Legal Arena Research Articles

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.

Indicadores PER y sostenibilidad en la normativa sobre bosques cultivados en Argentina

This paper is focused on the regulation and institutional development contrasts of planted forests at Northeast, Northwest and New Cuyo regions in Argentina, taking into consideration «traditional» and «extended» environmental sustainability principle parameters. It is important to add that this principle was highly exceeded by other environmental management paradigms, but they are not suitable to be applied to implanted forests regulations in Argentina. Also, it refers to the contribution provided by legal international instruments and regional regulations. One of the most original approaches of this research is that PER indicators (Pressure, Condition and Response) were applied and adjusted to the legal arena. Finally we can state that planted forests regulations focuses on a limited horizon of production maximization, highlighting economic and forests commercial activties.

When Clinicians Are Summoned to Testify in Court: Orientation to the Process and Suggestions on Preparation.

There are occasions when clinicians are summoned to court to testify. The reasons for this are wide-ranging. It can be about the provision of patient care that is relevant to a criminal or civil legal matter, or to a malpractice complaint, concerns of safety for a child, child custody issue, allegation of sexual or physical abuse, or being called to testify as an expert witness in your field of expertise. The legal system is adversarial and litigation is the process used to determine the considered truth of the matter at hand. The adversarial nature of the courtroom stands in stark contrast to the collaborative mindset and approach used in health care. Most clinicians will never have to testify in a court setting. However, when a clinician does receive a subpoena, feelings of dread, anxiety, and panic can ensue. This can be especially harrowing if the subpoena is about a malpractice grievance. Understanding the legal arena, court proceedings and how to properly prepare, can assist the clinician to navigate the process and stay calm under pressure if subpoenaed to testify. This article will help clinicians know what to do and how to prepare in the event they are ordered to testify in court. An orientation to the courtroom, basic legal concepts, and definitions will be discussed. This article is structured in a question and answer format based on typical questions clinicians ask when anticipating going to court.

The Communist Party of China’s Approach to Human Rights and the Death Penalty

Under the Constitution of China, the Communist Party (cpc) does not merely play a leadership role in the political field, but also in the legal arena. Legislation must reflect the Party’s outlook and achieve its policies, including any legal provisions governing particular systems, such as arrangements for the death penalty. After introducing the relationship between the cpc and legislation, this article will discuss the shift in the cpc’s approach to human rights and changes to the death penalty system in the Maoist, Deng Xiaoping and post-Deng eras. In the Maoist era, the government rejected human rights, but its policy on execution – at least on paper – was cautious and even stricter than during the other eras; the cpc recognised and accepted human rights in the Deng era, but emphasised national security and stability. As a result, individual human rights were not fully taken into account. Execution was considered an important measure to control crime and the scope of the relevant legislation was expanded. Post-Deng, human rights have developed gradually. Human rights protection has been incorporated into the Constitution and individual human rights have become more valued, but the cpc still focuses on state security, development and stability, and has not valued the right to life to the same extent as the right to subsistence. Although steps to reform the death penalty are being taken, 46 crimes are still punishable by death. The cpc should change its outlook and focus on the right to life, and abolish the death penalty de facto and de jure.

Framing the women’s AFL: contested spaces and emerging narratives of hope and opportunity for women in sport

This article explores historical, contemporary and emerging sites of contestation within sports, with a particular focus on women’s Australian Rules football in Australia. Sport played out on the field, in the media, popular culture, governance and legal arenas are positioned in this article as contested public spaces. The increasing presence of women in these spaces is seen as a shift towards a more socially just sporting space. With an emphasis on the contemporary sporting landscape and the historical commencement of the national women’s Australian Football League Women (AFLW) competition in February 2017, the evolution of this sport as a contested space can be understood as it relates to narratives of hope and opportunity for women. With overwhelming public feeling that the first AFLW season was a success, it is time to pause and consider what this development means for elite women’s sport, and women in contemporary Australian society more broadly.

