Procedural Safeguards Research Articles

Foreclosure Sales Under the UCC During the Covid-19 Pandemic

Under the Uniform Commercial Code (UCC), “every aspect” of a foreclosure sale must be commercially reasonable. The traditional commercial reasonableness standard was tested during the first year of the COVID-19 pandemic, as the unprecedented circumstances imposed by state restrictions prompted increased judicial scrutiny of UCC foreclosure sales. This occurred most prominently in the context of commercial property mezzanine loan foreclosures. A mezzanine loan is a property loan secured by a pledge of equity interests in the property-owning entity rather than a security interest in the property itself. As state mortgage foreclosure moratoriums restricted lenders’ abilities to foreclose on commercial property, mezzanine lenders initiated UCC foreclosures to circumvent this barrier and take control of their collateral. 
 This Note argues that courts adopted a more probing and holistic analytical approach to commercial reasonableness analyses during the first year of the pandemic. This approach more closely analyzed the procedures employed by foreclosing lenders and contextualized fair price considerations within wider market and societal concerns. This Note then proposes ways for secured creditors to protect their foreclosure sales during future periods of market uncertainty. Although secured creditors cannot fully insulate their foreclosure sales from fair price challenges in a market downturn, they should employ additional procedural safeguards to deflect commercial reasonableness challenges aimed at the alleged procedural irregularities of such sales.

Poland: The Right To a Clean Environment as a Personal Interest – Seeking Distinction Between the Personal Interests and the Common Good

Relations between private and public law in each country and at all times are amongst the most sensitive from the point of view of the legal system. Recently several judgements of Polish courts have undermined this division by indirectly allowing the common good to be protected under the personal interests' provisions. This trend is not unjustified. Numerous public institutions and legal instruments, whose primary task was to prevent the common good from being compromised, have retreated from conducting their policies. As a result, many citizens commenced seeking help in the civil proceedings. This article aims to throw a spotlight on those examples of the common good that are currently being granted protection under personal interests' provisions and the yet unnoticed costs of such tendencies. Firstly, the recent resolution of the Supreme Court on whether the right to live in a clean environment is a personal interest is being discussed. The Supreme Court's remarks and case facts are contrasted with the explanation of the personal interests' regulation in Poland. Following that overview, other examples of the common good are being examined, namely the family bonds, the national heritage, and a group's good name. The discussed dysfunctionality of public bodies ensuring the protection of common interests that is being replaced with the use of civil law measures is presented as posing serious threats to other values. The most prominent of them being the freedom of speech, the freedom of scientific research, legal certainty, and procedural safeguards. After that, the alternative solutions with their pros and cons are being discussed. The author concludes that the tendency to substitute this dysfunctionality of some public institutions with the private law has its significant drawbacks, the awareness of which should be raised in the legal scholars debates.

The Protection of Age-related Vulnerable Persons in Criminal Proceedings under German Law – An Examination Measured Against the European Guidelines

Population ageing is a phenomenon that affects our societies, with both the number and proportion of older people growing across Europe. This impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance, in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general. Those needs have been identified by the European Union. On 27 November 2013, the Commission adopted a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.1 The aim of the Recommendation is to encourage Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’). On 27 May 2021, the Council of the European Union invited the Member States to ensure the full implementation of the existing provisions.2 Consideration is being given to whether further action should be taken. This article assesses the extent to which the existing German criminal procedure law currently meets the standards for protecting older suspects and accused persons identified by the Recommendation of the Commission. By establishing minimum rules on the protection of procedural rights of suspects or accused persons in this field, the trust of Member States in criminal justice systems of other Member States can be strengthened and, thus, mutual recognition of decisions in criminal matters can be improved. In order to achieve the establishment of minimum rules, it is necessary to create a common understanding of the systems of the other Member States, which this article seeks to achieve. It also intends to provide insight into the German system that would be needed to decide, together with a consideration of the systems of the other Member States, whether further legislative action at the level of the European Union, in particular in the form of a Directive, is required.

