Legal Recourse Research Articles

Developing an Online Consumer Dispute Resolution Platform in the Field of E-Commerce in Vietnam: Lessons from the European Union

Abstract In recent decades, e-commerce has gradually become a thriving industry that generated a huge profit and enhanced the life quality of nations around the world, including Vietnam. Nevertheless, the development of the Vietnamese e-commerce industry has also engendered a handful of consumer disputes that could not be easily resolved through traditional, face-to-face dispute resolution methods. A consumer redress system that addresses e-commerce transactions is essential to the continued success and growth of e-commerce. In this paper, we argue that traditional domestic judicial mechanisms for legal recourse do not adequately satisfy the needs of consumers or vendors and propose an online dispute resolution (ODR) system as a more reasonable, efficient and fair alternative. The ODR system will provide a forum in the same virtual marketplace environment in which consumers purchase their goods or services, allowing broad accessibility, as well as swift and affordable recourse for the parties involved. This paper will more specifically discuss the EU experience in promoting the ODR system for consumer e-commerce disputes, which can serve as a reference for the policy makers in establishing the legal framework for ODR in Vietnam. In addition, this paper also suggests a specific set of guidelines for the essential attributes that must be present in the Vietnamese consumer ODR platform.

Religious Courts and Rights in Plural Societies: Interlegal Gaps and the Need for Complex Concurrency

Abstract The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious (secular) courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights.

State Responsibility and Accountability in UN Peacekeeping: The Case of The Mothers of Srebrenica v. The Netherlands

ABSTRACT The legal immunity of the UN has focused the peacekeeping literature on individual accountability and the political willingness of States to prosecute their own. UN immunity applies to peacekeeping operations only when the UN is in effective control. When a State is exerting effective control over its contingent, either solely or jointly, the actions of peacekeepers will be attributed to that State. When States are in effective control, they cannot rely on UN immunity for breaches of their obligations. Once a State is exercising effective control, it must warrant that sufficient mechanisms are undertaken to fulfil its obligations under the law, specifically the extra-territorial nature of international human rights law. The Mothers of Srebrenica case highlights that peacekeeping accountability is not limited to the prosecution of individual peacekeepers. Although UN immunity limits specific avenues of legal recourse, it does not prevent victims from seeking accountability from Troop Contributing Countries.

Militarization, slow violence, and the emerging threat of condemnation in Hawai‘i

This article examines the environmental impacts of the US military presence in Hawaiʻi, looking specifically at the federal government’s power to condemn land for a ‘public purpose’ under the US Constitution. In 2018, the Hawaiʻi Supreme Court ruled that the State of Hawaiʻi failed its duty to properly manage 23,000 acres of lands leased to the military at Pōhakuloa and must take an active role in preserving trust property. With the expiration of this lease (and several others) approaching in 2029, controversy is stirring as to whether the military will simply condemn these lands if the cost of clean-up is greater than the land’s fair-market value at the expiration of the lease. In other words, as long as it remains cheaper for the military to pollute and condemn than it is for it to restore, what options do we have for legal and political recourse? Considering grassroots movements’ strategic use of media and legal action through an environmental justice lens, this article provides a starting point to consider avenues for ensuring proper clean-up of these lands, and ultimately, negotiating for their return to Kānaka Maoli.

South African female sex workers’ interactions with law enforcement: An exploratory study

This study explored the lived experiences of female sex workers (FSWs) when interacting with the police while conducting their business activities. The informants were 10 FSWs, aged 25 to 30 years, who conducted their business in the busy streets of a large South African metropolitan area. They responded to semi-structured interview questions that captured different enforcement strategies and violent police encounters. Thematic analysis indicated harmful interactions characterised by physical violence, harassment, humiliation, and extortion. From these experiences, the sex workers indicated that they had no confidence in police and would not report any cases meriting litigation. Findings may be explained by the criminalisation of the sex work in South Africa. Decriminalisation of the sex trade would enhance sex workers’ sense of safety for their business activities and provide for legal recourse for offenses on them.

