Legal Scholars Research Articles

Prisión Preventiva en Chile: Presión de la Gestión del Tiempo y Estandarización

The use of pre-trial detention in Chile is widely debated. Chilean legal scholars, for the most part, have advocated a restrictive interpretation. Despite this, empirical research studies on the use of pre-trial detention in Chile has revealed an increase in its use during the last decade and the development of standardized working strategies in judicial decision-making in this institution. To date, we lack in-depth analysis of the practice of this standardization and its specific relationship to pre-trial detention decisions. Based on non-participant observation of hearings and interviews with judges, prosecutors and defense attorneys in courts in the Araucanía and Bio-Bio regions, this article presents an empirical analysis of the application of pre-trial detention in Chile. In particular, how does the standardization of judicial practices influence the way decisions on pre-trial detention are made in Chile? The research study focused on the bureaucratic management of time from a socio-legal perspective. It finds that, in the face of time pressures, courts have adopted specific strategies to organize hearings, generating different types of hearings, each with its own speed and logic of standardization. The article emphasizes the need for a detailed and empirical exploration of the processes of bureaucratization within the judicial system and the tangible impacts these processes have on the fairness of access to justice.

Translating Law and Code in Government: Algorithmic Decisions and Their Legal Effects in Canada

This article analyzes the translation of law into computer code and the use of automated decision-making systems in government to make legal distinctions. Specifically, how are algorithmic decisions tied to law, and what happens when legal effects are mediated through technologies? The sociology of translation and Bruno Latour's theory of law, as elaborated by Kyle McGee, provides the means to study associations between law and technology. I trace how the force of law can be extended when mediated through computer systems and analyze the associations of law and technology in Canada's government, through projects exemplifying the shift to “code-driven law.” These include the translation of “rules-as-code,” and several of the sociotechnical systems governing Canada's borders, demonstrating how design choices in government digital services inevitably shape the outcomes of public policy and can have legal effects. While Latour's legal scholarship avoided traditional questions of legitimacy, a key consideration for automated government systems is how legitimacy is constructed and contested. For rules-as-code, legitimate algorithmic outcomes should be traceable to law, but existing government systems commonly maintain legitimacy by identifying a human actor “in-the-loop” as the ultimate decision-maker, thereby obscuring how thoroughly imbricated human and algorithmic agency are in contemporary governance.

Bibliometric Insights into the "Kathmandu School of Law Review"

This bibliometric study analyzes the academic reach, thematic focus, and collaboration trends of the Kathmandu School of Law Review (KSLR). Through keyword analysis, the research highlights recurring themes such as human rights, governance, policy-making, and development, reflecting a multidisciplinary approach to legal scholarship. Visualizations of co-authorship networks reveal limited collaboration among scholars, suggesting opportunities for the journal to foster joint publications and interdisciplinary partnerships. Citation network analysis indicates a niche area of research with a few central authors like Puja Mitra and Yubaraj Sangroula, while the low overall citation count points to the need for broader academic engagement and visibility. Bibliographic coupling maps show emerging research clusters, indicating the potential for KSLR to build authority in key areas such as South Asian legal systems and international human rights. The study concludes with recommendations for KSLR to increase global outreach, promote interdisciplinary studies, and enhance academic collaboration to strengthen its impact within and beyond the region.

Environmental Just Wars: Jus ad Bellum and the Natural Environment

ABSTRACTWar is bad for the environment, yet the environmental ramifications of warfare have not been widely addressed by just war theorists and revisionist philosophers of war. The law and legal scholars have paid more attention to protecting nature during armed conflict. But because the law focuses invariably on rules mitigating the conduct of hostilities rather than on objective justice of cause, environmental jus ad bellum has been explored even less extensively than environmental ethics in war. Setting out with the presumption against the use of force and its exceptions, this article considers whether environmental harm can trigger a new justification for war, at whose behest, and what might be a proportionate response to aggressive or negligent harm to nature. Force is clearly justified against military attacks. Where environmental harm is not caused by military aggression, proportionality points towards a response short of war. Full‐scale warfare will likely be counterproductive in protecting nature. This is less true if war is fought by drones destroying specific targets, or by cyber‐war, or by alternatives (or supplements) to war such as boycotts, ‘lawfare’, and ‘information/media warfare’. Responding in ways that minimize harm to nature also helps demonstrate ‘right intention’.

