Legal Arena Research Articles

“One Hour He Is a Christian and the Next He Is a Muslim!” A Family Dispute from the Cairo Geniza

ABSTRACT This study publishes a newly identified letter to Moses Maimonides reconstructed from three Geniza fragments. The letter describes an inheritance dispute over real estate in the Egyptian delta town of al-Maḥalla. Having a letter written by a litigant provides information on what took place outside of court, information that is often missing from legal records. This allows us to explore the dynamics of a dispute in which one side makes a legal move, and the other counters with a move outside of court, and vice versa. These manoeuvrings included action in Jewish and Muslim courts, appeal to a jurisconsult, social pressure and performative disregard to the boundaries of the religious communities. As a result, we can conceive of the legal arena not only as encompassing different legal institutions but also as a social space constituted by the ways litigants experienced and interacted with legal institutions.

Teacher Unions, Charter Schools, and the Public/Private Distinction in Education Law and Policy

Background Over the past decade, courts and administrative agencies increasingly have considered cases that involve clashes between charter school proponents and teacher unions. While these cases have focused on a range of education policy issues, some cases have focused on arguably the most important legal and policy distinction applicable to charter schools— whether a charter school should be considered public or private. Purpose This study examines the intersection of the public/private distinction in U.S. law and policy, and the shifting political positions of teacher unions and charter school proponents, in courts and agencies. We examine the history of the public/private distinction in U.S. law and policy and specifically in education, in addition to conducting an in-depth analysis of three recent decisions involving charter schools and teacher unions in which courts and agencies determined whether charter schools were public or private organizations. Research Design This article is a legal analysis and historical case study. Findings Three recent and high-profile education cases in agencies and courts reflect the continuing breakdown of the public/private distinction in law and policy. Courts and agencies have hinged their decisions about the applicability of federal and state collective bargaining laws on this distinction and have grounded decisions about the basic constitutionality of state charter school laws in this distinction as well. However, there is little consistency in how the public/ private distinction has been applied in legal clashes between teacher unions and charter schools. Conclusion Our analysis underscores the limitations of the current debate over the public/ private nature of charter schools and teacher unions, particularly in the institutional settings of courts and agencies, because this debate is largely untethered from issues of teaching and learning. However, our analysis also suggests that the public or private nature of charter schools still appears “up for grabs” in the legal arena. As such, courts and agencies might offer reformers a useful venue compared to the legislative arena for influencing how the public/private distinction applies to charter schools.

Pathway to Electroconvulsive Treatment for Minors.

The decision-making process of prescribing electroconvulsive treatment (ECT) to minors often extends outside of medicine. The legal arena is commonly involved in many jurisdictions, and some states have legislation governing the administration of this treatment in addition to hospital policies and regulations. Treatment failures, additional opinions, explicit consent, and legal tribunals are sometimes needed to deliver ECT to a minor in need. This article describes a process to which a provider can refer in navigating this confusing, and sometimes alien, pathway to provide ECT to his or her patient. Individual state statutes pertaining to ECT are provided.

Diagnostic Characteristics of Human Bite Marks: A Review of Solved Cases

Despite their non-standardized documentation and interpretation, human bite marks are very useful in the legal arena. A literture review of case histories was undertaken to search for some basic dental traits that characterize bite marks successfully used to identify suspects in forensic cases. Information for eighteen cases indicated that the two dental traits that occurred most frequently, diastema and malposition of teeth, were usually sufficient to identify a suspect. The relative simplicity of these findings suggests questioning the necessity and cost-effectiveness of lengthy and complex analyses in many forensic cases.

Fluid Histories: Swamps, Law and the Company-State in Colonial Bengal

AbstractThe movement of the Hughli River in 1804-5 resulted in the deposition of alluvion along Calcutta’s river banks which unfolded as an ownership crisis for the East India Company. The Company responded by developing new legal categories and administrative language to manage these newly formed lands and thereby fashioning itself as a public agent of Calcutta’s land and landed property. Focusing on specific legal aspects of colonial hydrology that arose in the making of property in these amphibious spaces, the article argues that the soaking ecology of Bengal became a site for productive law-making by creating open-ended possibilities for taking land. It demonstrates how the Company used this new land formation to gradually institute a legal architecture regulating alluvion and dereliction and subsequently subjecting these soaking ecologies to an intricate documentary regime with the aim of disciplining the existing landed property relations in Calcutta. Documenting the haphazard extension and enactment of these new legal doctrines in a mobile landscape illuminates a particular history of the colonial regime of property and the Company-State’s early articulations of a particular type of quasi-eminent domain as a manner of taking land. Pushing a new direction in legal geography, the piece shows how the legal arena became a productive site for geographical knowledge production and legal experimentation in the colony.

