Legal Arena Research Articles

Intersectional discrimination in the European legal systems

In the past few years, the phenomenon of multi-grounded discrimination has been debated in the European legal and socio-logical arena under the term “intersectional discrimination”. Intersectional discrimination is referred to where an individual is discriminated against on several grounds at the same time and in such a way that these are mutually constitutive and inseparable. Over time, new manifestations of disadvantage at the intersections between gender, religion, race, and disability emerged in a multicultural Europe. Nevertheless, the European legislature seems to follow a single-axis approach banning only single-grounded discrimination. Although some European courts tried to deal with cases of intersectional discrimination and a number of non-governmental organizations and researchers have devoted considerable time and resources in addressing the effect of multiple forms of discrimination, there is an urgent need to ensure full and systematic recognition of intersectional discrimination at the legislative level. Part I of this paper will provide an overview and analysis of the European Union (EU) anti-discrimination Directives. Part II shows if and to what extent European countries acknowledge and address the phenomenon of intersectional discrimination. Part III will call for a more systematic legal response and propose a new EU Directive addressing intersectional discrimination.

Ethylphenidate: From biomarker to designer drug

The following is a brief background and account of the psychostimulant "designer drug" and curious methylphenidate-ethanol transesterification metabolite, ethylphenidate (EPH; Fig 1). That is ethylphenidate with an "E", not it's well known homolog, methylphenidate (MPH; Ritalin, Concerta, others) – the first-line agent for the treatment of attention-deficit/hyperactivity disorder (ADHD). Note that the only structural difference resides in the ester where EPH has an ethyl group rather than the methyl group in MPH.

Motivated Cognition in Legal Judgments—An Analytic Review

How and when do legal decision makers' preferred outcomes inadvertently drive their judgments? This psychological phenomenon, known as motivated cognition or motivated reasoning, has become an important topic of investigation among scholars conducting experimental research at the intersection of law and psychology. This article presents an overview of that literature, discusses some of its legal applications and implications, highlights areas that require further investigation, and considers some potential ways to curtail the covert operation of motivated cognition in the legal arena.

From ‘the’ Precautionary Principle to Precautionary Principles

The precautionary principle has been widely discussed in the academic, legal, and policy arenas. This paper argues, however, that there is no single precautionary principle and we should stop referring to ‘the’ precautionary principle. Instead, we should talk about ‘precaution’ and ‘precautionary approaches’ more generally and identify and defend distinct precautionary principles of limited scope. Drawing on the vast literature on ‘the’ precautionary principle, this paper further argues that the challenges of decision making under conditions of uncertainty necessitate taking a precautionary approach to decision making that will enable us to understand what particular precautionary principles require of us on a case-by-case basis.

Genomic Research in Indian Country: The New Road to Termination?

Genomic science has generated controversy in the social, legal, and ethical arenas for decades, and indigenous populations continue to be a subject of great interest in this area. This article looks at the recent concept of population genomics, a biotechnology used to help scientists understand how genetic variation relates to human health and evolutionary history. Parts II and III examine the debate among scientists as to the migration of the “first Americans” into North America, a debate that is quickly being influenced by the DNA markers found in the human genome. Part IV surveys the history of scientific research involving indigenous peoples – a history predominantly colored by ignorance and bias – as science was presented as conclusive proof of their savage nature and inferiority as a race. Scientists today proffer evidence that the ancestors of Native Americans were, in reality, colonists who immigrated from Africa, Europe, and/or Asia, and Part V analyzes a number of indicators that point to the possibility of genomic research providing justification for another termination of the special status and rights of Native Americans. Part VI looks at a number of tools that tribes may wish to consider using to help protect the genetic information of their members as they are faced with the seemingly endless need of researchers for Native American DNA. The article concludes that while suppositions of geneticists are in actuality just theories of historic migration, these theories have gained acceptance as fact in mainstream society. Given current indicators, Congress and/or the courts may very well use genomic science to justify another termination of the federal/tribal trust relationship.

Children and the Politics of Cultural Belonging. By Alice Hearst. New York: Cambridge Univ. Press, 2012. 211 pp. $90.00 cloth.

