Legal Academic Literature Research Articles

The Investigatory Powers Act 2016 and Connected Vehicles: A New Form of Panspectric Veillance Looming?

Abstract Connected and autonomous vehicles (CAVs) currently exist in varying states of readiness to, at one end of the spectrum, assist the driver in normal driving activities and at the other operate in fully autonomous mode, requiring no driver input at all. In facilitating these features, CAVs create, give access to, and allow communication of the data produced. The further along the autonomous scale CAVs progress, the greater the data generated, which are being harvested by original equipment manufacturers (OEMs), often unwittingly by the end user. The operation of the Investigatory Powers Act 2016 gives government agencies power to compel the retention and access to these data. Here we argue that the definitions within the Act result in CAV OEMs being subject to retention notices of the data generated by these vehicles. This issue, its extent and potential for abuse, and the lack of protection for those associated with the use of CAVs, hitherto unexamined in the legal academic literature, is the focus of this paper.

General and special types of exemption from criminal liability: appointment, purpose, design features

The subject of the article is the problem of compliance of general and special types of exemption from criminal liability with the legal nature of criminal law, as well as the logical consistency of criminal law matter.The purpose of the article is to establish the key factors influencing the construction of the content of general and special types of exemption from criminal liability by studying the goals, purpose and legal nature of the latter.The methodology includes dialectical, comparative legal methods, systematic analysis of legal academic literature, as well as interpretation of Russian criminal law.The main results, scope of application. The establishment of norms providing for the release of persons who have committed crimes from criminal liability in the law is justified by the disappearance (reduction) of the public danger of the committed act and (or) the personality of the person who committed it. Modern trends of criminal policy require the presence of such an instrument in the legislation, which allows avoiding unnecessary criminal repression, restoring the rights of victims. At the same time, the consolidation of special types of exemption from criminal liability in the text of the Special Part of the Criminal Code of the Russian Federation pursued two main goals: (1) To avoid the onset of more serious consequences (causing death or harm to the health of hostages); (2) Revealing and disclosure of latent (hidden) crimes. However, despite the indicated feature, special types of exemption from criminal liability should be built taking into account the tasks facing the criminal law of Russia and the goals of criminal liability.Conclusion. The content of the types of exemption from criminal liability is directly influenced by the purpose and goals of this criminal legal institution. The further improvement of this legal institution should be carried out exclusively taking into account the tasks facing the domestic criminal law.

The Truman Show: The Fraudulent Origins of the Former Presidents Act

When President Donald Trump was impeached for a second time, many commenters pointed out that, if Trump were to be convicted by the Senate, he would likely lose millions of dollars in future taxpayer-funded benefits. These benefits are provided to ex-presidents by the Former Presidents Act, a 1958 statute of considerable political significance and ongoing controversy, that nevertheless has to this point been ignored completely by the legal academic literature. This Article represents the first sustained discussion of the FPA in that literature. It concludes that the statute should be revoked — and it centers its critique on the law’s until-now unrevealed fraudulent origins. Essentially the only argument ever put forward in either scholarly or popular discourse to justify the existence of the FPA is that it was passed as a response to former President Harry Truman’s financial struggles, and in particular because he refused to exploit his status as a former president to ameliorate them. Using recently released and until now unexamined archival evidence, this Article demonstrates that, in a complete contravention of the existing standard historical record, Harry Truman was, as a direct result of being president, a very wealthy man on the day he left the White House, with an estimated net worth, in relative economic terms, of approximately $58 million in 2021 dollars. The Article reveals that this wealth was a result of both Truman’s enormous presidential salary — several times larger, in real terms, than the current salary for the office — and, more problematically, of the evident fact that Truman misappropriated essentially all of the multi-million dollar — in 2021 terms — presidential expense account that was set up for him by Congress at the beginning of his second term. The Article also reveals that, again contrary to the current historical understanding, Truman made another fortune after he left the presidency, by doing precisely what he claimed he was not doing, that is, exploiting his status as a former president to maximum economic advantage. Indeed, by the time Congress passed the FPA in response to Truman’s various claims that he was at least teetering on the brink of potential financial distress, Truman’s net worth was, in relative economic terms, approximately $72 million in 2021 dollars. In a precise inversion of the meaning ascribed to it by the standard historical narrative, Harry Truman’s actual financial biography illustrates exactly why the Former Presidents Act has always been a bad law, that has never had any reasonable justification in public policy.

