Complex Legal Research Articles

Integration Law – An Independent Legal System

Economic integration has become a general trend in the development of cooperation between states. At the initial stages of integration construction, integration associations are a special kind of international organization. Later, the legal complexes of integration formations stand out and represent separate, independent legal systems (both from international law and from the national (domestic) law of the member states). This article attempts to theoretically generalize, synthesize and develop scientific provisions on integration associations and the legal systems created in them, accumulated in domestic and foreign legal science. The purpose of this study was the formation of a balanced, reasoned position, which fitted modern realities, on the existence of integration law. The methodological basis of the research was formed by a complex of general scientific and special methods for studying legal concepts, institutions and processes in the field of integration law: comparative legal, systemic and structural. Thanks to their application, it becomes possible to identify the general, specific and singular in the activities of integration associations. We managed to substantiate the concept of the formation within the framework of integration associations of our own institutional and legal systems (integration law), which have a close genetic link with international and national law. In our opinion, integration law (or ‘the law of integration formations’) acts as a system that presupposes a single internal structure, hierarchy and mutual consistency of its constituent parts.

Environmental Protection in the Argentinian Supreme Court Case Law

According to Article 41 of the Argentinian Constitution, all inhabitants have a right to environmental protection. Citizens have a right to a healthy and balanced environment, suitable for human development and productive activities to satisfy present needs without compromising those of future generations. The paper aims to analyze the tensions implicit in applying this constitutional norm by the Federal Supreme Court using the methodology of public law and legal theory. Indeed, the constitutional provision is broad, and its interpretation can lead to different solutions in a specific case. There are three main issues of legal interest discussed here. First, there is a delicate balance of protecting the environment against private property and economic activity, which the latter also being assured by the constitution. The point is particularly acute in Argentina, whose economy strongly depends on the primary sector. Second, there are tensions between the political branches (legislative/executive) and the judiciary. Environmental standards established by the judiciary are usually higher than those decided by the legislative branch. However, giving the judges the possibility to determine those standards in the absence of any previous legal norm (or even, sometimes, against that norm) could be a source of legal uncertainty. Finally, due to the federal nature of the Argentinian political system, the distribution of legislative and jurisdictional powers between the federal and local governments is disputed. In this equation, leaning towards the federal government may favor more homogeneity in environmental standards, which would simultaneously reduce local autonomy. This paper shows that the Supreme Court tries to balance different constitutional values in resolving these tensions. The difficulty of finding an adequate constitutional balance is usually added to the legal and factual complexity of environmental issues, and the result is not always completely satisfactory.
 KEYWORDS: Argentina, Environmental Protection, Supreme Court Case Law.

In and out of the cage: informational privacy in Henry James’s In the Cage

Abstract The issue of informational privacy emerged from the modern, technological landscape during the fin de siècle. The novelist Henry James approached this issue in his letters and novella In the Cage (1898), concurrent with lawyers Samuel Warren and Louis Brandeis’s seminal legal discourse of the right to privacy. Despite the time affinity, James had recourse to the power of societal ethos in his works to unravel privacy issues, which diverged from the lawyers’ demand for legal rights. Still, the concurrence and divergence over informational privacy resonate in examining the tripartite relationship among informational privacy, modern technology and humans’ freedom. By analysing the epistemological dimensions of informational privacy and a crucial scene of trial in James’s In the Cage, this article argues that the protagonist’s choice to stay in or out of the informational “cage” invites the reader to reconsider between and beyond the private sphere and the public sphere. Privacy as a moral or legal right is dependent on the dynamics between the desire to know and the intention of intrusion as well as the negotiation between the public and private spheres. Tracing how the privacy issue emerged in the historical context, we hold that James’s text as the interface of law and literature echoes the texture of moral and legal complexity in today’s informational privacy issues.

The ethical and legal considerations of young people and their parents using a hospital patient portal: Hospital Ethics Committee members perspectives

