Legal Community Research Articles

Juridifcation of the Concept of “Artifcial intelligence” and the Limits of the Use of Artifcial Intelligence Technology in the Judicial Process

The active development of artificial intelligence (AI) technology poses the question of how to integrate this phenomenon into legal reality, about the limits of using this technology in social practices regulated by law, and ultimately about developing an optimal model of legal regulation of AI. The paper focuses on the problem of developing the legal content of the concept of AI, including some methodological and ontological foundations of such work. The author brings to the scientific discussion certain constant characteristics of AI that are significant for legal regulation, which, if adopted by the legal scientific community, could be used as a scientifically sound basis for constructing specific variants of legal regulation that meet the needs of a particular sphere of social practice. The author believes that the scientifically based legal concept of AI is largely able to determine the direction and scope of applied legal research on the multidimensional problems of using AI technology in social interaction practices, including in the administration of justice, to distinguish the legal issues and problems related to this from ethical, philosophical, technological and other issues.According to the author, the task of forming the legal concept of AI is not limited to the formulation of specific legal definitions and cannot be solved at this level. The result of the juridification of the concept of AI should be a set of unchangeable (constant) legal characteristics, while specific definitions of this term in regulations may differ depending on the needs of legal regulation practice. In the work on the formation of a legally significant concept of AI, it is proposed to abandon the descriptive essentialist approach aimed at identifying the essence of AI in favor of an ascriptive constructivist approach, which involves attributing to the content of the concept of AI those legal properties that, on the one hand, are significant for the purposes of legal regulation, and on the other hand, limit the limits of legal regulation.

Mitigating the Next Disaster: Strengthening the U.S. Chemical Safety and Hazard Investigation Board

This article draws attention to an agency overlooked by the legal community: the U.S. Chemical Safety and Hazard Investigation Board (CSB), which investigates industrial chemical accidents and provides recommendations to reduce the risk of future accidents. The CSB was harmed by an internal scandal in 2014 and the Trump Administration more recently, but the CSB has an essential role in preventing chemical disasters. Its work is crucial, especially because climate change has increased the frequency of technological disasters caused by natural disasters (natechs), such as the Arkema plant explosion following Hurricane Harvey. This article assesses the CSB, compares its structure with like agencies in other countries, and argues that strengthening the CSB is essential to mitigating future chemical and natech disasters.

STRENGTHENING LAND REGISTRATION SYSTEM THROUGH IMPLEMENTATION OF DOMAIN APPROACH IN MANIFESTING LEGAL CERTAINTY AND COMMUNITY JUSTICE

As an implementation of welfare society, the government issued Law Number 5 of 1960 Article 19 paragraph (2) c, which provide the legal certainty of land rights for all Indonesians carried out through land registration. The land registration system adopted by Indonesia is negative land cadastre with positive tendency. The implementation of land registration provide the basis of state duty to produce land registration evidence, namely certificate, which is valid as a strong proof of rights. This certificate guarantees the correctness of physical data besides juridical data as long as it is not proven otherwise. Method: This legal research used Normative juridical method, with qualitative juridical data analysis. Results of the study: Negative land cadastre with positive tendency adopted by Indonesia currently does not guarantee legal certainty of land ownership and the community justice itself. This is indicated by the fact that there is still a phenomenon of land disputes, among the result of the issuance of overlapping. By using a legal cadastre-based domain approach, through an approach of extracting historical values of land and integrating the process of dialogue within the issuing of certificate; obtaining legal certainty and the community justice can be achieved. Conclusion: Negative land cadastre with positive tendency is still unable to manifest legal certainty of land ownership and community justice so it is appropriate that an adage states “the highest legal certainty, is the highest injustice”. Strengthening land registration system through the domain approach is an alternative option to manifest legal certainty and community justice.