Navigating ethical and legal challenges in the HEALthy Brain and Child Development Study: Lessons learned from the ethics, law, policy working group

The HEALthy Brain and Child Development (HBCD) Study, a multi-site prospective longitudinal cohort study, will examine human brain, cognitive, behavioral, social, and emotional development beginning prenatally and planned through early childhood. The HBCD study has faced several ethical and legal challenges due to its goal of enrolling pregnant people (including those with substance use disorder) and their newborns. Challenges not fully anticipated at the outset emerged from the rapidly changing legal landscape around reproductive rights in the United States. By embedding scholars in bioethics and law within research teams and engaging them in conversation with each other and other study personnel, we were able to address many challenges proactively and respond promptly to unanticipated challenges. In this paper, we highlight several important ethical and legal challenges that arose from the first phase of funding through the beginning of participant enrollment. We explain the methods used to address these challenges, the ethical and legal tradeoffs that arose, and the resolution of challenges through the design of the study. Based on this experience, we provide recommendations for research teams, sponsors, and reviewers to address legal risks and promote the ethical conduct of studies with pregnant people and caregivers. We highlight the importance of collaboration with bioethics and legal scholars in studies involving complex and evolving legal risks, as well as the necessity of designing robust approaches to informed consent and maintaining participant trust while navigating ethical challenges in research.

DSHEA 1994 – Celebrating 30 Years of Dietary Supplement Regulation in the United States

The Dietary Supplement Health and Education Act (DSHEA) of 1994 defined the FDA’s statutory authority to regulate dietary supplement products as a category of food in the United States. As we celebrate 30 years post-DSHEA, it is important to reflect on its significance for public health, influence on the continuously evolving and expanding product category, the current regulatory framework, and potential opportunities or modernizing oversight to ensure a strong and well-regulated marketplace. An estimated three-fourths of U.S. consumers report use of dietary supplements, and the product market has grown substantially since the passage of DSHEA, from approximately 4,000 products in 1994 to 80,000+ present day. This growth represents a current $60 billion domestic and $200 billion international market for dietary supplements. Scientists, public health officials, health care providers, patients, consumer advocacy organizations, and the U.S. Food and Drug Administration have all called for reform to what has been described as ‘outdated’ regulation of dietary supplements. Advancing at an even faster rate is published scientific evidence in the space. This special issue of the Journal of Dietary Supplements comprises a collection of articles authored by academicians, legal scholars, representatives of U.S. government agencies, and industry scientists that critically examine the successes, challenges, and opportunities for improving specific aspects of DSHEA and domestic health policy. This editorial provides historical context and milestones of dietary supplement regulation in the U.S. post-DSHEA and offers an overview of the research contained within the special issue. Advancing toward a more transparent and safer marketplace requires trustworthy supply chains, increased adherence to quality standards, additional labeling requirements, and enhancement of post-market surveillance. This special issue seeks to contribute to the broader understanding of dietary supplement regulation and its future direction.

Under the shadow of legality: A shadow hauntology on the legal construction of the Women, Peace and Security agenda

Abstract Considered a landmark in feminist international politics, the Women, Peace and Security (WPS) agenda of the UN Security Council has been the object of many feminist explorations. Feminist legal scholars, however, have grappled with the ‘shadowy’ legality of the agenda, mostly analysing it as an ‘unsuccessful’ legal project: a partial or in progress legal norm, a defective legal form that attests (and furthers) the exile of inclusion of feminists in international law, or yet a formalistic discussion with lesser impact for feminist activists on the ground. Drawing from Avery Gordon’s considerations on taking shadows seriously in our production of knowledge, I propose, however, that reckoning with the shadows of the WPS’s legality enables a more comprehensive analysis of how the agenda has been a successful legal project in its own way. Offering a ‘shadow hauntology’ for the legal status of the WPS, I zoom in on the competing legality perceptions shared by relevant actors, the (gendered and colonially-continuous) shadows that have haunted those perceptions into formation, and how these competing visions have shaped the legality of the WPS as a shadow of its own. This study then offers an alternative way of studying legality both to feminist legal scholarship and studies on international legal sources more broadly. More concretely, it embraces the irresolvability of the legal status of a norm to take stock of the different legal projects and legality perceptions advanced by feminist actors and gender experts, in an effort to understand, in their own terms, the successes achieved.