Background In April 2019, our hospital transitioned to an electronic patient record system and patient portal (MyGOSH). MyGOSH enables young people aged 12 years or older and their parents to access results, documentation, appointments, and to communicate with their care team. Aims A focus group was conducted to explore the ethical and legal considerations of young people and their parents using a patient portal from the perspective of hospital Ethics Committee members. Participants and research context Members of the hospital Paediatric Bioethics Centre were recruited ( n = 7). Written informed consent was provided by all participants. Research design The focus group discussion was recorded, transcribed verbatim and analysed using thematic analysis. Ethical considerations Health Research Authority Research Ethics Committee (REC) Approval was granted by London Southeast REC (IRAS Project ID: 248793; REC Reference: 18/LO/1945). Results Four themes, and sub-themes, were identified: (1) granting access – complexities of assessing competence/capacity, exclusion from MyGOSH due to non-disclosure of diagnosis, and truth-telling; (2) inequalities resulting in inequities – complexities of inequity in access; (3) responding to change – providing support and managing expectations; (4) engagement, empowerment and understanding – data safety, empowering young people to take ownership of their health data, a one-size fits all system may not meet the needs of all families, and early engagement with young people/parents. Discussion Giving families portal access can increase engagement, empowering them to be more involved in care, yet poses challenges for all. Complexities exist in the assessment for portal access, and supporting and managing user expectations whilst providing an equitable service. Conclusions Ongoing support is required for all stakeholders following patient portal implementation to navigate the ethical and legal complexities, and to promote equity and portal utility for patient benefit.

Ownership, liability, patentability, and creativity issues in artificial intelligence

ABSTRACT While Artificial Intelligence technologies find increasing use in different industries such as transportation, healthcare and other services, it gives rise to legal complexities in respect of ownership and liability of AI, patentability of AI inventions, and creativity & ownership of AI-generated works attributable to various components of AI. The autonomous decision-making ability of AI challenges the existing IP framework. Since AI machines can “think” and “act” without any human effort, if any damage or harm occurs to the properties, does the current model of tort liability (product liability, negligence, strict liability) adequately address the legal concerns? Robust regulatory bodies and institutional mechanisms are required to develop rigorous safety standards and establish safety certification processes for AI. Even though AI inventions can be patented, many jurisdictions recognize only a “human” as an inventor and not the AI. With the increasing capability of AI to generate works without human intervention, there seems to be a strong case for granting copyright protection to AI-generated works. Exploring a separate legal framework for AI to reduce ambiguity and increase accountability would be in order.

Predicting Brazilian Court Decisions.

Predicting case outcomes is useful for legal professionals to understand case law, file a lawsuit, raise a defense, or lodge appeals, for instance. However, it is very hard to predict legal decisions since this requires extracting valuable information from myriads of cases and other documents. Moreover, legal system complexity along with a huge volume of litigation make this problem even harder. This paper introduces an approach to predicting Brazilian court decisions, including whether they will be unanimous. Our methodology uses various machine learning algorithms, including classifiers and state-of-the-art Deep Learning models. We developed a working prototype whose F1-score performance is ~80.2% by using 4,043 cases from a Brazilian court. To our knowledge, this is the first study to present methods for predicting Brazilian court decision outcomes.

Unbundling institutional determinants of innovation

AbstractWhy are some nations wealthy, while others remain mired in poverty? Prior literature suggests technological innovation and strong institutions are uniquely conducive to long‐term economic growth. Property rights institutions (PRIs) afford protection from expropriation by the government and political elites, while contracting institutions (CIs) allow private parties to conduct commercial transactions. In this study, we systematically examine the relative effects of PRIs and CIs on innovation. Using an instrumental variable (IV) approach and two‐stage least squares regression framework, our results suggest that PRIs have a strong positive effect on innovation, while CIs do not. Constraint on executive, protection from expropriation of the government, and protection of private property are proxies for PRIs, while legal formalism, procedural complexity, and number of procedures are proxies for CIs. We find strong empirical evidence that PRIs have statistically significant effects both on innovation intensity and time lag in innovation adoption, while the impacts of CIs on these measures of innovation are generally insignificant. Our findings are relevant to policymakers today as developing countries look to innovation to reignite their economies and avoid the middle‐income trap.

Mask mandates for children during the COVID-19 pandemic: an international human rights perspective.

Epidemiological and physical safety issues form the core of the debate on whether children should be mandated to wear face masks during the COVID-19 pandemic. Largely absent from this debate are the crucial implications of international human rights law. Although the World Health Organization and the United Nations Children's Fund have different mask-wearing recommendations for children aged 0-5 years, 6-11 years, and 12+ years, the UN Convention on the Rights of the Child applies to children of all ages. Children's human rights under the UN Convention on the Rights of the Child and other treaties require decision makers to tread particularly carefully when deciding whether to mandate mask-wearing for children. Special consideration must be given to the potential for any detrimental impact of mask-wearing on children's physical, psychological and psychosocial health and wellbeing. Other non-pharmaceutical interventions for children, such as physical distancing, good hand hygiene and improved indoor ventilation do not engage the legal complexities of mask-wearing and are a safer policy option for reducing SARS-CoV-2 transmission.