Conciliation in Civil Proceedings: Concept, Features, Procedural Forms

Where it is necessary to protect violated, unrecognized or contested rights, freedoms and interests and the legal recourse is chosen for it, each person hopes to receive effective protection in the near future. Unfortunately, such expectations are not always justified because of different objective and subjective factors. A variety of conciliation procedures, through which the dispute is settled by mutual agreement of its parties, are therefore widely available. Similar procedures did not go unnoticed in civil proceedings. However, despite the increased attention to various forms of conciliation at the international level, by the state and in research, today there is no clear definition of the concept, understanding the characteristics of conciliation in the process, as well there is no unanimity on its procedural forms. Such circumstances cause problems in the application of conciliation regulations in civil proceedings. Therefore, the purpose of the article is to define the concept of conciliation in civil proceedings, highlighting and analysis of its characteristics, on the basis of which the existence of procedural forms of conciliation, which can be used by the parties to civil case, is justified. Based on the features of procedural conciliation identified in the research, it is concluded that it is the procedure for the settlement of private law disputes referred to the courts, regulated by the rules of Civil Procedure and applied by the parties for their free will with a view to reaching mutually advantageous agreements between them, which are recorded in the procedural act. At the same time, the Civil Procedural legislation of Ukraine regulates two procedural forms of conciliation nowadays: settlement by a judge (it is the procedure provided by procedural law, conducted by a judge with proceedings in the relevant case) and conclusion and approval of a settlement agreement, which means an agreement reached by the parties to a civil case to settle a dispute referred to court on the basis of mutual concessions, which concerns only the rights and obligations of the parties.

Increasing Pace and Scale of Prescribed Fire via Catastrophe Funds for Liability Relief

Increased prescribed burning is needed to provide a diversity of public benefits, including wildfire hazard reduction, improved forest resilience, and biodiversity conservation. Though rare, escaped burns or significant smoke impacts may result in harm to individuals and property. Liability for potential damages reduces the willingness of fire managers to expand the practice, particularly where the wildland–urban interface creates the greatest risk. Across the United States of America, efforts have been made to reduce prescribed fire-related risks through statutory reform, training and certification requirements, and private insurance. An increasing number of states have adopted the liability standard of gross negligence to protect prescribed fire practitioners. When liability relief is tied to best practices or burn manager certification, risk to the public from potential prescribed fire impacts is reduced. Under this model, however, those harmed by prescribed fire may have little legal recourse for compensation from losses. Here, we explore the pairing of a mechanism to compensate losses while limiting liability for practitioners who use best management practices. Specifically, we assess the suitability of using a catastrophe fund in conjunction with adoption of gross negligence standards, modeled after other natural hazards examples. This model could ensure public support and sustain and expand prescribed fire in many fire-prone landscapes.

Legitimacy and Methods of Judicial Review in Islamic Law and Libyan Positive Law

One who observes Islamic law in its entirety will not understand the legitimacy of an action unless he understands its legislative basis. The same can be said for positive law. Therefore, one who looks into the law of a given matter must have the capability to visualize it. This is what motivates us to study the root of the issue of the principle of criminalization to litigation and sentencing and enforcement in order to clarify the wisdom underlying the legitimacy of judicial review. Herein lies the research problem. This study aims to present a clear view about the basis and methods of judicial review in Islamic law and Libyan positive law, as well as explaining the entities responsible for judicial review in Islamic law and Libyan positive law. This study employed the inductive approach and the analytical descriptive method. Every issue related to the study was scrutinized and compiled from various references of Islamic law and Libyan positive law to form the basis of the study. The data were analyzed to sufficiently answer the research problem. The study found important conclusions and recommendations, among them: the legitimacy of judicial review in Islamic law and positive law comes back to the fundamental reasons prohibiting crime. The constitutional basis of judicial review is the constitutional recognition of the right to litigation and legal recourse, as well as the implementation of the two-level litigation principle. This is the approach taken by the Libyan Constitutional Declaration.

