Law Project Research Articles

Oral history as an analytical tool: Eve Mahlab and the Australian Trailblazing Women Law Project

ABSTRACT This article adds to a growing body of literature that aims to correct the traditional lack of attention to the role of women lawyers who have exercised their power as active citizens by participating in legal reform and facilitating access to social justice for all Australians. The paper highlights the unique contribution to gender equality of one such woman, Eve Mahlab AO, through a close examination of her oral history, which was drawn from the pilot stage of a project that now comprises a corpus of over fifty interviews recorded with ‘trailblazing’ Australian women lawyers. The methodology adopted is innovative in combining a legal analysis and a discourse analysis of the interview with Eve Mahlab. This approach offers insights into those aspects of her personal and professional biography that most influenced and enabled her contributions in the public and private spheres, allowing us to publicly acknowledge and record them. The paper demonstrates how such use of oral history broadens and deepens our understanding of the diverse social and professional forces that shape political consciousness and motivate feminist engagement in civic activity.

About the Contributors

About the Contributors

Integrating Lawyers into the Perinatal Health Care Team: Initial Findings From an Innovative Medical–Legal Partnership [ID: 1377957

INTRODUCTION: Health-harming legal needs (HHLNs), social determinants of health that have a legal remedy, are drivers of poor health outcomes for Black women and children. HHLNs include inadequate access to safe housing, employment accommodations, and income supports. A medical–legal partnership (MLP) adds an attorney to the health care team to address patients’ HHLNs in a variety of health care settings. The Perinatal LAW Project (P-LAW), an MLP between the Georgetown University Health Justice Alliance and MedStar Washington Hospital Center Women’s & Infants’ Services, addresses perinatal patients’ HHLNs in an obstetrics and gynecology practice. METHODS: Perinatal LAW Project attorneys record client and case data in a legal case management system. The research team analyzed data for the first 18 months of the program (March 2021 to September 2022). RESULTS: One hundred thirty-one patients were referred for legal assistance, primarily by social workers and health navigators. Most patients were in their second and third trimesters. The majority of patients were Black or African American, aged 20–34, and lived under 200% FPL. The most common legal issues were in the areas of employment (parental leave, discrimination), housing (conditions, eviction), public benefits (food stamps, disability benefits), and family law (child support, domestic violence). The P-LAW addressed 150 legal issues and served 117 patients. CONCLUSION: Medical–legal partnership is a novel approach to addressing maternal health disparities. In our experience, legal services have a high utilization rate and patients often have more than one legal need. Future efforts to measure patient outcomes, including reduced maternal stress and medical appointment attendance, will build the evidence base for MLP in the perinatal context.

Scales of subversion

Scales of subversion

Creating the Identity of a Lithuanian Social Business Enterprise

In Lithuania social enterprise as a social category is formed through defined legal social enterprise criteria and their detailed requirements. This suggests that the criteria for the legal definition of a social business enterprise form the identity referents of a social enterprise as a social category. Between 2018 and 2021, seven law projects were submitted to the parliament of Lithuania that aimed to establish criteria defining social business enterprises. Study of these documents aims to identify criteria for a legal definition of Lithuanian social business enterprises that form the defining attributes of the identity of these enterprises, important for the organizational communication of the social business enterprise. The study revealed that the set of legal criteria – entrepreneurship (doing business), social goals aimed at solving social problems and activity stakeholder involvement – define social business enterprises. This exhibits that Lithuanian social business enterprises are institutionalized as hybrid organizations. The assessment of these identity referents showed that their use in the communication of the organization does not ensure the separation of the social enterprise from the subjects of the non-market subsector of the social economy. It has been observed that the exclusion of a social enterprise from other entities can be constructed by elements detailing the referents, often depending on the success of the company’s activities. This ultimately indicates shortcomings in the legal definition of social economic enterprises in Lithuania.

Qualifying work experience: do Street Law projects provide a “legal service”?

Qualifying work experience: do Street Law projects provide a “legal service”?