Intellectual Property and International Clean Technology Diffusion: Pathways and Prospects

AbstractInternational clean technology diffusion is essential to mitigate and adapt to climate change, while fast and optimal diffusion can be prevented by the paywall of patents. This article explores the deficiency in clean technology diffusion caused by the legal fragmentation and rule complex of international environmental law and intellectual property law. It systematically examines three pathways to foster international clean technology diffusion through: restriction of intellectual property, including imposing external restraints in environmental law; striking internal balancing in maximizing TRIPS flexibilities; and keeping the status quo. It argues that treaty pathways may not work, and an operable pathway to promote clean technology diffusion is to maximize and consolidate TRIPS flexibilities in national laws. This option challenges the popular proposal of a “Doha-like” declaration on TRIPS and climate change due to the paralyzed multilateral trade mechanism, asymmetrical negotiation power of developing countries, prolonged negotiation process, and categorization problem in treaty negotiations.

C-247/20 VI v The Commissioners for Her Majesty’s Revenue & Customs and the implications of preliminary references during the transitional period: a case study in legal complexity

C-247/20 VI v The Commissioners for Her Majesty’s Revenue & Customs and the implications of preliminary references during the transitional period: a case study in legal complexity

Digital Oceans and Algorithmic Castaways

Abstract As a result of the digital revolution, legal complexities have increased for Internet users. With an opaque and dispersed world network, users are often bound to sovereignties and laws they are unaware of. The author explores how Internet corporations are redefining geopolitics. Through two artworks, this statement reframes the novel Robinson Crusoe within the context of current technologies. The author proposes the castaway as a framework for users’ political position in relation to Internet infrastructure.

Identity and reproductive rights of transgenders: are current legal and ethical frameworks soon to be outdated? Medicolegal implications of potentially life-changing decisions.

The level of recognition that transgender individuals (i.e. those whose gender does not match the sex assigned at birth) enjoy in our societies has certainly made giant strides. Still, there is no denying that the far-reaching ramifications arising from choices about one's gender expression do affect vital aspects of identity in school, workplaces, and the community, and should be clearly defined and addressed by laws and policies. One of the arguments most commonly used by supporters of transgender rights relies on the concept of inalienable human rights, including the rights to live safely, freely, and without fearing discrimination. The authors have set out to succinctly outline and elaborate on the dynamics that have been shaping the legal reco-gnition of transgender individuals in light of the unique legal, social and ethical complexities that such an evolution entails. Moreover, as assisted reproduction technologies make considerable progress and innovations open up new horizons for fertility preservation and restoration, it is worth exploring how such advance can play a role in upholding the reproductive rights of transgender patients who wish to achieve parenthood, and how counseling ought to be implemented taking into account the psychological traits of transgender patients and the implications of every choice they make.

The Legal Complexities of Processing and Protecting Personal Data in the Electricity Sector

The use of smart meters enables the emergence of innovations in the electricity sector, such as smart grids, prosumers and Peer-to-Peer trading, which can play an important role in realizing the energy transition. These developments rely on the processing of personal data, triggering the application of data protection legislation in addition to the legislation organizing the electricity markets. This article examines the interaction between the General Data Protection Regulation (GDPR) and the Directive (EU) 2019/944 on common rules for the internal market for electricity in the European Union, following the method of doctrinal legal research. Concretely, this article investigates what kinds of tensions may arise from the coexistence of these two legal regimes and whether there are mechanisms in place to prevent or mitigate such tensions. Three main tensions are identified. The first tension lies in the fact that some of the innovations facilitated by smart metering in the energy sector rely on technologies that might not be entirely compatible with the GDPR. A second tension follows from the existence of separate but interrelated regimes for access to data of the consumer/data subject in the two legal instruments here analysed. The third tension relates to a possible overlap of competences between the supervisory authorities of both regimes. This article is a contribution to the still scarce legal scholarship on the interplay between the GDPR the Recast Electricity Directive. The findings of this research are of interest not only for academics but also for practitioners, policymakers and supervisory authorities that have to deal with the issues here identified.

The Applied Data Analytics in Medicine Program: Lessons Learned From Four Years' Experience With Personalizing Health Care in an Academic Teaching Hospital.