The Hong Kong Occupy Injunction Cases

Abstract In September 2014, the deadlock over election reforms in Hong Kong sparked off a mass civil disobedience occupy movement. This political dispute eventually reached the legal arena after the filing of injunction applications before the courts of Hong Kong to clear the protest sites. This article aims to discuss the courts’ approach towards the adjudication of these injunction cases. In particular, this article will review: (a) the appropriateness of the scope of the interim injunctions granted to protect the plaintiff’s personal rights under the tort of public nuisance; (b) the function of the police in implementing the injunction orders; (c) the position the courts should adopt in defending individual rights of the plaintiffs if a similar remedy is already available under the statute; and (d) the way courts should reconcile competing claims and protect both the unidentified protestors’ human rights and the private rights of the plaintiffs. The article maintains that the injunction cases have set rather dangerous precedents regarding the protection of fundamental rights in Hong Kong in cases of public order involving protection of private rights. The same analysis leads to the conclusion that in a democratic society, the courts have a duty to find the balance between the protection of fundamental human rights and private rights under tort of nuisance, while also observing significant procedural rules.

Friends of the Court? Why EU governments file observations before the Court of Justice

AbstractThe preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.

Dropping the ball or holding the line? Challenges to abortion laws in the Nordic countries

This article examines recent developments regarding the legal regulation of abortion in Sweden, Finland and Norway. Ever since abortion laws in the Nordic countries were overhauled in the 1970s, largely in a response to the feminist movement, abortion has been considered to be largely non-politicised. However, recently all three countries have seen abortion re-emerge repeatedly in the political and legal arena. This article examines the various proposals to amend abortion legislation, asking whether they can be explained with reference to recent international developments in anti-abortion politics. The article argues that although the recent Nordic developments have limited immediate consequences for the availability of abortion as a public service, they suggest, perhaps more importantly, that a long-term struggle is emerging over public opinion supporting universal abortion access.

Are these friends also “friends of the court”?: examining minority legal advocacy organization coalitions in amicus brief filings

ABSTRACTIncreased social diversity generally, and in the minority legal advocacy group environment specifically, the significance of Supreme Court decisions, and the ability to analyze inter-minority groups' behavior through amicus filings provide an important, unique venue for examining inter-group coalitional activity. With evidence covering 35 years of amicus brief filings by Black, Latino, and Asian advocacy groups, this article demonstrates that: (1) the minority legal advocacy context changed substantially with the rise of Asian advocacy group participation in amicus filings; (2) the emergence of a third minority advocacy group increases coalitional activity between the other two minority groups, ostensibly by signaling the existence of a “minority interest” independent of issue area and other prominent indicators, (3) there is no evidence of conflict, and (4) several factors identified in other general analyses exerted little to no effects. The article contributes to understanding inter-minority group relations generally, and in the legal arena more specifically.

Testing Equality: Insanity, Treatment Refusal and the CRPD

The Convention on the Rights of Persons with Disabilities is considered to be a radical international treaty that affords persons with disability recognition and protection of equal rights in socio-cultural, political, medical and legal arenas. Drawing from the Convention's core principles of equality and non-discrimination, the High Commissioner for Human Rights and the Convention's Committee have called for a replacement of the insanity defence with a disability-neutral doctrine. The rationale is that retaining this special defence is, in itself, discriminatory, given its function is necessarily based on the presence of mental disability and the assumption that such disabilities impair capacity and reasoning. This article interrogates the rationale behind ‘abolitionist’ views, and asks whether equality necessarily means treating all persons identically regardless of capacity to reason about conduct.

Educating the physical security professional: developing a science-based curriculum

Within the security stratum is the jurisdictional practice of physical security; however, physical security is not currently a recognised professional undertaking. Professional standing is a social recognition, designated by the public and legal arenas. Yet the physical security practitioner is instrumental in addressing security concerns. Therefore, this study extends a recent article by Coole et al. (Secur J 1–29, 2016) to articulate educational learning objectives within a formal knowledge structure. The study applied a cultural domain analysis, using security expert focus groups to develop a physical security knowledge system. Findings indicated that knowledge subjects should be aligned in order to diagnose the security problem, inference an optimal resolution and identify treatment strategies. The study articulated the overarching physical security learning objectives, using a top-down structure and underpinned by subject learning objectives. The adoption of standardised learning objectives, based on clear content requisites, would represent a significant step forward in the professionalisation of the physical security professional.