Private Censorship, Disinformation and the First Amendment: Rethinking Online Platforms Regulation in the Era of a Global Pandemic

The proliferation of online disinformation and the rise of private censorship are paradigmatic examples of the challenges to traditional First Amendment jurisprudence in an algorithmic society. The limitations of traditional First Amendment jurisprudence are amplified by the impact of the COVID-19 pandemic in two ways. On the one hand, in the wake of the pandemic, we have entered an “infodemic” era where the volume of disinformation, as well as the harm it causes have reached unprecedented levels. For example, health disinformation has contributed to vaccine hesitancy. On the other hand, even though the proliferation of online disinformation seems to suggest that it is desirable to enforce content moderation more rigorously, the pandemic has also revealed the importance of access to online information, raising concerns about censorship imposed by private platforms on social media users. Furthermore, the high degree of opacity and unpredictability of content moderation pose great danger to users’ First Amendment right. In light of the above consideration, this Note proposes a legal framework that would curtail online disinformation while ensuring users’ right to accessing online platforms. To achieve this goal, this Note argues that the First Amendment should be interpreted as not merely a negative right but also a positive right. That is, the traditional laissez-faire First Amendment jurisprudence, which considers public actors as the sole threat to freedom of speech and neglects the power asymmetry between private platforms and their users, should be rejected. The underlying principle of the positive approach is to design a regulatory regime that is least restrictive and fosters accountability and transparency in content moderation by introducing procedural requirements. In this regard, the recently introduced Digital Services Act in the European Union—which represents a paradigmatic shift from interpreting freedom of speech as a “negative right” (i.e., protecting users from government interferences) to a “positive right” (i.e., ensuring the government provides users with sufficient procedural safeguards to check against private platforms)—could provide some important lessons for the U.S. to reconstruct its online platforms regulation in the era of an algorithmic society.

EU Criminal Law and Persons with Disabilities: Reflections on “Vulnerability” and the Influence of the CRPD

This essay examines how EU criminal law, which regulates certain aspects of criminal procedural law of the twenty-seven EU member states, addresses the situation of persons with disabilities who come into contact with the criminal justice system. EU law on victims and on suspects and accused persons (partially) addresses disability through the prism of “vulnerability.” This essay argues that associating persons with disabilities with “vulnerability” can be stigmatizing. Moreover, the Convention on the Rights of Persons with Disabilities (CRPD), which requires that persons with disabilities have effective access to justice and receive appropriate accommodations, does not link these rights to a prior recognition of “vulnerability.” Even though the EU is a party to the CRPD, the 2013 Recommendation from the European Commission on Procedural Safeguards for Vulnerable Persons Suspected or Accused in Criminal Proceedings, frames disability in terms of “vulnerability.” In contrast, parts of the EU Victims’ Rights Directive address the situation of individuals with disabilities without using the language of vulnerability.

The Current Work of the International Law Commission on Immunity of State Officials from Foreign Criminal Jurisdiction – Comments on the Procedural Safeguards Provisionally Adopted in 2021

The Current Work of the International Law Commission on Immunity of State Officials from Foreign Criminal Jurisdiction – Comments on the Procedural Safeguards Provisionally Adopted in 2021

Wrongful Convictions and Erroneous Acquittals: Applying Packer's Model to Examine Public Perceptions of Judicial Errors in Australia.

The fallible nature of the criminal justice system continues to see judicial errors-that is, wrongful convictions and erroneous acquittals-undermine its integrity, efficacy, and legitimacy. Public perceptions of judicial errors are important contributors to criminal justice policy and reforms. The current study utilizes the 2016 Australian Survey of Social Attitudes (AuSSA) dataset to examine public attitudes toward judicial errors. It applies Herbert Packer's crime control and due process models to understand how concerns around procedural safeguards and public safety are associated with public perceptions toward judicial errors. Packer's model has been challenged by studies, which theorize that the models are not mutually exclusive. Yet, they have not been empirically tested in this context, which is a gap this study seeks to fill. Findings show that due process and crime control concerns shape public attitudes toward wrongful convictions and challenge the notion that Packer's models be applied on a continuum.