No Way Home for the Chagossians: Law and Power Politics

If home is where the heart is, then home for the Chagossian people is the Chagos archipelago. The story of the Chagos people is not very well known, but it is a story of injustice and of a legal and political battle to bring an end to this injustice. Evicted from their homes following a decision by the British and American Governments to construct an Anglo-American military base on one of the archipelago’s islands, Diego Garcia, the Chagossians have fought in political and legal arenas for the right to return home for nearly 50 years. The basis for their demand to return home is well-founded under national and international legal principles. However, despite political and legal gains made throughout the years, the right to return home, remains elusive.

Legal Lacunae & Governance Solutions Related to Human Well-Being

Failures of public sector institutions to promote human well-being are an opportunity for visionary leadership in the private sector. Left unaddressed, the absence of public sector leadership to address growing crises is a strategic threat to firms. An increasing number of stakeholder concerns and business externalities involve problems that exist in legal limbo or regulatory vacuums. It is therefore imperative for business school faculty to develop and advocate approaches to corporate governance that recognize firms’ interests in societal and ecological well-being and sustainability and promote a proactive approach to law and private ordering. A conversation with attendees will be moderated with the goal of stimulating awareness and actionable “take-away” ideas that involve (1) law and (2) research, teaching, and practice concerning corporate governance related to human well-being. The symposium will most obviously address the domain of Social Issues in Management (SIM). However, because human well- being is based on ecological life support systems, it also will address the domain of Organizations and Natural Environment (ONE). Finally, the symposium will address values (the domain of MSR) and strategy (the domain of STR). Building on the success of the 2017 All Academy themed symposium on law–and based on a consensus of attendees–we hope to regularly propose similar law-related symposia, named in memory of Thomas Dunfee of The Wharton School. Tom was an engaged member of both the Academy of Management and the Academy of Legal Studies in Business, respected teacher, and an impactful interdisciplinary scholar in both the business and legal arenas specializing in business ethics and social responsibility.

Human duties and the limits of human rights discourse

Human duties and the limits of human rights discourse, by Eric R. Boot, highlights that human duties may have been overlooked in favour of human rights. Boot tries to correct this imbalance and advocates for a broadened understanding of morality in the contemporary global era. The book argues that many of the current problems in international human rights law and politics—like the proliferation of questionable rights and the growth of indifference and political apathy—are rooted in the imbalance between rights and duties. A duties-based approach provides a way to remedy extreme individualism and the reduction of rights to interests. Contrary to what some might think, the international legal arena is not void of duties. Provisions on human duties exist in international law, spearheaded by the American Declaration of Human Rights and Duties of Man and the Universal Declaration of Human Rights, both from 1948. In combination with other, more specific, declarations of human duties from the last two decades, these normative instruments stress the importance of individual duties for achieving a just global order. Despite acknowledging several duties—to obey the law, to work, to pay taxes, to engage in civic participation and to perform a duty willingly—the non-binding status and the lack of specification on the content of duties has led to the misperception that individual duties are less important and merely optional.

OIL & GAS INDUSTRY IN BRAZIL: A BRIEF HISTORY AND LEGAL FRAMEWORK

The recently announced discovery of potential large-scale reserves in the Brazilian so called pre-salt layer has resulted in a new legal framework for the country. In this new architecture, old and new regulation share the legal arena. Exploring this context, this paper provides an overview of the emergence and evolution of the oil and gas market in Brazil, and discusses the new legal configuration where the prevailing Concession System co-exists with the Production Sharing System and the Onerous Assignment. The conclusion pinpoints the challenges that the country faces in dealing with two energy sources –oil and gas— that will play an increasing role in Brazil’s future. It also indicates that the introduction of competition also has brought new features and improvements to oil and gas industry in Brazil. Structuring a robust legal framework that will foster the necessary investments is not only a challenge for the Brazilian economy, but also one that has to be tackled by many emergent economies with newly hydrocarbon discoveries.

OIL & GAS INDUSTRY IN BRAZIL: A BRIEF HISTORY AND LEGAL FRAMEWORK

The recently announced discovery of potential large-scale reserves in the Brazilian so called pre-salt layer has resulted in a new legal framework for the country. In this new architecture, old and new regulation share the legal arena. Exploring this context, this paper provides an overview of the emergence and evolution of the oil and gas market in Brazil, and discusses the new legal configuration where the prevailing Concession System co-exists with the Production Sharing System and the Onerous Assignment. The conclusion pinpoints the challenges that the country faces in dealing with two energy sources –oil and gas— that will play an increasing role in Brazil’s future. It also indicates that the introduction of competition also has brought new features and improvements to oil and gas industry in Brazil. Structuring a robust legal framework that will foster the necessary investments is not only a challenge for the Brazilian economy, but also one that has to be tackled by many emergent economies with newly hydrocarbon discoveries.

