Legal Arena Research Articles

Issue of pendency of cases in Indian courts and way forward

Delay defeats the justice’ is the well-known saying in the legal arena. Indian judiciary is severely burdened due to large number of pending cases. Delay in justice delivery system creates sense of insecurity in the minds of citizens. Judiciary is one of the very important pillars of the democratic society to dispense the justice to the needy. “Justice Delayed is Justice Denied” is another fact of the society. There are various reasons of delay in disposal of cases in Indian Courts. Problem of pendency of cases is a matter of concern for entire judicial system in the Country. This article tries to identify the reasons of delay in disposal of cases in the Indian courts and suggest probable solutions to resolve the issue of pendency. Effective use of alternative disputes mechanism and proactive measures by all stakeholders to curb the delay in the legal proceedings would help to save time during the actual conduct of the case and justice delivery system can become more effective resulting into timely disposals of cases thereby ensuring faith of fellow citizens in the judicial administration

Demanding Racial Equality: Free People of Color and the 1791 Concordats in Saint-Domingue

ABSTRACT This article examines a pivotal moment in the campaign for political rights mounted by free men of colour in Saint-Domingue during the era of the French and Haitian Revolutions, when the leaders of the free coloured movement were able to force white political leaders to agree to a revolutionary set of demands known as the concordats. Having taken place in the shadow of the August 1791 slave rebellion in the northern part of the colony, the concordats have traditionally been overlooked and understudied by historians of the Haitian Revolution; however, they reveal valuable insights into the political thought of Saint-Domingue’s free coloured leaders, who sought to erase white supremacy in political, legal, and social arenas while simultaneously maintaining slavery.

Law of the Forest: Early Legal Governance in Bosnia-Herzegovina during the Inter-Imperial Transition between Ottoman and Austro-Hungarian Rule, 1878–1901

This article investigates the capacity and quality of governance through the prism of forest use regulation in Bosnia-Herzegovina during the inter-imperial transition between Ottoman and Austro-Hungarian rule. It does so by bringing the question of access to natural resources into the frame of imperial governance formation, which is analyzed from the perspective of legal regulation of ownership and usage rights of forests. The analytical focus is set on the early phase of Austro-Hungarian occupation in Bosnia-Herzegovina, which was marked by political uncertainties and a legal arena where multiple and often conflicting norms coexisted. It shows how the consolidation process of legal arrangements and administration apparatuses did not follow any linear, teleological development towards a strong imperial state or homogenous Rechtsstaat that simply arrived and set up its governing institutions. Instead, governing bodies soon found their interests clashing with those of other local parties. Bureaucracy developed through time- and place-bound practices, which often had to adjust to complex social and environmental realities. During this process multiple attempts failed, while certain practices were implemented unevenly. In the process of asserting its own interests, the imperial administration relied on Ottoman legislation, which gradually became modified, resulting in legal pluralism and entangled imperial legacies.

О некоторых аспектах взаимодействия международного и национального права

This article discusses the main aspects of the interaction of international and national law. Special attention is paid to the study of modern trends in the interaction of states in the international legal arena. This article examines the problems of reception, implementation, integration of the norms of law of international and national legal systems. The issues of adoption and reflection in the Constitution of the Russian Federation of generally recognized principles and norms of international law are touched upon. The forms of interaction of international and domestic norms of law, as well as their mutual influence, are considered.

Toward a common language for quality issues in forensic science

AbstractThe call for transparency with regards to the disclosure of errors in forensic science has permeated dialogues within the field, the legal arena and the public domain. While the challenges of meeting this need have been debated, no consistently accepted approach to recording or disclosing critical issues in forensic science has been developed. Part of the solution may lie in the quality system structures already present in forensic service providers world‐wide. However, while quality systems themselves may be standardized, the language used within them is not. We argue that the development of a common language for quality issues in forensic science may provide the key to unlocking this crucial information to support collaboration, continuous improvement, and the fundamental understanding of “error” in forensic science.This article is categorized under: Forensic Chemistry and Trace Evidence > Trace Evidence Jurisprudence and Regulatory Oversight > Communication Across Science and Law Jurisprudence and Regulatory Oversight > Interdisciplinary Collaboration Forensic Chemistry and Trace Evidence > Presentation and Evaluation of Forensic Science Output

Administrative Independence Under EU Law: Stuck Between a Rock and Costanzo?