The evaluation of a training course to enhance intellectual disability awareness amongst law enforcement officers: a pilot study.

Disability awareness training is mandated by the United Nations Convention on People with Disabilities (UNCRPD), but there is a paucity of evidence regarding the systematic evaluation of the effectiveness of such training. This study describes the evaluation of a pilot intellectual disability awareness programme for law enforcement officers (LEOs) in Ireland. Pre-and post-training Likert scales and a semi-structured survey were used to evaluate the effectiveness of an intellectual disabilities awareness programme delivered to LEOs. Quantitative differences in Likert scores and thematic analyses of practice-based responses were used in evaluation. Twenty-two LEOs participated in the training and 11 completed the evaluation cycle. Statistically significant improvements were found in participants' self-rated knowledge of intellectual disability, their understanding of the challenges faced by people with intellectual disabilities in law enforcement interactions, their communication skills and their knowledge of how to approach a person with a disability in crisis. Thematic analysis excavated potential practical application of learning around pre-arrest considerations, recognition of disability, communication skills and need for procedural safeguards. An approach grounded in the views of people with intellectual disabilities and with emphasis on recognition of disability, communication, accessibility of information and providing appropriate support in custody, appears to promote improvement in self-reported knowledge and prospective application in LEOs. The findings of this study are potentially applicable to countries that have ratified the UNCRPD.

PRE-MODERN INSIGHTS FOR POST-MODERN PRIVACY: JEWISH LAW LESSONS FOR THE BIG DATA AGE

AbstractThis article makes the counterintuitive argument that the millennia-old approach of Jewish law to regulating surveillance, protecting communications, and governing collection and use of information offers important frameworks for protecting privacy in an age of big data and pervasive surveillance. The modern approach to privacy has not succeeded. Notions of individual “rights to be let alone” and “informational self-determination” offer little defense against rampant data collection and aggregation. The substantive promise of a “fundamental human right” of privacy has largely been reduced to illusory procedural safeguards of “notice” and “consent”—manipulable protections by which individuals “agree” to privacy terms with little understanding of the bargain and little power to opt out. Judaism, on the other hand, views privacy as a societal obligation and employs categorical behavioral and architectural mandates that bind all of society's members. It limits waiver of these rules and rejects both technological capacity and the related notion of “expectations” as determinants of privacy's content. It assumes the absence of anonymity and does not depend on the confidentiality of information or behavior, whether knowledge is later used or shared, or whether the privacy subject can show concrete personal harm. When certain types of sensitive information are publicly known or cannot help but be visible, Jewish law still provides rules against their use. Jewish law offers a language that can guide policy debates. It suggests a move from individual control over information as the mechanism for shaping privacy's meaning and enforcement, to a regime of substantive obligations—personal and organizational—to protect privacy. It recognizes the interconnected nature of human interests and comprehends the totality of the harm that pervasive surveillance wreaks on individuals and social relations. It offers a conceptual basis for extending traditional privacy protections to online spaces and new data uses. And it provides a language of dignity that recognizes unequal bargaining power, rejects the aggregation and use of information to create confining personal narratives and judgments, and demands equal protection for all humans.

Psychiatric Evaluation in Chinese Criminal Proceedings:A Legal Perspective

Psychiatric evaluation is widely used in criminal cases to screen people with mental disorder because insanity can either exempt the offender from criminal responsibility or mitigate his/her criminal punishment. The operation of psychiatric evaluation in China used to carry a typical characteristic of civil law tradition, but recent reforms have strengthened the procedural safeguards for psychiatric evaluation and stressed the requirement of its presentation and examination in criminal trials. This article will explore how psychiatric evaluation is conducted, and how the expert opinion is presented and examined as evidence in criminal trials in China. Part I will give a historical overview of psychiatric evaluation in China's criminal cases. Part II will introduce the current legislation on psychiatric evaluation in China. Part III will explore problems with current legislation and practice. In this part, high-profile cases will be cited to illustrate loopholes in the psychiatric evaluation law and practical problems with the operation of evaluation. Potential solutions to these loopholes or problems will also be explored. Part IV will focus on the presentation and examination of psychiatrists’ expert opinion in criminal trials. Although expert witnesses are also required to testify before the court in China, very few of them take the stand in practice. This part will discuss why reforms kept failing and what should be done to bring expert witnesses to court. Psychiatrists are important expert witnesses; the discussion of live psychiatrists will shed light on the appearance of all the expert witnesses in Chinese criminal trials.