The Sexual Question: A History of Prostitution in Peru, 1850s–1950s

The Sexual Question: A History of Prostitution in Peru, 1850s–1950s

NILAI-NILAI BUDAYA MELAYU DALAM SISTEM PEMERINTAHAN KEPENGHULUAN PADA MASYARAKAT ADAT KAMPUNG KUALA GASIB DI KECAMATAN KOTO GASIB KABUPATEN SIAK

With the stipulation of traditional villages in Siak Regency, it certainly has an impact on the administration of government. Fundamental changes are seen in government and community institutions in traditional villages. Regulation Regional Siak No. 2 of 2015 concerning the determination of traditional villages, explains the customary village government institutions where the penghulu is the head of the traditional village. The type of research used in this research is sociological legal research. Traditional villages have a function to organize community life as a legal community unit related to customary law, culture and can be used as a basis for smooth governance and implementation of development. The establishment of this traditional village is one of the objectives to give the broadest authority to the traditional village to maintain customs and territorial rights. The traditional village has the identity of elements as an alliance of customary law communities, and has several characteristics that distinguish it from other social groups which automatically become indigenous peoples. The factors that influence the success of the penghulu government system in the indigenous people of the Kuala Gasib village are the existence of a law that clearly regulates the position of a penghulu, the availability of a budget for development, the existence of adequate facilities and infrastructure in carrying out the wheels of government in the traditional village. In Kuala Gasib, there is a need for an MOU (Memorandum Of Understanding) or legal understanding between the village and the law (police), related to the settlement of crimes or irregularities.

Pola Pengelolaan Kekayaan Nagari Dan Pemberdayaan Masyarakat Dalam Peningkatan Kesejahteraan

One of the objectives of a state is stated in the fourth paragraph of the preamble to the 1945 Constitution, namely for the welfare of the community. After the enactment of the Regional Government Law, regional governments were given the authority to regulate and manage their own regional government affairs. The existence of nagari as a legal community unit in the Unitary State of the Republic of Indonesia has a constitutional basis in Article 18 B paragraph (2) of the 1945 Constitution, the article states "The state recognizes and respects the unity of customary law communities and their traditional rights ...". Before the amendment of the 1945 Constitution, Nagari was recognized as an area with original and special rights. Nagari as the lowest government unit that directly deals with the people in West Sumatra, in its development, is required to be able to empower and provide increased welfare for its people. An important aspect of Nagari autonomy is the authority to regulate (regularend) the household in the form of a legal product known as Nagari Regulation. With the existence of rules, the second aspect of autonomy will be implemented, namely the aspect of managing (besturen). Aspects of regulating according to the authority of the Nagari stipulated in the Nagari Government Law (a) authority based on rights of origin, (b) Village-scale local authority; (c) authority assigned by the Government, Provincial Government, or Regency / Regional Government City; and other authorities assigned by the Government, Provincial Government, or Regency / City Regional Government in accordance with the provisions of statutory regulations. Good management of village wealth and community empowerment will be able to improve community welfare, according to the aspirations of the Indonesian nation

