Legal Scholars Research Articles

The readability of contracts: Big data analysis

AbstractThe plain language movement waged a silent revolution in the last generation, passing nearly 800 laws nationwide with little public debate. The movement asserted that it could scientifically show that there is a widespread readability crisis in legal documents, particularly contracts, that are unreadable to most adults. This article presents the largest empirical analysis of these claims to date, utilizing a dataset of 2 million contracts spanning multiple decades and industries and applying machine learning techniques. The study challenges fundamental tenets of the plain language movement. Contrary to prevailing beliefs, consumer agreements have median reading scores almost indistinguishable from those of daily news articles. A critical evaluation further exposes that readability tools endorsed by the movement are shoddy and manipulable and can produce grade‐level differences of up to 4.6 years for identical texts. Moreover, the movement's core belief that Americans cannot read past the level of an eighth grader is exposed as an unsubstantiated myth. These findings fundamentally challenge the premises and effectiveness of one of the central consumer protection policies. These results call for a radical rethinking of legal access strategies, suggesting a shift from superficial readability metrics to addressing substantive issues in market dynamics and focusing on truly vulnerable populations. More broadly, this case study serves as a cautionary tale about the propagation of myths in legal scholarship and the potential for well‐intentioned reform movements to divert attention and resources from more effective interventions.

State Actions to Ban Gender-Affirming Care for Minors and the Ways Forward

As of October 2023, twenty-one states have passed laws that ban medically necessary gender-affirming care to minors. This Note will discuss the actions of three such states—Texas, Florida, and Arkansas—in 2022.2 These state actions demonstrate three different ways in which states have restricted access to medically necessary gender-affirming care. To move forward, lawyers and advocates must continue to litigate against these bans, state legislatures should enact sanctuary statutes protecting trans youths’ access to gender-affirming care, and the U.S. Food & Drug Administration (FDA) should make medications—including puberty blockers and hormones—available on-label and across state lines through Telehealth. It is important to recognize that disapproving parents pose insurmountable barrier to minors’ self-realization, exploration of their genders, and access to care. There is abundant legal scholarship on parental consent in this context and analogous ones, such as the mature minor doctrine that concerns minors accessing abortion and reproductive care like birth control. However, this Note focuses solely on situations in which transgender youths’ parents support their children’s identities and allow them to receive gender-affirming care. When a state has a ban on gender-affirming care, parents’ consent would not matter in the face of such a ban, unless the family is financially able and willing to move to a state allowing access to such care.

What Is Human Resources Law?

Abstract Human Resources (‘HR’) Law is not a term much used by legal scholars. In law schools throughout the English-speaking world, one encounters courses on employment law, labour law and, less frequently, work law, but no courses on ‘HR law’. Outside of law schools, however, the term is common parlance, at least in North America. But what is HR law? Is it nothing other than employment law, rebranded to appeal to firms and other employing organisations? In this paper, we argue that HR law reflects and reinforces a particular paradigm or vision of work relations that is quite distinct from traditional understandings of labour law’s defining purpose. When it comes to interpreting and applying employment law, moreover, human resource management professionals and HR lawyers assume positions of authority—positions of authority that might be recognised within firms by senior management and, beyond the firm, by courts, policy makers and legislatures. To what extent and with which consequences this is so, is likely to be jurisdiction-specific and demands further investigation.

Ostracism in Japan

Abstract Informal social sanctions such as ostracism are the primary means of controlling deviance in communities. Formal legal sanctions are a costly back-up. Yet outside of university laboratories, studies of ostracism barely exist. We examine legal cases brought by targets of ostracism in Japan, encompassing nearly all the non-trivial reported opinions. The cases do not involve villagers who actually offended their community. Instead, most plaintiffs are victims of opportunistic ostracism, where ostracism is used to extort property, hide community-wide malfeasance, or harass rivals. We explore carefully the non-random character of the disputes and provide a formal model in the annex. We conclude that typical plaintiffs in these lawsuits are not seeking to harness the government's coercive power. Instead, they bring suit for the informational role of courts, aiming to have the court publicly certify that they did not misbehave, contrary to what ostracism might be thought to imply. This analysis contributes to the growing body of legal scholarship on social norms and the role of the courts as informational intermediaries.

Naked ambitions and masked violence: the critical importance of story for law

ABSTRACT The article contends that storytelling is not merely a supplementary aspect of law but integral to its very essence. By examining popular culture and literary works like Frank Herbert’s Dune, the article illustrates how storytelling reveals and critiques the underlying violence and ambitions within legal systems. Structured in three acts, the article first examines legal scholars’ use of storytelling to unmask violence, then juxtaposes literary and legal critiques, and ends by demonstrating law as a unique form of storytelling, essential for understanding and critiquing legal practices.

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.

The Resolution of Overcrowding as a Form of Convention against Torture Implementation to Achieve Security Stability in Prisons and Detention Centers in Indonesia

This research addressed the resolution of overcrowding as a form of implementing the Convention Against Torture to achieve security stability in prisons and detention centers in Indonesia. Errors in the calculation of prisoner numbers that did not align with the size of detention cells led to the phenomenon of overcrowding. In other words, such conditions could be deemed as torture against inmates. Despite Indonesia's ratification of the Convention Against Torture through Law Number 5 of 1998, torture in sentencing remained a major concern. The aim of this study was to examine the causes and impacts of overcrowding, analyze the phenomenon of overcrowding in Indonesian prisons and detention centers in accordance with the Convention Against Torture, and propose solutions to overcrowding as an implementation of the Convention Against Torture. The research employed a qualitative method with a normative legal approach to comprehend and interpret existing legal provisions and evaluate their implementation, thereby identifying the alignment between applicable law and its implementation. Primary data sources consisted of legislative regulations arranged according to the hierarchy of legal norms. Secondary legal materials included textbooks authored by eminent legal scholars, legal journals, academic opinions, legal cases, jurisprudence, and recent symposium outcomes relevant to the research topic. This study found that the Indonesian government endeavored to expand detention space to minimize torture and suffering that could occur in overcrowded cells, thereby facilitating the achievement of the goals of the Convention Against Torture.

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.