The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU\u2019s Weiss Ruling and the German Federal Constitutional Court\u2019s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

What rights matter? Examining the place of social rights in the EU’s artificial intelligence policy debate

References to ‘European values’ are often rooted in some perception of a commitment to particular rights that uphold certain principles about democracy and the relationship between state, market and citizens. Whilst rarely translated into consistent policy frameworks or activities, the formulation of new policy areas, such as artificial intelligence (AI), provide a window into what priorities, interests and concerns currently shape the European project. In this paper, we explore these questions in relation to the recent AI policy debate in the European Union with a particular focus on the place of social rights as a historically pertinent but neglected aspect of policy debates on technology. By examining submissions to the recent public consultation on the White Paper on AI Strategy, we argue that social rights occupy a marginal position in EU’s policy debates on emerging technologies in favour of human rights issues such as individual privacy and non-discrimination that are often translated into design solutions or procedural safeguards and a commitment to market creation. This is important as systems such as AI are playing an increasingly important role for questions of redistribution and economic inequality that relate to social rights. As such, the AI policy debate both exposes and advances new normative conflicts over the meaning of rights as a central component of any attachment to ‘European values’.

Interpreting and Reframing the Appropriate Adult Safeguard

The appropriate adult (AA) safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects (below the age of 18) and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple ways, thus undermining its efficacy. Drawing upon doctrinal and socio-legal analysis, this article examines how the safeguard is—and, crucially, can be—conceptualised. It is argued that, although it is used principally as an evidential safeguard, the appropriate adult could be reimagined through the United Nations Conventions on the Rights of Persons with Disabilities and the United Nations Conventions on the Rights of the Child, with a specific focus on allowing for effective participation of the vulnerable suspect.

Evidentiary Policies Through Other Means: The Disparate Impact of “Substantive Law” on the Distribution of Errors Among Racial Groups

This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.” To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a central objective of evidence law. But improving the accuracy of legal fact-finding is not an exclusive function of evidence law. Different substantive rules and doctrines also influence the accuracy of legal decisions. Albeit valuable, accuracy is neither free nor cheap. A second important consideration in evidence law is the cost of litigation—and the cost of fact-finding in particular. Substantive law also plays a role in determining the expense of adjudication. Since we cannot eliminate errors from an adjudicative system with limited resources, we must decide which errors we are willing to accept and which are worthy of spending more resources to avoid. The third example of evidentiary policy affected by substantive law, and the one this Article focuses on, is allocating the risk of mistaken judgments of fact between parties. Standards of proof stand out as a particularly important evidentiary mechanism to distribute the risk of errors. The final error distribution, however, is also a function of other factors, such as the accuracy of the legal fact-finding and how rules are designed and applied. Substantive rules can alter the error distribution in a myriad of ways. Through graphs and other analytical tools, this Article develops a framework to identify and assess these impacts on various situations, including racial disparities between Black and White defendants. The effects of substantive law on allocating error risk between parties raise important concerns for different doctrines, particularly for procedural due process. Courts have consistently held that procedural due process requires an error-distribution strongly biased in favor of criminal defendants. This requirement is primarily enforced through standards of proof and other evidentiary rules. However, this Article argues that substantive law changes can move us away from an errordistribution strongly biased in favor of criminal defendants. Scholars and practitioners often fail to consider these effects when discussing changes to existing laws. This omission comes at a potentially high cost for defendants’ procedural due process and other constitutional safeguards, especially for minority groups.