EU law places a number of requirements on administrative authorities that puts them in potentially invidious positions; while EU law today does not require institutionally independent administrative authorities or provide protection for the independence of authorities beyond the field of data protection, it does require administrative authorities to act independently through the loyal and effective enforcement of EU law. This requirement of acting independently without institutional independence raises certain implications for the role of administrative authorities acting within the hierarchical administrative orders of Member States. Using the case of Sweden – a Member State where administrative authorities enjoy significant constitutionally protected independence in the application of law and decision of cases – this article argues that the effect of EU law obligations of effectiveness and loyalty is a weakening of the hierarchical influence of the government over its own authorities, with a resulting shift of influence towards the legal arena through the provision of politically expedient interpretations of EU law. The invidious position of administrative authorities within the scope of EU law is likely to make them vulnerable to such influence, which may ultimately interfere with the effective administration of EU law. Administrative independence, EU-law, principle of effectiveness, national institutional and procedural autonomy, distributed administration, national administrative authorities, constitutional law, Costanzo, Tele2/Watson

The Cost-Effectiveness of Psychodynamic Therapy: The Obstacles, the Law, and a Landmark Lawsuit

ABSTRACT Psychotherapy, especially dynamic psychotherapy and psychoanalysis, has been poorly supported by insurance although the Mental Health Parity Act mandates benefits for mental health care at parity with other health care and The Affordable Care Act lists mental health care, including psychotherapy, as an Essential Health Benefit. Limiting insurance support for psychotherapy turns away very ill, especially poorer patients who forego treatment and incur increased medical costs and disability. Patients with personality disorders, chronic anxiety depression, chronic illness and comorbidity require extended, often intensive, psychotherapy for optimal recovery. Brief cognitive-behavioral therapy is seen as a “gold standard” and “most evidence-based” although its research protocols study subjects not typical of most patients and who achieve only short-lived improvements. Research finds psychodynamic therapies to be highly cost-effective, equal to other efficacious therapies in improving symptoms, and also superior in improving maladaptive interpersonal relationship patterns, a high-risk factor for mortality. Knowledgeable attorneys and expert witnesses were key to the 2019 successful class action lawsuit against United Behavioral Health for declining to cover research supported generally accepted standards for mental health care and for a subsequent California state law mandating sufficient insurance coverage. To defend it in legal and policy arenas, providers and advocates for psychodynamic psychotherapy should familiarize themselves with its supporting research and the laws that demand its provision.

Grassroots mobilization in Brazil’s urban Amazon: Global investments, persistent floods, and local resistance across political and legal arenas

• We analyze how the urban poor mobilize against floods in the context of a major urban development project in Latin America. • We find a mix of optimism and skepticism regarding the potential changes brought by political and legal mobilization. • The judicialization of flood-related claims in the legal arena coexists with social mobilization in the political arena. • For grassroots movements, litigating against social-ecological injustices is a means to foster better urban governance. By the 1980s, the Brazilian Amazon was already an urbanized forest. A large portion of its population was living in non-rural areas attracted by better service provisioning and economic opportunities in fast-developing urban centers. Located at the Amazon Estuary-Delta, Belém is the Amazon’s largest metropolitan area, marked by informal urban expansion, and serving as an illustrative case of the opportunities and challenges with which urban populations deal in the region. Faced with significant pressures of absent infrastructure, high rates of poverty, precarious settlements, and ever more frequent flood events, already in the 1980s, Belém was home to the biggest urban reform project of its time in Latin America: The Macro-Drainage Project of the Una River Watershed. Costing over 300 million USD, the project was intended to have a multilevel governance system through which the Inter-American Development Bank and local government could coordinate project activities. Yet, due to the combination of poor infrastructure and changing rainfall patterns, about half a million people currently remain vulnerable to flood hazards and property damages. Our analysis uses a socio-legal approach to studying grassroots mobilization against the violation of social and environmental rights aggravated by floods. We also draw on Ostrom’s concepts of action arena and action situation to examine collective action across political and legal arenas within which individuals, grassroots organizations, and the state negotiate/contest flood-related issues. Conducting archival and ethnographic research, we find a story of conflict and cooperation between the civil society and political and legal actors, which accounts for a mix of optimism and skepticism regarding the improvement in the livelihood of the urban poor affected by this developmental program. This interdisciplinary lens contributes to understanding the limits and potentials of collective action to address, whether through political and/or legal mobilization, urban inequalities and social vulnerability to environmental and climate change.

THE MEDIATION OF INFORMATION AND COMMUNICATION TECHNOLOGIES IN ADVOCACY

This article aims to study mediation and its various approaches and forms of action, to identify its applicability in the professional legal arena. It has been with the assumption the existence of an apparent conflict that permeates this profession whose human actions already are established, but that have been impacted by the actions not human (technology) based on the economics of information and knowledge. It is questionable C atom to Information mediation can act in the transformations suffered by law in face of the changes that the Information and Communication Technologies-ICT have caused in society. We opted for research of an applied nature, contemplating intervention in social reality, with a qualitative approach, with an exploratory objective, whose method is the inductive one, as the general conclusion is based on a set of particular observations from the literature. As a result, important theoretical elements were identified for the debate on mediation and its ability to lead in the transformation processes of advocacy.