Pesticide Use and Civil Rights in Central California: Slow Violence and the State

This article presents the findings of the People’s Tribunal on Pesticide Use and Civil Rights (Lindsay, California, September 2023) which provides a nuanced account of the mechanisms by which the state perpetuates/organizes limited response to environmental harms. We apply a “slow violence” lens to community testimony, further informed by interviews and focus groups in English and Spanish, which included officials, scientists focusing on pesticide use and exposure, community leaders, and farmworkers. “Slow violence” illuminates practices and institutions that sustain, routinize, and normalize suffering over time. Ongoing and pervasive civil rights violations on farms and in agricultural communities are only identifiable via slow observation and differ from the “disparate impact” frame of civil rights practice in environmental law. Our results call for social scientists and legal scholars to revisit claims of intentional discrimination rather than disparate impact and point to the potential for civil rights enforcement by state agencies.

Abusive constitutionalism in Poland - on the self-delegitimisation of the judiciary

The concept of abusive constitutionalism became widespread in legal scholarship after David Landau's famous publication. The author defines abusive constitutionalism as "the use of constitutional amendment mechanisms to make a state significantly less democratic than it was before" . He refers to actions that make a particular regime "significantly less democratic" . The result, he points out, is to move away from democracy . He pointed to 2013 as examples of this trend - Honduras, Venezuela or Hungary. "De-democratisation" of constitutional mechanisms is also, in my view, relevant from the perspective of the Polish experience, though viewed differently than usually presented in the political debates. It turns out that democratic mechanisms and their implementation are undermined by those judiciary representatives who, simultaneuosly, accuse the authorities introducing solutions in line with democratic principles of violating the rule of law.

The two faces of Franco-Sudanian Treaties: The peripheral practice of ratification as evidence of transregional international law in the nineteenth century

Abstract Legal scholars continue to revisit historical treaties between Western and non-Western nations to challenge long-standing accounts of non-Western peoples’ engagement with international law. Following this trend, new scholarship has stressed African agency in Euro-African treaty-making. However, legal scholars have generally overlooked African perspectives, pointing to a lack of sources. Focusing on nineteenth-century treaty-making between France and the polities of the Western Sudan in West Africa, this article excavates African perspectives through a novel reading of Euro-African treaties in an African context. This reading analyses treaties within the Western Sudan’s broader diplomatic corpus in both French and Arabic. By focusing on markers of translation, transcription, and negotiation left on different copies of treaties, this method brings to light arguments and practices that have been obscured in published European-language versions. Reading Franco-Sudanian treaties in a Sudanian context reveals that different norms governed the ratification of treaties in the Western Sudan and Europe. Treaties that scholars have long considered unratified were in fact ratified according to Western Sudanian norms, which designated the governor of French Senegal rather than the French president as the official competent to ratify treaties for France. However, when French officials sought to use treaties to claim sovereign rights in West Africa against Great Britain, they pressed the president to ratify them again. Presidential ratification thus served to transpose Franco-Sudanian treaties from an African to a Western normative order. Uncovering the African origins of Euro-African treaties thus reveals their differential operation across autonomous inter-polity orders.