ПРАВОПРИМЕНИТЕЛЬНАЯ КОМПЕТЕНТНОСТЬ БУДУЩЕГО ЮРИСТА: ПОНЯТИЕ, СТРУКТУРА И СОСТАВ

Statement of the problem. The current stage of the development of higher education in the Russian Federation is inextricably linked with the systematic renewal of all elements of the education system, which is based on innovative pedagogical technologies that reflect the changes taking place in the fields of culture, economics, law, science, and technology. Innovative processes in the life of the state and society impose new requirements on the legal community as one of the foundations of a democratic rule of law state, as well as on educational institutions implementing professional educational programs of higher legal education. Therefore, there is a need to update the content of the professional competence of a lawyer, which should be formed among students as a result of mastering the educational program. A graduate of a law institute at the beginning of his professional activity should be ready to solve various legal situations, usually related to the application and implementation of legal norms. However, often in the process of studying at a university with a significant amount of professional knowledge taught, due attention is not paid to the development and consolidation of professional skills, primary experience of professional activity, including the field of law enforcement. The lack of research in pedagogical science, the object of which would be the law enforcement competence of a future lawyer as an integral part of professional competence, determined the relevance of this study. The purpose of the article is to determine the essence and structure of law enforcement competence, as well as its place in the professional activity of a lawyer. The article analyzes the correlation of the concepts of “professional” and “law enforcement” competence of a lawyer from the positions of various approaches, justifies the expediency of allocating the law enforcement competence of a future lawyer as an integral part of professional competence according to the Federal Educational Standard 40.03.01 Jurisprudence. Methodology (materials and methods). Analysis of the works of Russian and foreign researchers on the problem of training specialists in the field of jurisprudence; analysis of normative legal acts regulating the field of education, analysis and synthesis of the authors’ experience in training students of the appropriate specialization, as well as a survey of employers as representatives of the labor market made it possible to determine the special place of law enforcement as a type of activity in the structure of professional competence of a lawyer, as well as the component composition of law enforcement competence. Research results. The article provides an analysis of educational standards in the field of jurisprudence, substantiates the expediency of distinguishing law enforcement competence as an integral part of the professional competence of a lawyer, suggests the authors’ formulation of the concept of “law enforcement competence of a future lawyer”, and also defines its component composition. Law enforcement competence is characterized as a necessary type of activity aimed at forming the professional competence of a lawyer. Based on the general characteristics of modern professional tasks and related labor functions, which a future lawyer should be ready to perform, it is concluded that it is necessary to create special conditions aimed at forming the law enforcement competence of a future lawyer. Conclusion. At present, there is statistical processing of data obtained during a pedagogical experiment on the implementation of organizational and pedagogical conditions for the formation of law enforcement competence among future lawyers studying at a university. This experiment was conducted in the Law Institute of the Krasnoyarsk State Agrarian University.

Predicting the impact of placing an overdose prevention site in Philadelphia: a mathematical modeling approach

BackgroundFatal overdoses from opioid use and substance disorders are increasing at an alarming rate. One proposed harm reduction strategy for reducing overdose fatalities is to place overdose prevention sites—commonly known as safe injection facilities—in proximity of locations with the highest rates of overdose. As urban centers in the USA are tackling legal hurdles and community skepticism around the introduction and location of these sites, it becomes increasingly important to assess the magnitude of the effect that these services might have on public health.MethodsWe developed a mathematical model to describe the movement of people who used opioids to an overdose prevention site in order to understand the impact that the facility would have on overdoses, fatalities, and user education and treatment/recovery. The discrete-time, stochastic model is able to describe a range of user behaviors, including the effects from how far they need to travel to the site. We calibrated the model to overdose data from Philadelphia and ran simulations to describe the effect of placing a site in the Kensington neighborhood.ResultsIn Philadelphia, which has a non-uniform racial population distribution, choice of site placement can determine which demographic groups are most helped. In our simulations, placement of the site in the Kensington neighborhood resulted in White opioid users being more likely to benefit from the site’s services. Overdoses that occur onsite can be reversed. Our results predict that for every 30 stations in the overdose prevention site, 6 per year of these would have resulted in fatalities if they had occurred outside of the overdose prevention site. Additionally, we estimate that fatalities will decrease further when referrals from the OPS to treatment are considered.ConclusionsMathematical modeling was used to predict the impact of placing an overdose prevention site in the Kensington neighborhood of Philadelphia. To fully understand the impact of site placement, both direct and indirect effects must be included in the analysis. Introducing more than one site and distributing sites equally across neighborhoods with different racial and demographic characteristics would have the broadest public health impact. Cities and locales can use mathematical modeling to help quantify the predicted impact of placing an overdose prevention site in a particular location.