The University Medical Center (UMC) Utrecht piloted a hospital-wide innovation data analytics program over the past 4 years. The goal was, based on available data and innovative data analytics methodologies, to answer clinical questions to improve patient care. In this viewpoint, we aimed to support and inspire others pursuing similar efforts by sharing the three principles of the program: the data analytics value chain (data, insight, action, value), the innovation funnel (structured innovation approach with phases and gates), and the multidisciplinary team (patients, clinicians, and data scientists). We also discussed our most important lessons learned: the importance of a clinical question, collaboration challenges between health care professionals and different types of data scientists, the win-win result of our collaboration with external partners, the prerequisite of available meaningful data, the (legal) complexity of implementation, organizational power, and the embedding of collaborative efforts in the health care system as a whole.

Subjects and their interests in the legal space

The article is devoted to the analysis of complex state-legal processes in conditions of global instability. The observed changes indicate the difficulties of using objective laws and sometimes arbitrary pressure of interests on the vital activity of subjects of law. Therefore, it is important to analyze the creative potential of law, which allows overcoming the difficulties of social development. This refers to the anticipatory impact of the law on the ongoing processes in the interests of civil society, the state, the individual and the citizen. Emerging contradictions between the interests of subjects reduce the potential of law. This is especially noticeable in crisis situations. We have to change legal regimes, restructure the activities of bodies and organizations, and adopt operational acts. This requires the development of mechanisms for the correct reflection of different social interests and the organization of coordinated activities of legal entities and citizens. Taking into account internal and external factors, there is a change in the structure of law. To a large extent, they are caused by digitalization and the transition to big data management, which makes it possible to expand and improve the quality of the information base of legal decisions, more accurately calculate the options for the activities of subjects and the consequences of the implementation of legal acts. Changes in the systematics of law are inevitable, which make it possible to strengthen its impact on people's lives and activities. The interaction of branches of law and legislation is intensifying, and such a new phenomenon as regulatory and legal complexes is emerging. This ensures a combination of different legal regulators to solve strategic and tactical tasks. This facilitates the adaptation of new industries and institutions of legislation in the conditions of rapid scientific and technological development. On this basis, favorable conditions are created for the formation of legal goals for the development of the state. The quality of goal setting should be organically linked to the management cycle in order to achieve them and obtain high final results. Manageability becomes an important criterion for evaluating the ratio of goals, actions and results. It is necessary to improve the work of public and other social institutions. In this regard, the active role of the state as a universal political-governing system operating on the basis of the mandate of society is analyzed, the inevitability of restructuring in the system of public power, in its relations with business and other institutions is stated. The article uses a methodology for evaluating the effectiveness of public bodies, on the one hand, and a methodology for evaluating the operation of the law and other acts, on the other. These elements are connected with the acts of a legal person and social communities. This allows you to evaluate the real effectiveness of management. At the same time, a conflict of interests is inevitable, within which legal conflicts and acute socio-legal conflicts arise. They are based on stable or mobile interests of subjects that sometimes clash with each other. The phenomenon of the “right of force” becomes particularly acute when unlawful interference in the affairs of other States is allowed under the guise of any norms and their arbitrary interpretation. Therefore, an urgent task is to develop ways to strengthen trust and coordination of actions between subjects, the use of institutions of intermediaries and mediators, as well as the potential of soft law. At the same time, the institutions of responsibility should be applied on a solid legal basis. The article is based on the methodology of the continuing continuity of legal development and new turns in the mechanisms of legal regulation. The experience of law-making and law enforcement is summarized. The latest scientific literature and materials of scientific conferences and seminars were used.

Conscientious objection to abortion: how to strike a legal and ethical balance between conflicting rights?

The Italian Supreme Court ruling no. 18901 of May 13, 2021 has determined that doctors who are opposed to abortion can refuse to perform it on grounds of conscience, but such a refusal does not exempt them from providing assistance to the woman before and after the procedure itself. The legalization of abortion should be considered within a broader strategy to put an end to underground and unsafe abortions, to raise awareness and enhance reproductive education and accessibility to contraceptive methods. The authors have set out to briefly analyze the legal and ethical complexities inherent in the effort to reconcile women’s reproductive autonomy and freedom of choice with conscience-based refusal on the part of numerous healthcare professionals. Such an apparent conflict highlights the need for an ethically tenable solution that takes into account the dignity of unborn children, based on the conviction of many healthcare professionals primarily based on moral and religious tenets, that life begins at conception as well as the reproductive freedom and autonomy of women. (www.actabiomedica.it)

Čovek u radnom odelu - radnička prava pred Evropskim sudom za ljudska prava - (član 1 - član 6)

Is there anything more time-consuming in the human experience than our ritual of labouring eight hours or more in at least five out of seven days every week of one's adult life? Naturally, only thinking about this question leads us to the assumption that our very human integrity and therefore human rights are directly involved in the workplace where we usually spend most of our waking hours. However, the law and the economy are not so clear on the intersection between labour and human rights and the debate around their interplay is beginning to gain increasing attention in the academic world. Questions regarding the potential complementarity, conflict, or divergence between the two areas still provoke vigorous disagreements and mostly keep the debate at a stalemate. This article examines the issue and analyses the ECtHR cases in order to consider the legal options for cohesion. The legal, economic, social, and political complexities, function as a starting point for further exploration. Thus, the paper transcends the legal and the economic standpoints, and analyses the very principles that underlie human dignity in the issue at stake.