OIL & GAS INDUSTRY IN BRAZIL: A BRIEF HISTORY AND LEGAL FRAMEWORK

The recently announced discovery of potential large-scale reserves in the Brazilian so called pre-salt layer has resulted in a new legal framework for the country. In this new architecture, old and new regulation share the legal arena. Exploring this context, this paper provides an overview of the emergence and evolution of the oil and gas market in Brazil, and discusses the new legal configuration where the prevailing Concession System co-exists with the Production Sharing System and the Onerous Assignment. The conclusion pinpoints the challenges that the country faces in dealing with two energy sources –oil and gas— that will play an increasing role in Brazil’s future. It also indicates that the introduction of competition also has brought new features and improvements to oil and gas industry in Brazil. Structuring a robust legal framework that will foster the necessary investments is not only a challenge for the Brazilian economy, but also one that has to be tackled by many emergent economies with newly hydrocarbon discoveries.

Dynamic Muslim Legal Pluralism in England, Turkey and Pakistan

The present thesis seeks to test if, and to what extent, claims of the modern nation-state laws to exclusive dominance over other spheres are tenable and re-assesses the operation of law in society. The thesis exemplifies the living law theory by putting the spotlight on Muslim laws in England, Turkey and Pakistan and substantiates that the metanarrative discourse of modern legality is challenged by `local' cultures and their `unofficial' obligation systems. In chapter 2, a model of operation of law in society is formulated. After providing a detailed account of theoretical discussions regarding legal pluralism, chapter 2 suggests that regardless of state recognition, several laws and normative orders interact, leading to continuous reconstruction of super- hybrid laws. In chapters 3,4 and 5, theoretical discussion and hypotheses formulated in the previous chapter are applied to the socio-legal sphere. The main areas of concern are Muslim marriage and divorce and, in each chapter, a different country and legal system are analysed. In each case, it is found that there are limits to state law, that people maintain their own self-perceptions of legal affairs and that unofficial laws co-exist with official ones. Muslims redefine and reconstruct their laws unofficially even within secular frameworks and undermine and obstruct the claim of official law to have a monopoly over the socio-legal sphere as the governing law. Skilful Muslim legal navigators, as post-modern entities of the socio- legal arena, combine rules of different conflicting normative orders and reconstruct their own super-hybrid laws as law-inventing citizens. The study suggests that states should move towards developing a `supra- modern' response. This is neither a full defence of modernity, nor a complete acceptance of postmodernity, but this thesis argues for an integrated theory which envisages that various types of laws interact, that the state law is also subject to legal postulates, and that state law is in charge of this process as a referee. Supramodernity does not lead to anarchy in contrast to post-modern formulations yet recognises diversity as part of the mosaic.

Cost considerations for systemic therapy for patients with advanced genitourinary malignancies.

The rising cost of health care in the United States has been the focus of intense debate within the medical, legal, and legislative arenas, with the cost of cancer care representing an important component. Cost effectiveness is not always easy to define, and there is no standard metric in assessing this measure related to cancer therapies. Significant controversy surrounds exactly what is the appropriate cost per added year of life. This review examines cost, effectiveness, and comparative cost effectiveness of novel systemic therapies for patients with urologic malignancies. Cancer 2018;124:2897-905. © 2018 American Cancer Society.

Use of extra-legal sources in amicus curiae briefs submitted in Fisher v. University of Texas at Austin

As the political arena becomes increasingly polarized, the legal arena is playing a more important role in the creation of education policy in the United States. One critical stage in the legal process for such efforts is at briefing where “amici curiae,” or friends-of-the-court, may introduce additional arguments for the court to consider through the filing of amicus curiae briefs. To explore the use of extra-legal sources by amici, we focus on the 2013 U.S. Supreme Court case Fisher v. University of Texas at Austin and ask the questions: 1) What are the types, and relative use by amici, of extra-legal sources cited in the briefs submitted in Fisher I? and 2) What is the relative use of extra-legal sources cited in amicus briefs by supporting party and by category of amici? Our findings reveal the wide-range of extra-legal sources used in amicus briefs, and that the type of extra-legal sources incorporated may be associated with who the amici are and which party they support. Ultimately, we discuss potential reasons for the differences observed in the use of extra-legal sources and offer recommendations to more effectively engage in the policy briefing process.