Citing Jorge Luis Borges

Abstract The works and ideas of Jorge Luis Borges have had a major impact on literature, movies, art, philosophy, and pop culture. His influence in these areas has been documented and studied. To date, however, there has been no significant effort to catalog or discuss the impact Borges has had on legal scholarship. The impact is significant. Hundreds of law journal articles, essays, and book reviews reference Borges and his work. For instance, authors have used Borges stories as a lens through which to analyze legal doctrines and developments. Others have quoted Borges to help convey particular ideas or principles. This paper aims to identify all references to Borges and his work in the legal scholarly literature, and to analyze the ways authors rely on Borges to determine the nature and extent of Borges's influence on legal scholarship. My aim is primarily to evaluate the scholarly treatment as a whole, rather than focus on individual cases. As such, I have attempted to compile a comprehensive list of Borges references in the legal scholarship to date. If I have omitted any scholarly works that should be included, please let me know and I will happily add them.

What we talk about when we talk about ‘human shields’: Reading international law through images

Abstract This article advocates a turn to the visual in legal scholarship. The phenomenon used to elucidate this methodological proposition is the figure of the ‘human shields’ under international humanitarian law, viewed from within the lived history of the peoples of the Global South. Today, the ‘human shields’ notion profoundly shapes how international law operates in scenes of intense organized violence. Once deployed, the human shields claim triggers a radical shift in the applicable international legal framework. After this point, harm to the civilian population and space can be legally authorized and justified. This article challenges the ways in which the ‘human shields’ notion continues to be debated in mainstream legal scholarship and discourse in terms of doctrinal interpretation, examination of evidence, or analyses of ‘asymmetricity’ and ‘urbanization’ as ‘challenges’ in ‘contemporary’ war. Before any such inquiries, I argue, it is crucial to pay attention to the visual and the lived history of the peoples of the Global South. Images that exist in the cultural realm – of and about war and crime, the human shielding spectacle and its actors, and Global South societies – structure and delimit the legal conversation and predetermine its possible outcomes. I propose, in sum, an attention to the visual as a site of the legal inquiry that can inform our understanding and critique of the law and politics of human shields. Images enable, rationalize and provoke the emotions necessary for an ‘exceptional’ operation of international law that authorizes massive violence against Global South spaces and peoples.

Contested Grounds and Missing Sticks: Assessing the Legality of India’s Surgical Strikes in Pakistan

The article wades into the contested issue of the legality of India’s surgical strikes in Pakistan in the last decade. While legal scholars have deliberated on the legality of India’s actions, international relations (IR) have remained silent, thereby underlining the chasm between IR and international law when it comes to international issues. This article evaluates the competing claims made by legal scholars by engaging with developments in international law pertaining to the use of force as an ‘outsider’ approaching the issue from a fresh vantage point. It finds the argument regarding the weakness of India’s legal position to be more convincing. However,it does not fully subscribe to the reasons attributed for the weakness. Drawing on insights from IR, it highlights the salience of political considerations and incentive structures. The article argues that a comprehensive view that includes legal and political dimensions needs to be taken to appreciate India’s stand regarding the surgical strikes.

The Essence of the Ex aequo et bono Method and the Rules of its Application for the Resolution of International Disputes

One of the most important functions of law is the resolution of disputes. However, legal means of dispute resolution, such as judicial settlement and arbitration, are often not chosen by the parties involved in international disputes. This can be explained by several reasons. In legal doctrine, it is a common view that parties avoid legal means due to the binding nature of the decisions rendered, yet this is far from the only reason why parties refuse these methods. In particular, one of the main reasons they avoid legal means is the uncertainty regarding whether the decision based on law will be equitable. There are many grounds for this, as legal norms contained in international legal documents, adopted several decades ago, may not correspond to modern realities. Therefore, the application of such norms can quite reasonably raise concerns among the parties about the potential for an inequitable decision based on them. In such cases, the method of ex aequo et bono may prove to be a practical tool for excluding the possibility of an inequitable decision based on legal norms. Contrary to popular misconception, the use of the ex aequo et bono method does not imply a complete rejection of legal norms. When applying this method, basic legal norms are often used to provide a legal foundation for decisions and to enhance their overall objectivity. However, in the application of the method ex aequo et bono, those legal norms that may lead to an inequitable decision are not applied. In this case, an equitable decision is often determined based on an analysis of the goals and principles of legal documents regulating the relevant issues, including an analysis of the document containing the legal norm whose application could have led to an inequitable decision. Thus, the ex aequo et bono method is a rather flexible peaceful means, combining valuable features of both equity and law. There is a deficit of information regarding the ex aequo et bono method in international legal documents. In particular, the lack of a clear definition, conditions, and rules for applying the ex aequo et bono method presents a significant obstacle to its extensive use in international practice. Therefore, appropriate lawmaking work should be undertaken in this area to fill legal gaps. The goal of the scientific article is to study the legal aspects of the ex aequo et bono method and identify the main problems negatively affecting the practice of its application. The results of the research showed the high practical value of the ex aequo et bono method in dispute resolution, especially in modern conditions when the use of flexible means is becoming increasingly relevant. The article aimed to condense, specify and expand legal knowledge about the ex aequo et bono method and may present significant scientific value for lawyers interested in judicial and arbitration practices; legal scholars; practicing judges and arbitrators; parties with unresolved disputes; as well as philosophers researching the relationship between equity and law.