Preschool children’s knowledge of correct names of genital body parts in Gorgan, Iran

ABSTRACT This study sought to identify Iranian preschool children’s (N = 318) knowledge of genital and non-genital body parts. Assessment consisted of children naming selected external body parts in drawings of same-sex counterparts. Results indicated that almost all children knew the correct terms for their non-genital body parts, but few knew the correct terminology for their genitals. Many used slang terms and some appeared embarrassed or reluctant to reply (girls were more likely than boys not to respond). No statistically significant difference between the sex of children in knowledge of correct names of all genitals emerged. Boys knew the correct name of their genitalia (penis) significantly more than girls. Results indicated children are learning the names of their body parts but not their genitals, perhaps indicative of a lack of sexual health education that may be representative of the conservative culture in Iran. It is critical for young children to learn about their genitals as this knowledge provides the foundation for subsequent sex education and facilitates discussion about bodily safety to prevent sexual abuse. When children learn these names, it can facilitate disclosure of abuse and can assist those working with young children in medical settings, child protection and legal arenas.

Ischemic hypoxic encephalopathy: The role of MRI of neonatal injury and medico-legal implication

Hypoxic ischemic encephalopathy is one of the major causes of neonatal death and neurological disability in the child, and represents the most common birth injury claim. Intrapartum asphyxia often leads to several long-term sequalae, such as cerebral palsy and/or developmental delay, epilepsy. Through the neuroimaging it’s possible to identify and define the different lesioned pictures and provide useful elements to establish the moment in which the damage occurred; indeed, timing of injury is a key element in the legal arena. Magnetic resonance imaging (MRI) is emerging as one of the most important tools in identifying the etiologic of neonatal encephalopathy as well as in predicting long-term outcomes.The aim of this study is to evaluate all MRI tests performed in a group of infants and young patients with possible neonatal encephalopathy, in order to determine the role of MRI in perinatal hypoxic-ischemic damage and the specific patterns that can point towards a diagnosis of the time of the damage’s onset. Another goal is to assess the role of MRI in cases subject to legal-medical ligation. Since the advent of hypothermic neuroprotection, new malpractice allegations have arisen, including the failure to initiate cooling in a timely manner. In all cases, documentation of the status of the baby at birth, including a thorough neurologic exam, can be extremely helpful to the later defence of a malpractice claim, which might occur years later.

Knowledge about eyewitness testimony: a survey of Indonesian police officers and psychologists

ABSTRACT Faulty eyewitness testimony can be a notorious source of mistakes in the legal system potentially leading to wrongful convictions and miscarriages of justice. The current study examined the knowledge of a sample of police officers (n = 270) and psychologists (n = 63) in Indonesia regarding factors known to influence the validity of eyewitness testimony given by adults and children. Previous studies have documented that police and psychologists in Western countries have less-than-optimal knowledge about the psychology of eyewitness testimony. Similarly, our non-Western sample also demonstrated a lack of knowledge that may be damaging in the legal context such as the belief that recall of minor details indicates accuracy of memory. For both adult and child eyewitnesses, the psychologists performed significantly better than the police but at the item level these differences were small in size. Intriguingly, we also found that psychologists were more likely than the police officers to endorse the item about repression of memories. The findings show the need for teaching on the psychology of eyewitness testimony for professional groups involved in the legal arena.

A sobering examination of how the COVID-19 pandemic exacerbates the disparities of vulnerable populations

PurposeIntersectionality theory is a social justice theory customarily employed to address inequities which arise in the academic or legal arenas as it relates to race and gender. The application of intersectionality theory extends beyond the convergence of multiple social identities. It provides an invaluable framework to examine the convergence of social identities, the social determinants of health and a global pandemic in communities of historically marginalized and underrepresented persons. The purpose of this paper is to examine how the coronavirus pandemic has exacerbated the disparities experienced by African American and Latinx persons using the principles of intersectionality theory as the schema.Design/methodology/approachA literature review was performed on the scholarly articles examining the disproportionate incidence and mortality rates of African Americans and Latinx persons in America.FindingsThe current literature confirms that the disparities which existed prior to the onset of the coronavirus pandemic have been magnified by systemic oppression and racism of historically marginalized and underrepresented persons in America. The coronavirus pandemic has spotlighted the disparities in sustainable employment and access to health care for African American and Latinx persons.Originality/valueEmploying a social justice theoretical framework of intersectionality provides an opportunity to examine the lived experiences of African American and Latinx persons without race/ethnicity being the primary focal point. Future research will illustrate the urgent need for public health policy reform to eradicate the disparities experienced by African American and Latinx populations.