Zaključenje ugovora i pravna sigurnost - primena međunarodnih standarda u srpskom ugovornom pravu

The paper addresses the rules governing the conclusion of contract from the aspect of the prevailing international standards in this area and their comparison with the appropriate solutions of the Serbian Law of Obligations. The international standards in the field of conclusion of contracts have been analysed primarily in the light of the relevant rules of the CISG, as one of the most widely accepted international conventions in the field of contract law, while also giving due consideration to the solutions of other important international documents and projects of uniform contract law, such as UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law and the Draft Common Frame of Reference for European Private Law. Among the plethora of issues relevant to the conclusion of the contract, the paper places the focus on those which seem most important from the perspective of their comparative analysis with the solutions of the Serbian Law of Obligations: negotiations, offer (contents of the offer, to whom the offer is addressed, revocability of the offer), acceptance of the offer (contents of the statement indicating acceptance of the offer) and the time of conclusion of the contract. Each of these issues has been separately analysed and evaluated in an endeavour to identify those solutions that contribute to achieving a higher degree of legal certainty in the relations arising from the contract conclusion, without standing in the way of party autonomy in this area.

‘“Russian-Polish Dispute Resolved by History”: The Polish Question in the Liberal Projects of the Basic Law of Russia at the Beginning of the 20th Century

The paper considers the process of the evolution of the “Polish question” in the Russian legal liberal thought of the early 20th century. The specificity of this period lies in the attempts to transfer purely theoretical projects to the practical sphere during the formation of proto-party organizations and the development of drafts of the Fundamental State Law of Russia. The national component of these documents has largely remained beyond the scope of scholars’ interests, which explains the focus of the paper. The research relies on archival records and, on the one hand, aims to evaluate the contradictions with regard to this issue within the liberal camp , and on the other hand, to trace the complex process of reaching a compromise between representatives of Russian liberalism and the politically active Polish public in the context of growing opposition.to Russian autocracy. In an effort to keep the Russian Empire united and indivisible, representatives of the new liberalism were gradually beginning to perceive the “Polish question” as one of the directions for finding allies in the struggle to establish a constitutional law and order in the country. The main outcome of the examination by Russian liberals of the “Polish question” within the framework of the drafts of the Fundamental Law of Russia was their acknowledgment of the need to make the problem of Polish autonomy a separate item in the political program as well as to develop its borders in details.

Szczególny status francuskiej Rady Stanu

The Council of State is a body that is a permanent element of the political system of the French Republic. Its genesis dates back to the Consular period. The Council of State, despite numerous and serious political transformations in France over the last two hundred years, has gained authority and contributed to the stability of the concept of strong protection of individual rights. The important role of the Council of State resulted not only from legal changes (here, the Act of 1872, as a result of which the Council gained jurisdictional independence, was of crucial importance); its jurisprudence has also played an extremely important role. The Council gave special importance to many statutory freedoms and rights by referring to the Declaration of the Rights of Man and Citizen of 1789. Today, the Council of State protects the constitutional order by performing two main functions: it is the consultative body for government law projects and regulatory acts and the highest administrative judiciary body. However, in order to understand what role this body plays nowadays, it is necessary to refer to the genesis of its creation, because it corresponds to the consolidation of republican ideas in France. On the margin of the main considerations of this study, it is worth recalling that in the interwar period in Poland, numerous projects were put forward to create a Council of State on the French model. Awareness of the role of this body was very significant in the legal and scientific circles of that period. It was considered that the Council, consisting of eminent lawyers, should primarily give opinions on draft legal acts and thus contribute to shaping better law by political centers of power. The submitted postulates, some of which took the form of specific projects, were never implemented. The French Council of State has a special status today, which is the result of its authority, achievements, and the specificity of the organization and its work. The dominant research methods that have been used are the dogmatic-legal method and the historical-legal method.