Children and Politics of Cultural Belonging. By Alice Hearst. New York: Cambridge Univ. Press, 2012. 211 pp. $90.00 cloth.In arena of adoption, consideration of the best interest of has arguably become central when facilitating placement of children. One key consideration of the best interest of is cultural environment in which they will grow up. Alice Hearst challenges us to rethink perceptions of the best interest of and how they have been incorporated into adoption prac- tices. Although much of analyses in book focus upon laws and legal cases, book should draw a wider audience of scholars who study range of actors involved in adoption, such as adop- tion professionals, biological and adoptive parents, and adult adoptees.Hearst initially identifies some problem areas in current think- ing on cultural belonging of children with a discussion of theories of multiculturalism, politics of community and communal politics in particular. Subsequently, study explores these problem areas by examining laws and legal cases in three types of adoption: domestic transracial adoption of non-American Indian children (Chapter 3), domestic adoption of American Indian children (Chapter 4), and transnational adoption (Chapter 5). The book's strength lies in how Hearst draws out multiple dimensions of cultural belonging. The author interrogates meanings of cul- tural belonging as it is debated and contested in legal arena. A significant focus of study is on influence of adoption place- ment on communities, particularly marginalized ones.To offer a theoretical contribution, Hearst draws from what Stephen Cornell and Douglas Hartmann (1998: 89) call con- structed primordiality to frame effects of displacement on adopted and foster care children from a community. Thus, adop- tive families endeavor to construct a firm identity for adopted children through blood ties or other types of commonalities in their claim[ing] of [the] child as one of their own, regardless of whether child has spent significant amount of time with group (49). From child's perspective, author argues that going through a process of searching for identity by seeking biological and ethnic origins cannot be dismissed. Moreover, author critiques theo- ries of multiculturalism, which argue that disenfranchised groups should be given autonomy to choose their own identity. Hearst responds that these theories lack applicability to adoptees' experi- ences and argues that most children typically do not have power to make choices as to which community or family they can belong.By placing children's cultural belongingness as a contested issue in context of three adoption types that are governed by different laws, Hearst shows how they all produce uneven responses from communities whose culturally and racially margin- alized identities are at stake. The study traces disputes around several adoption laws. For example, Hearst discusses how racial- matching versus transracial adoption practices occurred after enactment of Multiethnic Placement Act of 1994 and Inter- ethnic Placement Provisions of 1996 (MEPA-IEP). …

Standardisation of Property Rights in European Property Law

European Property Law is in development. In the last decades it has been a study of theory rather than of practice as it is usually considered too diverse and too much differing between countries to ever achieve meaningful results when trying to seek harmonisation. Recently, however, property law is moving to the center of the debate on the making of European private law. This does not take away the need to look at fundamental questions of property law. In face, the piecemeal approach of harmonisation taken in European Union private law especially creates problems for property law with its doctrinally coherent national systems.One of the most essential issues in property law is the numerous clauses of property rights. The closed list of property rights from which parties much choose when they seek to create a new property right. The principle has recently received a lot of attention and this has greatly enriched the property law debate. Numerous clauses have been analyzed from a legal comparative, but also from an economic point of view. Especially in the economic analysis of numerous clauses standardisation plays a crucial role. By standardisation Thomas Merill and especially Henry Smith argue information costs externalities can be minimized.This paper discusses the descriptive value of standardisation theory in property law for the European legal arena, but then moves to a normative level and investigates whether standardisation theory can also be used as a basis for the future development of European property law. Especially by joining insights from standardisation theory with fundamental aspects of publicity, i.e. the differentiation of classes of third parties on the market, this paper offers a way forward for the development of property law in Europe and beyond.

Pediatric Forensic Neuropsychology

Pediatric Forensic Neuropsychology

How to Transform a ‘Place of Violence’ into a ‘Space of Collective Remembering’: Italy and its Traumatic Past

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"> <span>This paper seeks to analyse cultural trauma theories<br /> and their consequences as well as their potential applicability to cases of collective trauma where access to the legal arena in the rehabilitation process is not possible. When ‘state terror’ occurs, such as in Latin America, or, more arguably Italy, access to the legal arena is systematically denied through a variety of criminal strategies. In these cases, the cultural working through of trauma takes place on the aesthetic level. What are the consequences of this process both for the inscription of the crucial event in public discourse and for its relationship with justice? Moreover, how </span><span>do aesthetic codes affect the public definition of justice and a </span><span>collective understanding of what happened? </span> </div></div></div>