Expanding Conflicts of Interest in Public Health Research

Expanding Conflicts of Interest in Public Health Research

Empire's Labor: The Global Army That Supports U.S. Wars

Empire's Labor: The Global Army That Supports U.S. Wars

Managing the Risk of Self-Judging Security Exceptions Through Insurance: How Recent Mergers and Acquisitions Practice Copes with Investment Screening

Abstract In light of the limited possibility to seek legal recourse against screening of foreign investments on grounds of national security, can insurance provide an alternative avenue to compensate affected investors? The answer is: Yes, but with caveats. For investors, even if insurance does not provide an equivalent to full reparation, it can serve as a useful mitigant of the risk that contemplated investment transactions cannot be consummated as anticipated due to screening measures. For host States, insurance provides a useful mechanism by which they can facilitate compensation of investors without having to disclose information contrary to their essential security interests and thus a means by which host States can remain attractive to foreign direct investment in spite of investment screening.

Transparency, Contracting Frictions, and Trade: Evidence across Firms

Abstract Firms engage in off-the-books activities to avoid taxes and government oversight. We conjecture, however, that hidden transactions also increase a firm’s opacity, which leads to ex ante contracting frictions that may be particularly costly when trading partners have little legal recourse for contract abrogation. We study these tradeoffs using Russian firm- and transaction-level data. Consistent with hidden transactions leading to higher contracting frictions, we show that firms with more off-the-books activities tend to be in low contract intensity industries and are less likely to participate in import/export transactions. Conditional on engaging in international trade, off-the-books firms are more likely to trade in homogeneous products in which quality is easier to identify (JEL D22, D23, D73, F14).

Fighting back: Is defamation law a double-edged sword for #MeToo victims?

ABSTRACT During the past half-century, countless women have been victims of sexual harassment, groping, and rape. When the #MeToo Movement gained momentum in October 2017, women who had victimized began to speak out. If women who were victims of sexual predators had not originally reported being raped but came forward as part of the #MeToo movement two or three decades later and the perpetrators denied it (in essence, accusing the victims of lying), their only legal recourse has been to sue the sexual predators for defamation. The law of defamation is a double-edged sword, however, because if victims use social media platforms to “name and shame” the men who raped them, the perpetrators have also sued their alleged victims for libel. This discussion examines the effectiveness of turning to defamation law as a means of redressing grievances in #MeToo cases, and also applies critical legal theory to these cases. In other words, if there is pervasive structural inequity in the legal system, meaning that perpetrators are often wealthy and powerful men who can easily afford attorneys’ fees, can victims still prevail in court, or can wealthy and powerful perpetrators buy their victims’ silence with non-disclosure agreements?

The Conflation of Single Mothers and Prostitutes in Morocco

The Conflation of Single Mothers and Prostitutes in Morocco

Conflict and Victimization in Online Drug Markets

ABSTRACT In the criminal underworld, transactions generate risk for the parties involved, but in contrast to legal markets, parties are unable to turn to legal recourse when cheated in a transaction. Past research has found that many strategies can be used to manage conflicts, including self-help strategies (vengeance, discipline and rebellion, avoidance, negotiation, settlement, and tolerance) and third-party interventions. In the context of illicit drug markets, ostracism and threats or actual violence are also strategies that have been observed. In this paper, we surveyed 49 online illicit drug market vendors to explore the conflict experiences of drug dealers who participate in online and offline illicit drug markets. The paper aims to describe the conflict and victimization experiences of online drug dealers and to understand the mitigating effect of technologies on these conflicts. The results indicate that conflict and victimization experiences are rare for online drug dealers, but there are still many situations that are not mitigated by the use of anonymizing technologies like those used on online illicit markets. We demonstrate how these conflicts differ between online and physical drug markets.