Indianness, Revolutionary Music and National Identity: Songs of a Nation

Though Indian courts at present are riddled with issues concerning music on the copyright front, significance of another aspect of music based on its essence is largely lost and unexplored. Though courts refer to popular songs in judgments, they are few and far in between. The understanding is that law today is neither poetic nor musical. Music, however, expresses mankind’s faith, hope and aspiration. The use of popular music by Indian courts to write creatively, though not necessarily improve the judgment is restricted and largely unexplored. This paper proposes to explore the dimensions of labour movement through music and the role of law in the making of India as a nation. The association of political dissent through music and the determination of the nation state to procure a stake in the management of the popular music that is sought to belong to itself will be the key theme for understanding the songs that make a nation. Beginning from the struggle for India’s independence to modern day labour movements using music for critique and promoting the vernacular culture are the essence of the paper. Historically, the role of music is central for workers in any labour movement worldwide and is now explored in the Indian context, beginning from the early years of struggle in the nineteenth century to the year of independence in 1947. Recent movements including the protests against profiteering and displacement of persons will also form part of the discussions in this paper. The roles of music and the law have periodically been addressed in the scholarly legal arena but the topic has seldom been explored in-depth from a labour perspective, as paper ventures to do.

Legal Protection of Sexual Minorities in International Criminal Law

For a long time, the issues of sexual orientation and gender identity have been restrained from entering the legal arena as being regarded as too radical. In today’s society, these issues warrant consideration in the context of international criminal law. Critically reflecting on the way of placing these grounds within the international criminal law framework, this paper tries to unpack the sheer possibility of addressing them within the core international crimes. Correctly defining terms such as “sexual orientation” and “gender” is not only germane, but also necessary for international criminal law to tackle them accordingly. By doing so, the power of legal argumentation in international criminal law for protecting sexual minorities is strengthened, but its boundaries and vulnerabilities are also exposed. This paper proposes that the described massive violation of the most fundamental human rights should be legally qualified as persecution. For protecting sexual minorities on an international criminal law scale, it is argued that we are not really “there” yet, but we might just be on the right track.

Examining Decision-Making: Understanding Civil and Criminal Competencies

Psychiatrists and mental health professionals in the role of forensic examiners require certain knowledge and skills to perform competency examinations, which are the most common type of forensic mental health examinations. Competency refers to necessary basic abilities to make certain decisions, such as medical treatment decisions in the civil legal arena. In criminal proceedings, the most common evaluation is the competency to stand trial examination. This article discusses competencies in general, with a focus on medical decision-making capacity and competency to stand trial. [ Psychiatr Ann. 2018;48(2):79–85.]

Metodologías de sistematización de información sobre violaciones a los derechos humanos en Argentina. El “armado del caso” ante la Comisión Interamericana de Derechos Humanos (1979)

Este trabajo presenta los hallazgos de una investigación que analizó la sistematización de información como estrategia de las organizaciones de derechos humanos en Argentina, en el marco de su lucha en pos de la verdad y la justicia por los crímenes de la última dictadura militar (1976-1983). La investigación sostiene que la sistematización de información ha sido una de las estrategias menos analizadas y, en general, es caracterizada como “artesanal” sin tomar en cuenta sus métodos, reglas estructurantes y lógicas.
 El análisis teórico se centró en el ámbito particular en el que se desarrolló la lucha de estas organizaciones, la “arena legal” o el “campo jurídico”, y mostró que han sido sus reglas las que estructuraron las estrategias de sistematización. Esto posibilitó conceptualizar el “hecho represivo” y darle la forma específica que requería para poderlo convertir en un caso judicial.
 La investigación presenta un abordaje cualitativo a partir del análisis de material de archivo y de entrevistas en profundidad a informantes clave. En este artículo se aborda una estrategia particular: la producción de patrones represivos a partir de denuncias de desaparición en el marco de la visita a Argentina de la Comisión Interamericana de Derechos Humanos en 1979.

Two Mistakes about the Concept of Punishment

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.

State Formation from Below: Social Movements of Dam Evictees and Legal Transformation of the Local State in India, 1960–76

ABSTRACTThis paper demonstrates a case of state formation in South Asia that emerged from below. In India, the state of Maharashtra has had a history of social movements by people evicted by dam construction dating back to the 1920s. The cumulative effect of these movements led Maharashtra to enact a law in 1976 to empower dam evictees, thus establishing the first rehabilitation law in India. These movements democratised the state and transformed its legal arena through a rights-based, claim-making approach. I argue that in post-colonial India, the state and society co-evolved through dialectics that were instrumental in transforming both, and that the making of the Maharashtra Resettlement of Project Displaced Persons Act, 1976, was the precursor to all acts subsequently passed in India in response to a rights-based, claim-making approach.