we offer five proposals to reestablish a WHO fit for purpose: normative instruments, equity and human rights mainstreaming, sustainable financing, One Health, and good governance. Drawing from past struggles, these reforms will require further efforts to revitalize hard law authorities in global health, strengthen WHO leadership across the global governance landscape, uphold equity and rights at the center of global health law, and expand negotiations in global health diplomacy.