Poe in Cyberspace: When Pokerishness Went Viral

Poe in Cyberspace: When <i>Pokerishness</i> Went Viral

Decommissioning the U.S. nuclear fleet: Financial assurance, corporate structures, and bankruptcy

Over the next three decades, it is likely that on the order of 100 U.S. nuclear power reactors—almost the entire U.S. nuclear fleet, which at its peak in 1990 operated 112 commercial reactors—will be shut down and decommissioned. Decommissioning is a costly, time-consuming process that involves removing or decontaminating all radioactive infrastructure and related materials on site to prevent risks to public health so that the land can be safely used for other beneficial purposes. Though federal regulations have required that plant licensees prepare financially for this eventuality, we argue that particularly in light of commonly used corporate structures designed to strictly segregate financial risks, and under the current energy market conditions, the financial regulations in place may be insufficient in some exigent situations to ensure successful decommissioning. We explore available options for legal recourse if funding is inadequate in a corporate law context and pursuant to existing federal law. We comment on the possibility that taxpayers might be required to shoulder all or part of the financial liability at “legacy” plants in the absence of structural changes.

Why You Can't Sue Your Broadband Monopoly

The combination of Federal Communications Commission (FCC) regulations and Supreme Court decisions have created a circular regulatory regime wherein the FCC is the sole authority for making determinations regarding broadband internet services as well as the deferential authority for broadband competition and the result is people are left without legal recourse. The FCC determines the classification of broadband network services, which companies are allowed to provide said services, the amount of enforcement authority that will be enacted regarding those providing broadband services, and, in the event that a regional monopoly service provider takes any anticompetitive action, the FCC is also the sole authority to determine the appropriate response. This paper examines how the FCC, along with two decisions of the Supreme Court of the United States, Verizon Communications, Inc. v. Law offices of Curtis V. Trinko, LLP and Credit Suisse Securities (USA) LLC v. Billing. have created a market where all decisions regarding the regulation of broadband networks are deferred to the regulatory agency and restrict legal recourse for citizens that wish to pursue a claim under antitrust laws. Further, this paper will examine what the legal landscape would look like if there were Congressional action to overturn Trinko and Credit Suisse as envisioned in the recently published House Majority Staff Report on antitrust.

PREDATORS UNDER THE BLANKET OF PSEUDO FEMINISM

The concept of feminism is widely been misunderstood. The so-called feminists or let me correct, the pseudo feminists have forgotten the basic quintessence or essence of the feminist movement i.e. equality. While feminism has empowered the victimization of women to be recognized, further understanding of the victimization of men is required. Traditionally, rape was thought to be and defined as a crime committed solely against women. But there are so many men out there who had been a victim of female predators, and even male. On top of that, because of social stigmas and a lack of legal recourse, males are even less likely than females to report an assault. We will try to analyze the patriarchal mindset of society and put forward laws to protect the victims.

Fact or Phallus?

As societal reliance on digital and online communication continues to grow, courts are grappling with how best to provide legal recourse for novel, technology-related issues while still protecting American citizens’ First Amendment right to free speech. The State of Texas recently enacted Penal Code section 21.19, which criminalizes the transmission of unsolicited sexually explicit images to another person—or as it is commonly known, “cyber-flashing.” Cyber-flashing occurs through digital and online platforms, including text messages, apps, and social media. Section 21.19 is one of the first statutes of its kind in the United States. In the age of “dick pics,” this law has emerged at a crucial time in an evolving social and technological world. While section 21.19 has ample support, critics argue that it is ultimately unconstitutional. Proponents argue that it combats sexual harassment and the “growing problem of aggressive and unsolicited sexual communication online.” Additionally, many victims view cyber-flashing as a threatening and intimidating form of sexual violence. This fact is legally significant, in that the First Amendment’s true threat doctrine allows governmental regulation of speech that places individuals in fear of harm. This Article argues that section 21.19 is constitutional under the true threat doctrine and, alternatively, proposes a possible solution for Texas to ensure the statute’s compliance with First Amendment free speech protections.