Symptom Validity Testing in Somatoform and Dissociative Disorders: A Critical Review

When patients present with unusual, atypical, and difficult-to-understand complaints known as dissociative and somatoform disorders or medically unexplained symptoms, clinicians may administer symptom validity tests (SVTs) to determine whether or not the patient exhibits negative response bias. Such tests are especially informative in a context where incentives play a substantial role (e.g., the legal arena). If patients fail SVTs and exhibit negative response bias, how should that bias be interpreted? Some authors have argued that psychological problems (e.g., unconscious conflicts and depression) and circumstances (e.g., a cry for help) may explain such bias. In the current article, we critically review this “psychopathology = superordinate” position. We argue that (1) there is no empirical evidence to suggest that psychological problems may foster SVT failure per se and (2) that the “psychopathology = superordinate” position invites circular argumentation: to clarify the nature of the atypical symptoms, SVTs are administered and a negative response bias is found, which is explained away by the atypical symptoms. Negative response bias allows for only one conclusion: the patient’s self-report of symptoms and life history can no longer be taken at face value.

Modern Community Mental Health: An Interdisciplinary Approach

Modern Community Mental Health: An Interdisciplinary Approach

Nanotechnology: An Emerging Area of Scientific Issues and Legal Challenges

Nanotechnology is based on the convergence of several disciplines of science and technology. India though entering late in this field has been able to make a mark, however, there is a long way to go both in the scientific and legal arena. This paper initially focuses on the scientific development of nanotechnology in India and thereafter on various acts and regulations that deal with nanotechnology in India.

Lawyers' Independence and Collective Illegality in Government and Corporate Misconduct, Terrorism, and Organized Crime

The attached article argues that the conception of lawyers' independence invoked by commentators in the wake of disasters such as Enron is too amorphous a concept to inform analysis. Instead, this article views legal practice as a dialectic between branding and gatekeeping. All lawyers seek to build a brand - to establish a professional identity that is appealing to clients. In addition, however, the legal system requires that all lawyers practice gatekeeping - acting as filters to protect courts, third parties, and the public from misrepresentation or overreaching. To act as an effective intermediary between citizens, entities, and the state, lawyers must achieve an equipoise or balance between branding and gatekeeping norms. The article sets out an equipoise model, and applies it to three important legal arenas: disqualification of criminal defense lawyers, including alleged in-house counsel for the mob; regulation of government misconduct in terrorism prosecutions; and provision of legal advice that allegedly facilitates illegal activity by government, corporations, or terrorist groups.

Gopika Solanki: Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India

In Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India, Gopika Solanki provides a convincing defence of the Indian policy of legal pluralism for governing marriage and divorce among Hindus and Muslims. The author contends that, by ‘‘split[ing] its adjudicative authority with social actors and organizations in the regulation of marriage and divorce among a sector of religious and caste group and the other actors’’ (p. 10), the Indian state simultaneously avoids leaning towards legal centralism and an essentialist version of legal pluralism. Solanki supports this claim with reference to state laws, societal laws, legal actors, and their interactions in formal and informal legal arenas. This ethnographically rich text begins by describing and explaining, a model of ‘shared adjudication’ (p. 10). The author contends that this model is unique to India. Founded on values of both state and customary law, this model focuses on state-society interactions and their relation to resolving conflicts in family, marriage and divorce. Although the state ‘‘does not relinquish its authority to govern the family’’ (p. 11), it shares the adjudicative authority with societal actors and institutions in order to avoid legal centralism. Similarly, even though the state recognizes both religious and customary laws—and provides an option to its citizen to opt out of religious laws—it avoids complete legal pluralism by expressively not establishing religious and customary courts and by enacting secular law to govern interreligious marriages. In Chapter 2, Solanki explains, how the dual functions of the shared adjudication model overcomes the classic state versus society/legal versus illegal dualism by opening up the possibility to make, unmake, or reform the fixed construction of religious memberships in diverse legal sites.

Jurisdictional and Immunity Issues in the Story of Enrica Lexie: A Case of Shoot &amp; Scoot Turns Around!