Judicial Enforcement of Mandatory Provincial Interventions in Municipalities in South Africa

This article evaluates the judicial enforcement of provincial interventions in municipalities as a viable response to the collapse of local government in South Africa. We argue that when relations between municipalities and their communities have deteriorated to a level of deep mistrust and collapse, and when there is dismal service delivery, there is a case for the courts to order unresponsive provincial authorities to intervene in municipalities as provided for in law. Such interventions are necessary in the name of intergovernmental support and co-responsibility. They protect the rights of communities. However, reality shows that judicially ordered interventions are simplistic solutions that do not do justice to the legal and political complexities around such interventions. Party politics and the need for sustained good local governance often clash when the judiciary orders provincial executives to intervene in failing municipalities. Consideration of the aftermath of judicially ordered interventions in selected cases in this article confirms that whereas litigation may enforce the law around provincial interventions and municipal duties, it is a short-term fix that does not bring sustainable solutions to the collapse of local government. Instead, it often exacerbates the situation.

A narratological approach to witchcraft trial records: creating experience

ABSTRACT The article uses narratology as a tool to examine the seventeenth-century witchcraft trials in Finland and the area of Finnmark, Northern Norway, to analyse how experience as a category of knowledge and expression surfaces in original court records. This article focuses on courtroom discourse in witchcraft trials: the interrogation, what the accused confessed to in terms of ideas about witchcraft, and how the personal and collective experience of witchcraft may be traced in court record narratives. A narratological approach to courtroom discourse provides an understanding of the legal practice, contextual conditions, and complexity of the entire trial. By focusing on the confession as a narrative, the analysis unearths the ideas about witchcraft expressed by the individual accused person as well as the echo of the questions posed during interrogation, but also a personalized approach traced by features of orality. Thirdly, the narrative voices that we found were used to investigate how they all contribute to the narrative by exchanging information, knowledge, and interpretation so that, eventually, they create a shared understanding of the experience of witchcraft – or lack thereof.

Рынок труда в цифровой экономике – перспективы регулирования

The article examines the social problems that arise due to the lack of legal mechanisms for regulating social and labor relations in a digitalizing labor market. The author emphasizes that the main result of the formation of the digital economy was the organizational restructuring of the labor market. The consequence of this is the transformation of traditional enterprises that hire staff on the terms of an employment contract into crowd-working platforms that “serve” an unlimited number of employers and provide them with the “services” of workers for the implementation of certain technological operations. The resulting relations are increasingly fragmented and atomized in comparison with the traditional social and labor relations. The legal form of exercising the employees’ right to work is changing – from hired labor into self-employment. As a result of the ongoing transformations, labor relations are deprived of a social component based on the joint responsibility of employers and employees for the social well-being of the latter. Thus, the main legal and at the same time socioeconomic problem in the context of digitalization of the labor market is the “disappearance” (in the legal sense) of the subject that is responsible for the payment of insurance social contributions of digital (platform) workers. This is one of the main social challenges of the digital economy: it is becoming more difficult to fill social funds in the same volumes, to provide insurance for the employed against major social risks, which ultimately threatens the implementation of the social function of the state. The author emphasizes that the deterioration of the social situation is by no means due to the legal or technological complexity of creating effective mechanisms for regulating the labor market in the context of digitalization, it is an objective phenomenon. The crisis that has developed in the world economy prevents the resolution of legal conflicts arising in the field of employment. The problems of regulation of labor relations and the formation of mechanisms for the implementation of social policy in the context of a digitalizing labor market must be perceived only as separate “mosaic pieces” in a single canvas of social problems of modern society in the period of its transformation. When solving this problem, we can talk about choosing from two possible options: either about the return of relations in the sphere of labor to the field of social relations in the legal sense, or about recreating the state system of social protection of the population, taking into account the possibilities of its customization of the functions of public administration, which are given by the universal digitalization.