The Right to Privacy: Foundations and Protections in Islamic Jurisprudence

Islam honors human beings by acknowledging a set of rights, including the right to privacy, as stated in numerous international legal articles which aim to protect it. This study aims to elucidate the foundations of the right to privacy in Islamic jurisprudence by examining religious texts and clarifying the protective methods provided by Islamic law. To achieve the desired results of this research, I have relied on an inductive analytical method. Among the conclusions reached is that Islamic law addresses the components and branches of the right to privacy, even though the term "privacy" itself is not explicitly mentioned. Islamic jurisprudence has established both preventive and punitive measures to protect this right from violators. I recommend that jurists and legal scholars conduct comparative studies between the right to privacy in Islamic jurisprudence and secular law and expand on how to protect this right from modern technological infringements.

Lies my child welfare system has told me: The critical importance of centering families' voices in family policing legal advocacy

AbstractThe web of law, regulation and policy which forms the modern day “child welfare” system is organized around one central unifying principle: the notion that these laws, regulations and policies are necessary to protect and save children. Yet an ever‐growing and overwhelming chorus of “lived experts” – individuals who have been impacted as a parent and/or child by what is more aptly called the family policing system – as well as by advocates and scholars, are drawing attention to the degree of harm the system causes to the families it purports to help. Even though the harms the family policing system causes are well known, the family policing system continues to justify these harms as warranted in the name of protecting children. More concerning, even well‐meaning advocates and scholars who acknowledge the harms, implicitly and explicitly continue to perpetuate the big lie that the family policing system's intention is benevolent and caring. The impetus for any law is a story; law identifies a problem and seeks to resolve it. But what happens when the story is false? The stories we tell about the need for family policing perpetuate harm and replicate systemic racism. Most importantly, the impact of these false narratives can be felt through generations of families leaving devastated communities. The stories, perspectives and opinions of those most impacted by the system historically have been, and continue to be, intentionally left out of the making of law and policy, and even in the teaching of the law. Unless the actual perspectives of families are present to challenge the stories that are woven into the law, these narratives will continue to create significant obstacles to critical thought about the law, prevent meaningful legal change, and ultimately cause continued harm to families and communities. In this essay, in the tradition of participatory law scholarship (Note: Rachel Lopez, Participatory Law Scholarship, 123 Colum. L. Rev. 1795 (2023) [“Participatory Law Scholarship or (PLS)… is an emerging genre of legal scholarship written in collaboration with authors… who have no formal training in the law but rather expertise in its function and dysfunction through lived experience.”]), the authors, a parent and professional advocate, and a clinical law professor and attorney, seek to unpack the myths which are built into the laws of family policing. In reckoning with these myths, the paper seeks to propose a critical framework to both acknowledge the intentional trauma and harm caused by the family policing system, and to disrupt and dismantle the fictions that are the underpinnings of the laws and regulations that continue to perpetuate these harms. Ultimately, this paper argues that by centering the lived expertise of families' voices and perspectives in legal advocacy, we can form a cogent vision for true safety for families and communities.