Philosophy of Law, Jurisprudence and Science: Common Features and Differences

The article provides an overview of complex and ambiguous relations of the philosophy of law and legal scholarship with science, as well as tries to cover their similarities and differences. Consequently, the article provides critical analysis of contemporary radically opposite approaches to the interpretation of this issue present in philosophical and legal academic literature. The article criticizes both the approaches denying the alliance between the science and philosophy of law thus reducing it to ideology only, as well as those viewing philosophy of law an academic discipline principally different from legal scholarship attributing the latterto “legal dogmatics” only. Contemporary postmodern (postnonclassical) ideas about science (scholarship) focusing on inseparable links between cognitive, anthropological (applying human as the unit of measurement) and axiological sides of the reflection of reality do not provide groundsfor sharp differentiation between the object of the study and its subject, which is the basis for the abovementioned approaches. In fact, they are relatively autonomous elements of whole, integrated developing systemsincluding law generally, as well as legal scholarship and the philosophy of law. The abovementioned arguments provide basis for the article to differentiate common features of the philosophy of law with modern legal scholarship (those being the existence of creative subject, common goal, application of rational and logical evidence in objectivation of рhilosophical and legal hypotheses, concepts, theories etc.), as well as difference between them (e.g. instability of its relation to practice, frequent absence of actual real life corresponding features, special cognitive activities built on self-analysis, ideas and special world perception (philosophical reflection), tight connection to art in addition to science etc.). These ideas get proof from the short analysis of science and art correlation specifics pointed out in major modern philosophical and legal concepts (doctrines of natural law, legal positivism,sociological jurisprudence and their variations). The article stipulates that they have to be judged not by application of scientific criteria of “true-false” but by application of their interdependence concept.Finally, the author stipulates that unlike legal scholarship being more international than national, the ideas of legal philosophy (including those accepted widely by different nations) are viewed through the prism of national traditions, national legal culture, mentality and cognitive abilityof the nation, thus accepting solid national features, providing also grounds for differentiation of the philosophy of law from legal scholarship thus making it a special method of world perception being distinct from science.

Dugenets A.S. Administrative liability: features of legal relations involving correctional agencies

The subject of the research is the modern administrative law and administrative procedural doctrine shaping the view of the contents and nature of the legal relationship of administrative liability involving correctional agencies. The purpose of the article is to confirm or disprove the hypothesis about significant features of legal relations of administrative liability arising, developing and terminating in the field of execution of criminal penalties. The methodology includes systematic analysis of legal academic literature, interpretation of Russian legislation on administrative offences. The main results. The static (universal for all law enforcement agencies) structure of the institution of administrative liability acquires its qualitative originality in the process of its practical implementation in the law enforcement activities of the relevant bodies and officials authorized by the state to bring to administrative responsibility through appropriate legal relations. The main part of the legal relations of administrative responsibility that develop in the activities of correctional institutions and pre-trial detention centers are of a security nature. These relations are primarily aimed not at implementing the main tasks of the legislation on administrative responsibility, but at achieving the basic goal of the func- tioning of penitentiary institutions, i.e. ensuring the public safety of objects of the Federal Penitentiary Service of Russia. Identification and proper procedural registration of the fact of an administrative offense will be the basis for the emergence of the corresponding protective legal relationship. The authors make proposals aimed at improvement of normative regulation and practice of application of administrative coercive measures, enforced by employees of the Federal Penitentiary Service of Russia. It is necessary to radically change the approach to the administrative and jurisdictional practice of correctional agencies by expanding the application of administrative responsibility to convicted persons and persons held in pre-trial detention centers. Conclusions. Administrative liability relations involving correctional agencies have specific features. The application of such liability is aimed at maintaining the normal legal regime and ensuring the public safety of the relevant penitentiary facility. Administrative responsibility should be applied by correctional agencies to citizens who are located on the territory of the penitentiary institution and pre-trial detention center, civil personnel of the penitentiary system and special agents. A doctrinal definition of the legal relationship of administrative liability involving correctional agencies is formulated by authors.