The why behind the high: determinants of neurocognition during acute cannabis exposure.

Acute cannabis intoxication may induce neurocognitive impairment and is a possible cause of human error, injury and psychological distress. One of the major concerns raised about increasing cannabis legalization and the therapeutic use of cannabis is that it will increase cannabis-related harm. However, the impairing effect of cannabis during intoxication varies among individuals and may not occur in all users. There is evidence that the neurocognitive response to acute cannabis exposure is driven by changes in the activity of the mesocorticolimbic and salience networks, can be exacerbated or mitigated by biological and pharmacological factors, varies with product formulations and frequency of use and can differ between recreational and therapeutic use. It is argued that these determinants of the cannabis-induced neurocognitive state should be taken into account when defining and evaluating levels of cannabis impairment in the legal arena, when prescribing cannabis in therapeutic settings and when informing society about the safe and responsible use of cannabis.

Glorious Verdicts with the Fundamental Flaws: between Decriminalisation and Recognition of the Homosexuality in Light of the Desiderata of the Human Body

The laws against the homosexual people ‘were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today’. ---Theresa May, Former UK Prime Minister Are we really sorry and acting accordingly? Is the law, legal discourse, judges, and the legal arena as a whole really sorry for what the law did and, has been doing, against the homosexual people? Masterpiece, Lee, Lawrence, Navtej and other cases tell us a different story. The glorious judgements have fundamental flaws in consequence of which right of the homosexual people has been interpreted as kindness and sympathy of the heterosexual majority. The glorious judgements have failed to understand the dynamics of the relationship and, hence, failed to show due regard to the homosexual people. Consequently, millions of homosexual people are, still, being discriminated, humiliated and stigmatised around the world. Still, they are suffering in every sphere of their lives and their continuous struggle for their rights is likely to be continued in the years to come. The article wants to point out that the reason behind the failure of the glorious judgements is that the judgments underestimate or overlook the primary and independent justification ie the inevitable need of the body. Instead, the judgements are founded on the personal choice-based secondary justifications which are self-contradictory, self- limiting, self-defeating, confusing and dependent. Consequently, the fate of the homosexual people is swaying on the fulcrum of principles, provisos, and probabilities. The article makes an attempt to challenge the lines of arguments the judgments are based on showing the flaws and the problems, if not dangers, of following these lines of arguments. To deal with this issue effectively, practically, and meaningfully, the article wants to present the primary justification based on the inevitable needs of the human body and the suitable approach focusing the needs of the body. Finally, the article tries to assess the prospects of the primary justification and the approach.

The Opioid Documents: A Report on the Politics of the Public Record

Lawyers in the ongoing opioid litigation have obtained millions of documents from the drug manufacturers, distributors, and pharmacies blamed for the ravages of the opioid crisis. What will happen to these documents if the suits are settled? Will they form a public archive of one of the worst man-made public health disasters in memory? Or will they remain locked away, perhaps permanently? In search for answers, this piece traces a longer history of the role of the courts in shaping the public record on drugs. It discusses what the recent scholarship on pharmaceuticals and pharmaceutical knowledge owes to past litigation against the drug industry, but also highlights some of the forces that have eroded the public record in both the scientific and legal arenas over the last few decades. These forces, I argue, have converged in the case of opioids, raising urgent questions about the implications of litigating public health issues in secret.

What do people really think of when they claim to believe in repressed memory? Methodological middle ground and applied issues

ABSTRACT What do people really think of when they say they believe in repressed traumatic memory? In two studies (N Study 1 = 3158; N Study 2 = 305) using an integrative method taking into account recent methodological discussions, we found that, in total, 2458 participants (71% of the two combined samples) reported that they believed in repressed memory. In Study 1, based on separate questions on the whole group, we found 71% of agreement with the concept of repression, 74% with the concept of unconscious repression, and 54% with the concept of deliberate memory suppression. Participants with no memory of childhood abuse endorsed unconscious and deliberate mechanisms less than those with such memories. In Study 2, the order in which the items were presented was not associated with the beliefs in the different statements. Overall, our results show that people see repression as an unconscious mechanism. We suggest the use of within-subject designs and/or follow-up questions to determine how people understand the concept of repression. Such adherence to this controversial concept can have adverse implications in the clinical and legal arenas.