The Enrica Lexie incident has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St. Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident. The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code. The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state officials. In addition, I suggest some possible outcomes of the case.

Comparative legal cultural analyses of international economic law: a new methodological approach

The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. This conflictual interaction can impede or block the success of that law. While present in domestic legal systems, these conflicts are more likely, and may be deeper, between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. This identification requires the examination of the relevant legal systems with legal culture in mindca legal cultural analysis. However, this methodology is rarely employed. To the extent that we do see legal cultural analyses, they are applied almost exclusively in the domestic arena.When it is applied across legal systems, it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores this methodology and argues that it is possible and valuable

ECONOMICS OF POKER: THE EFFECT OF SYSTEMIC CHANCE

For more than a millennium, people have been drawn to card games because they provide an interesting and entertaining forum for the elements of chance and skill to play out. Current players risk running afoul of the law when, in the course of play in a game of chance, money is wagered and won or lost. Several recent criminal and civil court actions in the U.S. have focused on the extent to which skill is a factor in the game of poker and this question is the subject of much debate in legal and political arenas. If chance is the driving force underlying the economics of poker, some states are considering the possibility of regulating―and thus legalizing―poker for the potential revenues it may generate. If poker is a game in which outcomes are dominated by skill, most states would lack the regulatory power over this multibillion dollar industry. This paper examines the factors affecting players’ returns on investments in poker and presents the results of an analysis of one billion hands of real online poker games.

WEAPONS OF SEX, WEAPONS OF WAR

Recent international attention has focused on designations of rape and sexual violence in conflict zones. The most formative debates on this issue centre on the 1990s-era conflicts in the former Yugoslavia and Rwanda, which also involved heated debates amongst feminists over designations of rape as genocide. While the International Criminal Tribunal for Rwanda case, the Prosecutor v. Akayesu, resulted in the first formal charge of wartime rape as genocide within international criminal law, the first case to charge wartime rape as genocidal occurred in US federal court. This project looks for the overarching social and political meaning of the contemporary international legal focus on rape and sexual violence. It examines why, how, and to what extent US and transnational feminist legal academics and activists transmitted and secured their understandings of the relationships between sex, violence and ethno-religious difference within the international legal arena. In doing so, I argue that their participation in the contemporary recognition and narration of sexual injury in a global context both retreads and reconfigures the heated 1980s-era US Sex Wars debates on the workings of gender, sex, race and power.

Double Jeopardy Reform: Political Expediency or Much Needed Change?

Double jeopardy, or a plea of autrefois acquit/convict,1 is in its simplest form, a doctrine that no person shall be tried twice for the same offence. This paper examines the historical context of the doctrine and traces its passage through to the 20th century and describes its several principles and application in some detail. The paper also examines the rationality for reform in light of important judicial cases, such as R v Carroll2, which lead to media sensationalism and knee-jerk reactions from politicians who were more concerned about re-election than effective, principle-based law reform. In doing so it will examine the reforms it has undergone in England, New Zealand and Australia during the 21st century and whether the Australian reforms are a matter of media-driven political expediency or much needed change in a contemporary Australian legal arena. Whilst law reform is always necessary in an ever-changing society with ever-developing forensic science, it will be argued that such changes require careful consideration and should not involve hasty political reactions to media campaigns and poll-based political law-and-order platforms. In this respect, and more specifically, reform should not interfere with the rule of law3 which underpins Australian democracy, particularly so with respect to the maintenance of the separation of powers and the independence of the judiciary to ensure confidence in judicial outcomes.

Jewish Money, Jesuit Censors, and the Habsburg Monarchy: Politics and Polemics in Early Modern Prague

In the second decade of the eighteenth century, a trial unfolded in the city of Prague that challenged the transnational philanthropic ties of Jews. Beginning as a dispute between a creditor from Ottoman Palestine and Prague’s chief rabbi, David Oppenheim, the affair soon took on interconfessional dimensions, engaging the proprietor of Prague’s coffeehouse, a Jesuit censor of Hebraica, and the agents of the Habsburg monarchy. The dispute’s unfolding in the legal arena offered opportunity for polemic and created a context in which claims about Jewish loyalty, belonging, and trustworthiness could be publicly interrogated in light of conversionary agendas and jurisdictional contests over the power—and control—of the printed word and of Jewish global networks.