Perlindungan Hukum Terhadap Penerima Hak dalam Perjanjian Waralaba di Indonesia

Franchising is a marketing concept in order to expand the business to support the economy, in this case there are often problems related to the agreement that has been set. Therefore, a legal protection is needed for the recipient of the right. The purpose of this study is to reveal the choice of agreement in the implementation of franchise agreements in Indonesia and the form of legal protection for franchisees in Indonesia. The research method in this study is normative research focusing on the behavior of the legal community and through legal science book references. Sources of data used are primary data by examining regulations related to franchises and secondary data by examining literature, books, papers and journals. Data collection techniques by classifying primary legal materials with secondary legal materials as a support. Analysis of Legal Materials obtained by qualitative analysis. The results of the study reveal that the franchise business in Indonesia has been regulated in the provisions of PP No. 42 of 2007 concerning franchising, for the legal requirements for the establishment of a franchise business, it must meet the provisions in Article 1320 of the Civil Code, and the form of legal protection for franchisees is contained in Article 7 of the Regulation of the Minister of Trade Number 12/ MDAG/Per/3/2006 so the franchisor cannot terminate the agreement at any time or at any time.

ПРИНЦИПЫ ГРАЖДАНСКО-ПРАВОВОЙ ОТВЕТСТВЕННОСТИ (начало)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

Calculation and Interpretation of Inter-laboratory Variation in Isotope Delta (δ) Values Using Real Interpretative Differences

Building on applications in anthropology, the use of stable isotope ratio analysis of human bone collagen to investigate an individual’s life history is becoming more commonplace in the forensic science community. Careful consideration of the resultant isotope delta (δ) values, particularly in regard to their accuracy and reliability, is paramount when introducing isotope data into the U.S. court system. In this study, we use a simple framework to calculate real interpretative difference (RID) values for collagen (“col”) and assess isotope data comparability for sample analysis (RIDanalysis) as well as sample preparation/analysis combined (RIDcombined). The RIDcombined values of 0.59‰ for δ13Ccol and 0.91‰ for δ15Ncol are similar to more complex, published calculations of inter-laboratory variability in the stable isotope analysis of skeletal remains, but they are easier to calculate and intuitively elegant. The RIDcombined as well as RIDanalysis values presented here allow users to examine multiple sources of inter-laboratory isotopic variation (preparation, analysis, and both together) in a two-step process whereby a RID value is constructed and then tested. Implementation of this RID approach will provide surety for the legal and research communities in forensic applications of stable isotope ratio analysis.

Lex genetica — multilayered pie on the current legal map of the world

This research paper deals with the issues related to Lex genetica on the current legal map of the world at the general theoretical level of scientific knowledge.Special focus is on the aspects of qualitative assessment of Lex genetica issues (I), as well as the compositional components thereof (II).The author comes to the conclusion that: Five basic levels of Lex genetica as a socio-normative system should be considered:— bioethical;— associated with the prevalent method of law formation for a certain legal system and (or) legal community;— judicial;— international;— the level of “legal Esperanto”.The overall design of Lex genetica should be coordinated with national models and standards. For Russia — that, in many respects, is just beginning to embark on the path of building a national policy in the sphere of Lex genetica — a legal structure which can be metaphorically called a “sun” (with regulation based on documents serving as guidelines) might become such a model. In France, for example, such documents serving as guidelines include the Bioethics Law.

THE IMPLICATION OF DENPASAR MAYOR REGULATION NUMBER 36 OF 2018 CONCERNING THE REDUCTION OF THE USE OF PLASTIC BAGS ON THE INVESTMENT CLIMATE IN THE TOURISM INDUSTRY SECTOR IN DENPASAR CITY