A Primer on the "Bell Case Synthesis Method" and a Lesson on Adult Child's Play

The ability to successfully discern and communicate the relevant aspects of a judicial opinion is a fundamental skill that legal professionals must have. Despite its importance, many in the legal arena lack the ability to effectively demonstrate this skill. Needless to say, law students suffer from this same shortcoming. After years of reading inadequate briefs submitted by lawyers and reviewing deficient submissions by law students, I developed an original case synthesis method. This method, titled the “Bell Case Synthesis Method,” teaches one how to select supporting cases and how to adequately explain the relevant aspects of selected cases. This original method has been tested for years and has proven to be quite valuable for memo and brief writing, as well as for the higher level thinking that is needed for success in law school and the practice of law. This article will benefit a broad audience, including lawyers, law students, paralegals, law clerks, inmate counsel and legal educators. In addition, it is timely, given the recent emphasis on producing practice-ready law school graduates.

How voice shapes reactions to impartial decision-makers: An experiment on participation procedures

This paper studies how participation in decision procedures affects people’s reactions to the deciding authority. In our economic experiment, having voice, i.e., the opportunity to state one’s opinion prior to a decision, significantly increases subordinates’ subsequent kindness towards the authority. These positive effects occur irrespectively of the decisions’ content. The experimental findings stress the positive effects of voice when subordinates and authorities interact. Our results suggest that in organizations, but also in the legal and political arena, participative decision-making can be used to guide people’s actions after decisions have been made.

Challenges To Reducing Discrimination And Health Inequity Through Existing Civil Rights Laws.

More than fifty years after the passage of the Civil Rights Act of 1964, health care for racial and ethnic minorities remains in many ways separate and unequal in the United States. Moreover, efforts to improve minority health care face challenges that differ from those confronted during de jure segregation. We review these challenges and examine whether stronger enforcement of existing civil rights legislation could help overcome them. We conclude that stronger enforcement of existing laws-for example, through executive orders to strengthen enforcement of the laws and congressional action to allow private individuals to bring lawsuits against providers who might have engaged in discrimination-would improve minority health care, but this approach is limited in what it can achieve. Complementary approaches outside the legal arena, such as quality improvement efforts and direct transfers of money to minority-serving providers-those seeing a disproportionate number of minority patients relative to their share of the population-might prove to be more effective.

Law, citizenship and social solidarity: Israel’s “Loyalty-Citizenship” Laws as a test case

ABSTRACTThe concept of loyalty to the state has been occupying an increasingly central place in political discourse in Israel. The underlying premise of this discourse is that citizens owe a duty of loyalty to their state. Israel’s Arab-Palestinian citizens, it is argued, fail to fulfill such duty. In the legal arena, this discourse has been manifested in a series of bills referred to by the media as the “Loyalty-Citizenship Bills,” justified by their initiators both as measures necessary to protect the state from alleged threats posed by disloyal citizens and as means for strengthening citizens’ loyalty to the state. This article challenges the premise underlying the Loyalty-Citizenship Bills and criticizes the Bills’ content. The article argues that to the extent that citizens can legitimately be expected to be loyal to their state of citizenship, such expectation derives from the existence of social solidarity. While the initiators of the Loyalty-Citizenship Bills fail to demonstrate how the Bills advance any legitimate goal, the Bills are likely to have a negative effect on social solidarity by nurturing a public discourse that alienates Israel’s Arab-Palestinian citizens and undermines their citizenship.

Understanding the Quintessence of Clinical Legal Education: Nepalese Experience

Experiential erudition is the spirit of Clinical Legal Education which provides opportunity to coalesce theory with practice and helps to expand professional skills in law students. Clinical Legal Education is an innovative development in Nepal’s legal education, the subject and arena is new to the legal fraternity of Nepal. The understanding, concept and approach of clinical legal education are not uniform among law schools and legal fraternity. The aspects of clinical legal education are inserted and reflected in the curriculum however approach and understanding remains different. The paper aims to provide uniform understanding of approaches of clinical legal education, principles and prominent activities along with scenario of clinical legal education in Nepal and its blemish.