OUTLOOK OF ARBITRARY MEASURES OF FAIR AND EQUITABLE TREATMENT UNDER HEALTH URGENCY: THE WAIVER OF PHARMACEUTICAL PATENT

Patent has long been recognized as an important subject of investment particularly for Pharmaceutical Companies. In its development, patents have become one of the most prominent tools in international health investment for its economic benefit sourced from its exclusive right. Most of the Multilateral and Bilateral Investment Treaties recognized intellectual property rights as protected investments, which allows patent holders to benefit from the substantive and procedural safeguards granted by the applicable treaty for foreign investments. In the situation of health urgency, many patents rights are being waived by the government to make the innovation more affordable and accessible to citizens. In this situation, tension in the governance of pharmaceutical patents between patent holders and state authorities is an example of a broader recurring dynamic in international law: the tension between foreign investors' private interests and the host state's regulatory autonom. This research paper will discuss whether the patent waiver enacted by the government is considered as an arbitrary action under the Fair and Equitable Treatment standard as it causes harm to the foreign investor by analyzing several precedent jurisprudences through juridical normative methods

The Commission’s digital services and markets act proposals: First step towards tougher and more directly enforced EU rules?

On 15 December 2020, the European Commission presented its long-anticipated Digital Services and Digital Market Acts proposals. If and when adopted, those proposals would put in place a more stringent regulatory framework ensuring coordinated oversight over the online platform services and digital markets. They would also enhance EU coordinated and direct enforcement in the digital economy, by streamlining the organization and sanctioning powers of national administrative bodies and granting the European Commission far-reaching market supervision and enforcement powers. This legal development article analyses both Acts and calls on the EU legislator to pay sufficient attention to ensuring the feasibility of new regulatory obligations and to foreseeing better procedural safeguards accompanying Commission direct enforcement practices.

Maternal Perceptions of Safeguards for Research Involving Children.

The vitality of clinical research and the health of the public relies on continued efforts to engage children in clinical research in a fully protected and ethically robust manner. Parents serve as proxy decision-makers assessing the risks and benefits of any given study in order to do what is in the best interest of their child. This study investigated maternal perceptions of research safeguards and mothers' willingness to enroll their children in clinical research studies. We hypothesized that mothers' perceptions of the protectiveness of safeguard procedures utilized in clinical research would be associated with mothers' willingness to enroll their children in research studies with such safeguards. Through a survey conducted via Amazon Mechanical Turk, mothers were asked to rate the perceived protectiveness of four safeguard procedures (confidential data coding, data and safety monitoring boards (DSMBs), institutional review boards (IRBs), and informed consent) and the degree to which they were willing to have their child participate in research studies in the presence of each of the four safeguard procedures. Respondents generally perceived safeguard procedures to be protective. Mothers' trust in researchers' honesty positively impacted perceptions of the protectiveness of research safeguard procedures and willingness to enroll children in research. Mothers of only healthy children perceived research safeguards to be more protective than mothers with at least one child with at least one health issue. This study provides insight into whether maternal perceptions of the protectiveness of different safeguard procedures are associated with mothers' willingness to enroll their children in research.

Social determinants of health and slippery slopes in assisted dying debates: lessons from Canada

The question of whether problems with the social determinants of health that might impact decision-making justify denying eligibility for assisted dying has recently come to the fore in debates about...

Expulsion of aliens, non-refoulement and issues related to (administrative) discretion

One of the outcomes of the 2015–2016 migration crisis in the EU is the urgent need perceived to enhance the effectiveness of forced return procedures, including administrative expulsion. However, given the core human rights obligation of non-refoulement, the push for effectiveness needs to be balanced against procedural safeguards preventing “overly effective” proceedings. The example of the Czech Republic shows that an institutional arrangement could significantly undermine the effectiveness of the proceedings when paired with undue conduct of the administration, such as the improper risk of a refoulement assessment. The article argues that the key to effectiveness does not necessarily lie with speedy procedures, but rather with a pragmatic design of the procedures, as can be concluded from a comparison of the Czech and German approaches.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.