Artificial Intelligence in the Administration of Justice: Theoretical Aspects of the Legal Regulation (Articulation of the Issue)

Prospects of the use of artificial intelligence (AI) in the administration of justice actualize a set of legal issues that are not only applied but also theoretical in nature, including the issue of the formation of the legal concept of “artificial intelligence” for the purposes of legal regulation. The legal academic literature describes a tendency to attribute signs of subjectivity to artificial intelligence, in connection with which the paper attempts to carry out a critical analysis of foundations of such approach. The authors explain inadmissibility of inclusion of such a characteristic as a legal capacity in the concept of “artificial intelligence.” They also argue that in jurisprudence it is useless to apply definitions of artificial intelligence based on the description of technical-technological characteristics because it has no influence on the legal regulation. The incorporation of artificial intelligence as a sociocultural phenomenon into legal reality requires either an independent term for its designation in the field of law or the filling of this concept with a specific legal content. The development of such content should be carried out within the framework of the paradigm of the legal science, since the use of categories and definitions of other branches and spheres of public life without being adopted to the legal field, is unlikely to be effective for the regulatory purposes.

Spreadsheets for Legal Reasoning: The Continued Promise of Declarative Logic Programming in Law

The legal services market is one in which there is too much demand, and too little supply. One method of increasing supply in a market is to increase efficiency by automating. Automated legal services require the automation of legal reasoning. Declarative logic programming (DLP) has long been recognized as well-suited to the automation of legal reasoning. This dissertation reviews the legal academic literature surrounding the automation of legal services using DLP, which has been discussed primarily with regard to how it can be used to build “expert systems”. This dissertation argues that most of the criticisms of the use of expert systems for automating legal services can be addressed by using modern DLP technologies, conceiving of the encoding as being representative of an interpretation of the law rather than the law’s correct meaning, and increasing ease-of-use for non-programmers. The dissertation then proposes a set of 7 criteria of suitability for DLP tools developed from a legal services automation perspective. A survey of available tools is performed, comparing the available tools to these criteria. The dissertation advocates for the development of open source DLP tools that have both accessibility features (ease of use and price), and at least one of the five technical features. The dissertation concludes with the description of an opensource tool developed by the author as an ABA Innovation Fellowship project, which is open-source, free, aims to be easy to use, and implements case-based reasoning to allow users to automate reasoning around open-textured legal concepts.

Brain death in early pregnancy: A legal and ethical challenge coming to your intensive care unit?

Increasingly, reports are emerging of maternal physiological support after brain death in pregnant women declared brain dead long before the gestational age of foetal viability. While these 'miracle babies' often receive significant media attention - such as the recent case of Catarina Sequeira - it is difficult to estimate the probability of a live birth in such circumstances given a clear publication bias in favour of reporting good outcomes. In a number of highly publicised cases, continuation of maternal physiological support after brain death has been attempted against the express wishes of the patient's family in jurisdictions where a foetal right to life is given weight in law. The legal issues around discontinuation of maternal physiological support after brain death have not yet been assessed by a UK court. The scenario is easily envisioned, however, where conflict emerges as to the appropriateness of such support. While there is no statutory definition of death in the UK, the courts have accepted brain-dead patients as legally dead upon completion of brainstem testing. However, as UK law grants few explicit legal rights to a foetus, it is unclear as to how conflicts are to be resolved. This article is not intended as a systematic review of the medical or legal academic literature, nor as a review of the clinical management of the pregnant brain-dead patient; rather, it aims to summarise the evidence base for maternal physiological support after brain death and the relevant case law. Using a recent case as an example, this article will outline the legal approach to death in the UK, contrast the status in law of a brain-dead mother and her foetus, and advance an argument of the circumstances in which maternal physiological support after brain death may be ethically justifiable. The authors hope this will assist the UK intensivist in the complex decision-making such cases demand.