Tourism is a very complex and mass industry, involving many people from all walks of life and professions. Tourism as the foundation of many people’s lives is very vulnerable to issues, especially the issue of cleanliness and environmental pollution. Plastic waste, one example of which is the disposal of plastic containers by the community has become a global issue that can disrupt the large-scale tourism industry. The piles of rubbish that mount in every refuse disposal site or landfill, are truly heartbreaking, embarrassing, and very disturbing to the beauty and comfort of the community. That’s why the community and the Government of the City of Denpasar took the initiative to save Denpasar City Region in the hope of having an impact on the preservation of the global environment. This journal intends to identify the problem that is the obstacle to the implementation of Denpasar Mayor Regulation Number 36 Year 2018 concerning the Reduction of the Use of Plastic Bags on the investment climate in the tourism industry sector in Denpasar City. The second problem is how the Implementation of Denpasar Mayor Regulation No. 36 of 2018 impacts the investment climate in the tourism industry sector in Denpasar City. The theories used in this study are Legal System theory, Investment Theory and Tourism Theory. The type of research used in this study is the legal research. In this research, the legal research is conducted by giving the education for the community and giving a law enforcement. The conclusion from this research is that the obstacle to the implementation of Denpasar Mayor Regulation No. 36 of 2018 is that the level of understanding and awareness of the legal community need to be improved. While the implication of Denpasar Mayor Regulation No. 36 of 2018 on the tourism industry is very significant, more and more tourists will visit Denpasar city if the environment is free of plastic waste ,and it looks clean, beautiful, and pristine.

Restorative justice as a new response to crime - the modern vision and Bulgarian dreamers and opponents

The concept of restorative justice as a type of alternative justice that focuses on the recovery of harm from crime, the victim, the perpetrator and the status quo in general, rather than on repression, is no longer new. It has long had its international legal basis – acts of the UN, EU, Council of Europe and others. Its main tools – victim-offender mediation, family conferences, problem-solving circles and more, are already established and widely used in most European countries and America, Asia, Australia, and Africa. Although marked in some strategic documents in our country recently, restorative justice is not a legal fact yet. However, in the global criminal crisis, deficits of the criminal justice system's functioning could be successfully, if not completely eliminated, then at least mitigated through its mechanisms. Individual scientists and representatives of non-governmental organizations have not only dreamed since the beginning of this century but are working hard to introduce its models. Politicians and decision-makers and part of the legal community show stubborn rigidity and resistance, refusing to put this issue on the current agenda of society, under various pretexts, but primarily defending their "preserved interests and monopoly" in criminal justice. At the same time, the crisis with the COVID-19 pandemic raises the issue again with particular urgency. That is why it is high time to abandon the unproductive "penal populism", to revitalize the debate for the mentioned novelty and achieve synchronicity between visionaries, dreamers, practitioners and users.

Accredited investor: legal status and problems of taxation

The subject of the research is the legal norms contained in legislation and other legal acts that regulate the grounds for the emergence and the mechanism for implementing the status of an accredited investor, requirements for individuals, as well as certain aspects of taxation of accredited investors. The experience of legal regulation of income from investment activities, used in foreign legislation, is also analyzed in the context of the topic.The purpose of the article is to confirm the need to revise the requirements for accredited investors, to clarify the legislative provisions of the personal income tax. The reason for this study was legislative changes that caused an ambiguous reaction among the entire legal community in Russia.The methodology. General scientific methods were applied in the framework of a comparative, logical and statistical study and analysis of law enforcement and judicial practice in the field of taxation of an accredited investors.The main results. The following issues were investigated. What was the reason for the introduction of the status of an accredited investor in Russian legislation? It was the need firstly to protect the rights of investors, and secondly to regulate and protect the stock market from unconsciously high-risk transactions. What requirements are specified in the law for obtaining this status, what requirements exist in foreign legislation and why does domestic legislation need to be revised? We can divide the requirements for obtaining the status into three general groups: experience, knowledge and risk. Investor is obliged to meet two criteria by European legislation, when only one criterion by Russian legislation. The problem of taxation of qualified investors was raised in the context of the progressive income tax rate. Taxation of qualified investors needs a thorough legislative review in terms of tax deductions.Conclusions. The ideas for the introduction of the status of an accredited investor, of a progressive personal income tax rate were implemented in Russian legislation from the legislation of foreign countries. Such Russian legal rules needs significant revision. The legislative term "accredited investor" should be introduced in legislation system. It is necessary to clarify the criteria for obtaining a status, as well as to consolidate the necessity for accredited investors to comply with two conditions instead of one. Such an initiative would allow investors themselves to approach investing more consciously and would remove risks from brokers. Tax legislation should be amended in part of tax deductions for persons whose main activity is investment, since the current state of affairs discriminates them against individuals in their rights. The revision of the fixed requirements as well as the clarification of the tax legislation will attract investors (both Russian and foreign) to the Russian stock market, while the economy will receive positive growth, intermediaries-brokers and issuing firms will be provided with protection from unconscious risks.