Between Consumption and Liberation – A Critical Analysis of Women’s Legal Trajectory of Emancipation, Regulation and Gender Pricing

ABSTRACT Law is always perceived as pivotal to women’s emancipation. Women gaining any form of legal recognition is construed as a step towards gender equality. Therefore, when looking to address issues around gender pricing – charging consumers differently for the same product or service because of their gender – experts turn to law as an obvious solution. Legal scholars suggest anti-discrimination regulation as the answer to liberation, and economists argue women should make better consumer choices. However, neither of these approaches addresses the problem in its entirety. In this article, instead of presenting anti-discrimination as a solution, I take gender pricing as a case study to map the intersection among law, gender, and capital and understand why the law might not be the answer leading women to emancipation. Through Queer Marxist lenses, I start by presenting gender pricing as a burden affecting women in the consumption sphere. In the second part, I focus on consumption and its relevance for the imposition of gendered subjectivities as part of an accumulation strategy. In the third part, I draw a parallel between the stages of women’s emancipation trajectory and the forms of backlash they face in their liberation struggle. As a case study, gender pricing allows me to understand consumption as an instance or site of regulation of gendered identities that goes beyond the formal equality achieved in law. The conception of women as consumers, mainly in the global North, reinforces particular subjectivities according to a historical process and is part of capital accumulation strategies. While corporations profit from gender pricing commodities, women are comparatively impoverished by gender pricing and other economic burdens, thus allowing men to maintain their hierarchically superior economic position.

взаимодействие внутригосударственного и международного права в Таджикистане в условиях глобализации и мировых вызовов

The interaction of international and domestic law being a central issue of legal doctrine and practice has always attracted the attention of legal scholars, which indicated the relevance of its study both within the framework of international and national legal systems. The relevance of their interaction is doubly increased when, in the conditions of international legal crisis and conflicts, the influence of international law on interstate relations is minimized, and politicians, diplomats, scientists and the world community in general began to doubt its legal effectiveness in regulating international relations. In modern conditions in the process of interaction between international and domestic law, the state begins to proceed from national interests and primarily in the regulation of social relations began to rely on national legal systems. Hence, there is a need to reconsider the forms and mechanisms of interaction between international and domestic law, which were formulated in the middle of the last century and as it seems to us are no longer able to regulate the new social relations of not only the new century, but the new millennium.

К вопросу о природе юридически значимого компромисса

In the first decades of the 21st century, legal scholars paid attention to the phenomenon of compromise in law. Some of its aspects were covered in both general theoretical and industry-specific legal studies. In this article, the author draws attention to a range of problems in the field of compromise in law that, for some reason, remained outside the field of view of researchers. In particular, he states the presence of a tendency to idealize the phenomenon under consideration. The absence of a single generally accepted approach to its definition is noted. The author also draws attention to the fact that in modern domestic legal science an unjustifiably narrow understanding of compromise in law has developed. He provides a system of arguments in favor of the fact that the number of legally significant compromises should not be limited exclusively to socially useful compromises. Along with them, some socially harmful compromises should also have a legal coloring. The author has formulated proposals aimed at improving the conceptual and categorical apparatus of legal science. In particular, he proposes to operate with such concepts as “legally significant compromise”, “egal compromise”, “illegal (unlawful) compromise”.

Zarys modelu zaskarżania orzeczeń sądowych wydanych w pierwszej instancji w postępowaniu cywilnym przed sądami federalnymi w Stanach Zjednoczonych. Analiza prawnoporównawcza i postulaty de lege ferenda

The article aims to formulate a proposal to improve the model of appealing judgments currently operating in Polish civil proceedings on the basis of the solutions in place in federal court proceedings in the United States. With the use of the analysis of relevant statutes and secondary legislation, case law and views of legal scholars, the most important aspects of the topic were presented with comparison to the Polish civil procedure regulations. As a result of the analysis appeals as of right and by permission were distinguished, the latter not being present in Polish civil proceedings, and de lege ferenda suggestions based on American solutions were formulated regarding the Polish civil proceedings.