From Each According to His Ability: An Analysis of Endowment Taxation and Potential Earnings

This Article has two primary aims. The first is to provide an in-depth survey of recent legal academic literature on endowment (or ability) taxation, which is a tax on a person’s maximum potential earnings over a given period. This scheme of taxation, which has for some time enjoyed favor as an ideal among economists, has recently gained significant support from tax law scholars as well. The second aim is to demonstrate that a seemingly elegant justification for the endowment tax, which attempts to reconcile the demands of equity and liberty within a certain luck egalitarian framework — Ronald Dworkin’s “equality of resources” — is not ultimately successful. Thus, the firm ness of the endowment tax’s normative foundations remains far from settled.

Endowment Taxation and Equality of Resources

This Article has two primary aims. The first is to provide an in-depth survey of recent legal academic literature on endowment (or ability) taxation, which is a tax on a person’s maximum potential earnings over a given period. This scheme of taxation, which has for some time enjoyed favor as an ideal among economists, has recently gained significant support from tax law scholars as well. The second aim is to demonstrate that a seemingly elegant justification for the endowment tax, which attempts to reconcile the demands of equity and liberty within a certain luck egalitarian framework—Ronald Dworkin’s “equality of resources”—is not ultimately successful. Thus, the firmness of the endowment tax’s normative foundations remains far fromsettled.

THE NEW CRITERIA FOR EXPERT EVIDENCE IN BRITISH COURTS – CASE LAW, STATUTORY RULES AND A NEGLIGENCE CASE STUDY

This work aims to analyse the legislation proposed by The Law Commission in Great Britain in order to establish statutory criteria for expert evidence in court. The proposal is assessed against the amendment of the Criminal Procedure Rules (CPR) initiated by The Government. From this comparison implications for expert witnesses are derived. For illustrative purposes, the case study of fictitious divorce proceedings of Peter Morgan is dealt with. The study shows legal remedies available to a party against its expert witness in negligence cases.  Methodologically, expert evidence admissibility criteria are discussed on the background of common law rules and the Criminal Procedure Rules (2015). Legal academic literature is consulted to enrich the argument. The findings show that the Criminal Procedure Rules (2015) are rooted in settled case law, albeit stressing expertise enhancement and professional qualifications. The discussion of the Peter Morgan case study provides for a legal route for negligence claims based on the case law of Jones v Kaney. The originality of this work is based upon a thorough analysis of case law and legal writings, with the focus on newly introduced Criminal Procedure Rules and recent landmark cases.

Beyond the Double Veto: Land Use Plans As Preemptive Intergovernmental Contracts

The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world—our world—where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively pro-housing factions in city politics more political leverage and policymaking discretion and also facilitate regional housing deals.

Regulating the new information intermediaries as gatekeepers of information diversity