Pediatric brain death certification: a narrative review.

In the five decades since its inception, brain death has become an accepted medical and legal concept throughout most of the world. There was initial reluctance to apply brain death criteria to children as they are believed more likely to regain neurologic function following injury. In spite of early trepidation, criteria for pediatric brain death certification were first proposed in 1987 by a multidisciplinary committee comprised of experts in the medical and legal communities. Protocols have since been developed to standardize brain death determination, but there remains substantial variability in practice throughout the world. In addition, brain death remains a topic of considerable ethical, philosophical, and legal controversy, and is often misrepresented in the media. In the present article, we discuss the history of brain death and the guidelines for its determination. We provide an overview of past and present challenges to its concept and diagnosis from biophilosophical, ethical and legal perspectives, and highlight differences between adult and pediatric brain death determination. We conclude by anticipating future directions for brain death as related to the emergence of new technologies. It is our position that providers should endorse the criteria for brain death diagnosis in children as proposed by the Society of Critical Care Medicine (SCCM), American Academy of Pediatrics (AAP), and Child Neurology Society (CNS), in order to prevent controversy and subjectivity surrounding what constitutes life versus death.

Richard E. Jackson, JD: 5th District

Richard E. Jackson, JD:5th District Judson L. Jeffries Richard E. Jackson, a son of Nashville, has made a lasting imprint on higher education administration, the legal community, and a number of grassroots efforts. For the past seven years Jackson has served as the executive vice president for Administration, Finance, and Legal Affairs at American Baptist College in Nashville, Tennessee, where he has oversight of all the college's non-academic operations. Prior to that, he was special assistant to the president at Middle Tennessee State University where he oversaw issues of equity, diversity, and inclusion. For eight years, Jackson was Austin Peay State University's vice president for legal affairs and strategic planning and before that its senior advisor to the president for Diversity, Affirmative Action and Legal Affairs. One would be remiss if I did not call attention to Jackson's major contribution to one of the nation's most prestigious medical schools—serving as the vice president for Policy Management and Legal Affairs as well as General Counsel and Corporate Secretary at historically Black Meharry Medical College during David Satcher, MD's, presidency (former US Surgeon General). As general counsel Jackson coordinated the negotiations with the city of Nashville, resulting in the historic consolidation of the city's acute care hospital services into renovated facilities on the campus of Meharry. Finally, Brother Jackson is a member of Omicron Delta Kappa, one of the nation's oldest honor societies for leadership. Below is an interview that spanned over the course of a week in mid-April of 2021. Judson L. Jeffries: Good Evening Brother Jackson, I appreciate your willingness to be a part of this project. Richard Jackson: Thank you very much for including me, I'm humbled, I really am. JLJ: Let's get right to it if you don't mind. RJ: I don't mind at all. JLJ: You're a graduate of Vanderbilt University, aka the Harvard of the South [laughter]. What was your major Brother Jackson? RJ: Political science. [End Page 309] JLJ: You must have had really good grades to have been accepted into Vanderbilt. RJ: Yes, I did, I graduated as my school's valedictorian. JLJ: Whaaat? You were your school's valedictorian Brother Jackson? RJ: In fact, I was the first African American ever to graduate number 1 in his class at an integrated high school in Nashville. JLJ: What high school was that Brother Jackson? RJ: Nashville Maplewood High School. JLJ: With those kinds of credentials, you could have gotten into darn near any college in the country. RJ: I'd like to think so. JLJ: So, what year do you enroll in Vanderbilt? RJ: 1968. JLJ: And graduated four years later? RJ: Right, graduated in 1972. JLJ: What was it like going to a lily-white southern school like Vanderbilt University? Now, we all know that Vanderbilt is located in the city of Nashville, but it certainly didn't and still doesn't reflect the city's racial composition. RJ: No, it didn't, not even close. JLJ: What was it like being a student at Vanderbilt during the late 1960s and early 1970s? RJ: It wasn't easy, that's for sure. At any one time there probably were no more than 60 Black students during a given year and may have been as few as 25 during a given year. One year, and I'm positive about this, there were fewer than 20 Black men in the student body. JLJ: Talk a little bit about the climate, Brother Jackson, if you would please. RJ: Not a comfortable environment Brother Jeffries, not a comfortable environment at all. But let me just say this—I had attended a summer program at Vanderbilt, so I knew something about Vanderbilt, the school wasn't a total surprise to me. I had made up my mind that Vanderbilt was not going to affirm my self-worth. JLJ: What did you do in order to mitigate the kind of impact that a school like Vanderbilt could have had on your psyche? RJ: I decided that I wasn't going to live on campus, I wasn't going to be a resident student...