Psychology and psychiatry in Singapore courts: A baseline survey of the mental health landscape in the legal arena

Despite the increasing prevalence and involvement of mental health professionals in local courts, there has been no systematic study of the role played by these expert witnesses in Singapore courtrooms. An empirical study of all existing recorded cases on Lawnet (Singapore's legal database of all court trial cases) from 1975–2014 involving psychologists and psychiatrists was conducted. Results revealed that, not only were these mental health experts increasingly dotting the landscape of the legal arena, the variety of their contributions has also been gradually growing. Furthermore, there were marked differences across criminal, civil and custody cases with regards to the issues of how these experts were consulted and how their inputs utilized and appreciated by judges. Differences between psychology and psychiatry were also apparent. A future with more assistance rendered by these professions to courts, as well as greater synergy between law and mental health, was predicted for Singapore courts.

In ‘Juridical Limbo’: Urban Governance and Subaltern Legalities among Squatters in Calcutta, India

A ‘squatter’ in the global South is another word for a seemingly incomprehensible heap of legal ambiguities, messy politics and abject poverty. Squatter dwellers are typically immigrants from the countryside, who squat on seized land and are caught in complex mazes of citizenship, labor and property laws. They are suspended in what I call ‘juridical limbo’—a situation in which overlapping legal identities and contradictory laws render individuals or entire communities into a state of semi-legal existence. Many squatters have fallen through the cracks of the legal arena and are vulnerable to being evicted without proper rehabilitation, but some of them have indeed learnt to use the law’s complications to their extralegal advantage. Using the case of two extraordinary land conflicts in India’s most populous city—Calcutta—this paper contrasts the claim-making strategies of two squatter settlements, providing a rich ethnographic account of their differential success in protecting their territory against eviction and of navigating their semi-legal status. Alongside establishing this variation, this paper also interrogates the proximate causes of this variation and puts forth a theoretical framework that focuses on the legal relationship between the state and the urban poor.

A Human Right to Internet Access: A Gewirthian Approach

The paper aims at exploring if we have sound philosophical reason to embrace a human right to Internet access. While attempts to make Internet access a candidate for the standing of human right have become popular in both the political and legal arenas, we still lack serious philosophical reflection on this issue. The paper first evaluates the arguments made by various authors, and then moves to provide its own conclusions. Its logic is that if (i) Internet access is crucial for enabling democracy, and (ii) democracy is a basic human right, then we may have at least prima facie reason to see such a technology as a derived human right whose normativity supervenes on the right to democracy.

“I Know, But I Have No Proof”. Authentic Past and Aesthetic Truth in Post-War Italy

Following the perspective of cultural trauma theorists, this article focuses on the public memory of Italy’s recent past, specifically the period of the so-called strategy of tension, a still very obscure time in the country’s recent history and which includes the terrorist attacks that took place from 1969 to 1993 in several Italian cities. When “State Terror” occurred in Italy, access to legal and political arenas was systematically denied and the cultural trauma process could be performed only in aesthetic arenas. This article focuses on the role played by the cinema and other cultural artefacts in producing an “aesthetic truth” of Italy’s recent past. By analysing the main features of the artistic and cultural representation of this past, the status of this “truth” is questioned and compared to that produced for example in the legal arena. When narrating the past, it is difficult for movies (and the same can be argued for other cultural artefacts) to achieve the quality standards of historical narration. When they narrate the past, they can remain a “second best” option. In the Italian case a very interesting trend can be noted: public knowledge of highly controversial events is often narrated using fiction. “Fiction” (more than a documentary film) seems to create the conditions that make possible the public communication of what all the citizens know but no one has proof to document. On 14 November 1974, Pier Paolo Pasolini, an Italian intellectual, published a long article under the headline “What is this coup d’état? I know” in Corriere della Sera, a leading newspaper in Italy. Probably Pasolini was murdered because of that article: he died on 2 November 1975. In that article he wrote about the strategy of tension in Italy and he said: “I know, but I have no proof”. In Italy, many citizens, many intellectuals, many artists know, but they still have no proof. For this reason they can narrate the recent past of the country only by using fiction and theatrical performance. Will the aesthetisation of the recent past remain the only way to carry out the trauma process in Italian society?