Purpose– The purposes of this paper are to deal with the questions: because search engines, social networks and app-stores are often referred to as gatekeepers to diverse information access, what is the evidence to substantiate these gatekeeper concerns, and to what extent are existing regulatory solutions to control gatekeeper control suitable at all to address new diversity concerns? It will also map the different gatekeeper concerns about media diversity as evidenced in existing research before the background of network gatekeeping theory critically analyses some of the currently discussed regulatory approaches and develops the contours of a more user-centric approach towards approaching gatekeeper control and media diversity.Design/methodology/approach– This is a conceptual research work based on desk research into the relevant and communications science, economic and legal academic literature and the relevant laws and public policy documents. Based on the existing evidence as well as on applying the insights from network gatekeeping theory, this paper then critically reviews the existing legal/policy discourse and identifies elements for an alternative approach.Findings– This paper finds that when looking at search engines, social networks and app stores, many concerns about the influence of the new information intermediaries on media diversity have not so much their source in the control over critical resources or access to information, as the traditional gatekeepers do. Instead, the real bottleneck is access to the user, and the way the relationship between social network, search engine or app platforms and users is given form. Based on this observation, the paper concludes that regulatory initiatives in this area would need to pay more attention to the dynamic relationship between gatekeeper and gated.Research limitations/implications– Because this is a conceptual piece based on desk-research, meaning that our assumptions and conclusions have not been validated by own empirical research. Also, although the authors have conducted to their best knowledge the literature review as broad and as concise as possible, seeing the breadth of the issue and the diversity of research outlets, it cannot be excluded that we have overlooked one or the other publication.Practical implications– This paper makes a number of very concrete suggestions of how to approach potential challenges from the new information intermediaries to media diversity.Social implications– The societal implications of search engines, social networks and app stores for media diversity cannot be overestimated. And yet, it is the position of users, and their exposure to diverse information that is often neglected in the current dialogue. By drawing attention to the dynamic relationship between gatekeeper and gated, this paper highlights the importance of this relationship for diverse exposure to information.Originality/value– While there is currently much discussion about the possible challenges from search engines, social networks and app-stores for media diversity, a comprehensive overview in the scholarly literature on the evidence that actually exists is still lacking. And while most of the regulatory solutions still depart from a more pre-networked, static understanding of “gatekeeper”, we develop our analysis on the basis for a more dynamic approach that takes into account the fluid and interactive relationship between the roles of “gatekeepers” and “gated”. Seen from this perspective, the regulatory solutions discussed so far appear in a very different light.

The case for clinical scholarship

<p>Lines between theory and practice have been blurred considerably in law teaching already, with the spreading influence of clinical legal education around the world.2 In this article, I address the implications of this trend on legal scholarship – the aspect of legal academia where theory-practice tensions tend to be strongest. Following a brief discussion of clinical education’s still uncertain place in the legal academy, I turn to the role of legal scholarship and the potential contributions of clinical education to legal academic literature. Rejecting the strongest criticisms voiced by some clinicians to the effect that scholarship adds little or no value to the primary mission of legal education, which is the training of future lawyers, I explore the many facets of an emerging “clinical scholarship” informed by clinical practice. I also reject the notion that scholarship is less important for clinicians than for other law faculty, by making the case that clinical scholarship strengthens clinical legal education by helping advance its two main goals of improving the quality of law practice and enhancing the public role of the profession.</p>

Aspirations and Settlement

The legal-academic literature on litigation settlement describes a range of factors that affect settlement outcomes, but litigant or ideal goals, are not among them. Negotiation scholars, however, routinely claim that high aspirations can improve bargaining outcomes. This article presents a theory of settlement that reconciles these competing approaches by situating negotiator aspirations within the standard legal-academic model of settlement. Based on that theory, the article offers a series of hypotheses concerning the role of aspirations in settlement negotiations, and then reports the results of experimental tests that demonstrate the hypotheses to be plausible. Finally, in light of the theory of the role of aspirations, the article reconsiders the usual prescriptive advice offered by negotiation scholars that litigants should set high aspirations for themselves in bargaining situations.

Regulatory Cooperation and Competition - The Search for Virtue

This article argues that proponents of international regulatory cooperation need to confront the welfare losses that might occur due to missed opportunities for cooperative regulatory competition. Cooperative regulatory competition takes places when jurisdictions agree to honor formal and manipulable choice-of-law rules, such as contractual choice, the place-of-incorporation rule, and the territoriality principle, that enable persons engaged in international business to pick regulatory systems that will govern their transactions. I review current opportunities for this kind of competition with respect to securities regulation, bankruptcy, intellectual property, and antitrust. I then discuss the substantive case for maintaining or expanding these opportunities in light of potential benefits from races to the top. I base my argument partly on new research by cognitive psychologists on fast and frugal heuristics. This research undermines arguments against respecting individual choices that have dominated much of the discussion about regulation in the legal academic literature over the last fifteen years.