PARENTAL ALIENATION: A SIMPLE BUT POTENTIALLY HARMFUL AND POORLY SUPPORTED EXPLANATION FOR THE COMPLEX PROBLEM OF PARENT CONTACT RESISTANCE/REFUSAL

This session aims to interrogate the concept of parental alienation (PA) as the cause of contact resistance/refusal in divorce and custody disputes. This panel will examine the history and etiology of PA and its variants; discuss its acceptance in the legal, mental health, and scientific communities; propose a methodology for determining the cause(s) of child contact resistance/refusal; and describe some of the negative consequences of a “diagnosis” of PA. PA was first proposed as “parental alienation syndrome” (PAS) by child and adolescent psychiatrist Richard Gardner in the late 1980s as a defense/explanation for allegations of child sexual abuse between separated parents. Lack of scientific validation led to rejection of PAS by courts. Attempts to have a similar construct, parental alienation disorder (PAD), included in the DSM-5 failed as did recent efforts to get PA terminology into the ICD-11. The session will describe the lack of agreed-upon and validated definitions, whether the locus of the problem is with the parent, the child, or both, and treatment programs that include separation of children from their preferred parents, as well as expensive reprogramming camps with significant possible harms and limited evidence of efficacy. Determining the cause(s) of contact resistance/refusal is a complex undertaking for which one evaluator’s approach based upon decades of work is examined. Efforts to buttress PA include declaring it is a form of child abuse. Limitations and flaws in existing research on PA and the legal challenges and appellate cases addressing PA are presented and discussed. PA is an overly simplified and potentially harmful proposed explanation for the complex problem of contact resistance/refusal following separation and divorce.

Análisis del marco teórico-contextual y jurídico-normativo del divorcio por mutuo acuerdo con hijos menores Particularidades en Cuba

The scientific community always appreciates socio-legal impact studies with international significance. An interesting analysis is provided in the theoretical-contextual and legal-normative order on divorce by mutual agreement with minor children, emphasizing their behavior in current Cuban legislation. It starts from the genesis and evolutionary development of the temporal space of the aforementioned legal institution. The foundations that attribute to the knowledge of the notary public the process of divorce are addressed. Technical considerations are shared on judicial divorce and notarial divorce, which demonstrate the benefits of filing at a notary office. The notary public, is unequivocal, the qualified and suitable professional to dissolve the marriage bond, in an extrajudicial seat, while he contributes with his advisory and legitimizing function to safeguard the inherent rights of minor children. The comparative legal treatment of divorce by mutual agreement is analyzed, an issue that is relevant as a basis for further proposals for improvement in the legislative order. Consequently, the study of the Convention on the Rights of the Child and its impact on Divorce by mutual agreement constitutes another point of vital interest that makes this research a valuable proposal for the legal community and contemporary society.

An American Notwithstanding Clause? Between Potestas and Potentia

Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.