Die Entwicklung der Kompetenzverteilung 1920 bis 1929 in Gesetzgebung und Wissenschaft

Key aspects of the Austrian system of federalism were not yet present in the Austrian Constitution of 1920 (the BVG). Rather they were forged by the profound challenges of the First Republic (fiscal, ideological and social) bbetween 1920 and 1929 and the resulting compromises that define Austrian federalism to this day. The legal distribution of competences between the Bund and the Länder in conjunction with a new model of judicial review allowed for conflicts to shift from the political to the legal arena, realizing a key aspect of Kelsenian legal thought. The dire state of public finances led to repeated constitutional compromises between the two major political parties, whose interests soon were at odds with their doctrinal stance on federalism: The centralist Social Democrats sought to safeguard the status of “Red” Vienna as an autonomous Land, while the federalist Christian Social Party found itself in control of the federal government. A constitutional reform in 1922 aimed at stabilizing the fiscal constitution. It would, however, be left to the major constitutional revision of 1925 to resolve most of questions on the future structure of federalism left open in 1920. 1929 would see one final major compromise before Austria’s descent into authoritarianism and ultimately totalitarianism. While these reforms and their foundations and reflections in legal scholarship were unable to save the First Republic, they created a stable framework for democratic federalism’s rebirth after 1945 and today’s multi‐level legal governance in the European legal area.

LEGAL GUARANTEES OF HUMAN AND CIVIL RIGHTS IN UKRAINE

Purpose: is to clarify the concept, essence, legal guarantees of human and civil rights and freedoms, taking into account modern legal approaches. Methods: comparison, analysis, induction, deduction, and others that served as a tool for material selection and were a necessary condition for achieving this goal. Results: the article considers legal guarantees of human and civil rights and freedoms in Ukraine. The practical and theoretical functioning of the main responsibilities of the state to guarantee human and civil rights is substantiated, as well as the world experience of protection of human and civil rights and freedoms in the international arena is summarized. Discussion: human and civil rights and freedoms are one of the most important social values, the main object of most constitutional and legal relations. The effectiveness of their implementation, use and compliance depend on the level of their protection and security. In view of this, a valuable part of the constitutional - legal status of man and citizen are the guarantees of these rights and freedoms. The article considers the main legal guarantees of human and civil rights in Ukraine and their legal basis. In addition, the system of international legal guarantees and the main ways to protect their rights in the European Court of Human Rights are analyzed. Important principles of a democratic state governed by the rule of law are recognized as constitutionally enshrined human rights and freedoms, as well as the means provided by law for their protection. The main feature of legal guarantees is that they are reflected in the current legislation in the form of special tools and methods to ensure the rights and responsibilities of all citizens of the country. The purpose of guarantees is that they are designed to provide a more favorable environment in the atmosphere in which the constitutions and laws enshrine the legal status of the individual and, especially, his rights and freedoms, in their implementation, would become the de facto position of each individual and citizen. In the international legal arena, it is the guarantees of human and civil rights and freedoms that play the role of real opportunities for implementation and protection in this area. In view of this, the urgent task is to establish the essence of guarantees of human and civil rights and freedoms, determine the list of rights to be guaranteed by constitutional means, and approve the limits of these guarantees provided in the Basic Law of Ukraine.

An Orphan Needing a Champion–Barriers to Evaluations of Decision-Making Capacity

Impaired decision making capacity is common in medical and community settings, often coexistent with functional impairment and dementia. Though the legal system determines competence, deciding if guardianship is appropriate often relies on a medical assessment of decision making capacity. Physicians conduct cognitive evaluations but are often unaware of a person’s functional impairments and are unfamiliar with their role in pursuing guardianship. Despite the individual roles of the legal system, medical system, and community agencies (e.g. Adult Protective Services (APS)) in such cases, no agency claims responsibility for ensuring this process’s fidelity. As numbers of older citizens in the US increase along with associated increasing numbers of cases involving impaired decision making capacity, ensuring this processes’ fidelity is essential. We sought to identify the barriers (recognized by each of these parties) in determining decision making capacity of persons for whom guardianship is being considered. Surveys were conducted with professionals in the legal, medical, and APS arenas, to identify barriers to obtaining capacity determinations. Common themes identified amongst these entities included needing to include functional status in this evaluation, and the need for clear communication between the legal system, medical system, and APS. Unique concerns identified in the survey included APS caseworkers challenges in finding physicians willing to complete capacity evaluations, judges’ concerns about evaluations’ failure to address safety issues and need for immediate action , and physician’s concerns about liability and compromising the physician-patient relationship. Continued collaboration between these systems could overcome these barriers.