Gender and the international judge: Towards a transformative equality approach

AbstractThere is a dearth of women judges sitting on international courts and tribunals. This contribution pays attention to the question of why judicial gender matters. Demonstrating that sex-based differences play an important part in judging has challenged even the most committed essentialists. Legitimacy-based arguments are deemed inadequate in so far as they fail to address the structures of power and discrimination that create exclusions. In this contribution, I argue that the dearth of women judges matters because it is both symptom and cause of the highly gendered way in which international law and international institutions operate. Drawing on Erika Rackley’s early work in which metaphor is used to reveal the gendered nature of the judicial role, I call forth the idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law. The female judge, conversely, is a disruptive force as her very presence places gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, this contribution concludes that an approach to judging that acknowledges and challenges structures of power – including gender – contains transformative potential. However, it is potential that must find a way to operate within significant institutional and normative constraints.

Inside the Europeanization black box: the evolution of corruption risk in Albania’s public procurement

ABSTRACT The Western Balkans EU candidate countries face rule of law challenges far more serious than Hungary or Poland did at the time of their accessions in 2004. Despite extensive EU conditionality and support, with 16% of EU pre-structural funds dedicated between 2014 and 2020 to rule of law projects, governance indicators show no substantial change. The European Court of Auditors (ECA) also found little impact in advancing the rule of law in the candidate countries in the Western Balkans. The European Commission, however, does report signs of progress. By drawing on public procurement data from the two sectors concentrating most public expenditure, namely health and construction, between the years 2017 and 2019, this paper solves the dilemma of how allegedly successful reforms can happen without much impact. By directly measuring government favouritism in procurement, before and after EU-driven reforms, the paper finds that evolution has so far been limited despite proving the effect of certain interventions. The paradox is explained by providing evidence of versatile behaviour by the main rent owners and the increasing discretionary power of Albania’s governing party.

Contrasting Forest Loss and Gain Patterns in Subtropical China Detected Using an Integrated LandTrendr and Machine-Learning Method

China has implemented a series of forestry law, policies, regulations, and afforestation projects since the 1970s. However, their impacts on the spatial and temporal patterns of forests have not been fully assessed yet. The lack of an accurate, high-resolution, and long-term forest disturbance and recovery dataset has impeded this assessment. Here we improved the forest loss and gain detections by integrating the LandTrendr change detection algorithm with the Random Forest (RF) machine-learning method and applied it to assess forest loss and gain patterns in the Zhejiang, Jiangxi, and Guangxi Provinces of the subtropical vegetation in China. The accuracy evaluation indicated that our approach can adequately detect the spatial and temporal distribution patterns in forest gain and loss, with an overall accuracy of 93% and the Kappa coefficient of 0.89. The forest loss area was 8.30 × 104 km2 in the Zhejiang, Jiangxi, and Guangxi Provinces during 1986–2019, accounting for 43.52% of total forest area in 1986, while the forest gain area was 20.25 × 104 km2, accounting for 106.19% of total forest area in 1986. Although the interannual variation patterns were similar among three provinces, the forest loss and gain area and the magnitude of change trends were significantly different. Guangxi has the largest forest loss and gain area and increasing trends, followed by Jiangxi, and the least in Zhejiang. The variations in annual forest loss and gain area can be mostly explained by the timelines of major forestry policies and regulations. Our study would provide an applicable method and data for assessing the impacts of forest disturbance events and forestry policies and regulations on the spatial and temporal patterns of forest loss and gain in China, and further contributing to regional and national forest carbon and greenhouse gases budget estimations.

OBSTETRIC VIOLENCE

The work approaches the lack of legislation to regulate acts of obstetric violence. The analysis is carried out from the perspective of the demands of the cyberfeminist movement in Brazil. Therefore, the research consists of verifying whether the Bills in Process in Brazil from 2015 to 2021 meet the requirements of cyberfeminism. For the analysis, specific criteria were determined, based on the understanding of the movement. The demands of cyberfeminism point to the need for a conception of obstetric violence, in legal documents that define and criminalize it, which will help in identifying and holding the driver responsible, in addition to public policies in favor of restraint. Therefore, it was possible to see that most of the Projects partially meet the requirements of cyberfeminism, and it is possible to note that law project No. 878/2019 is the one that best suits the specificities of the movement.

Attempts to Codify Personal Matrimony Law in the Second Polish Republic. A Fiasco or Perhaps a Success?

After regaining independence in 1918, Poland inherited five different post-partition legal orders from the 19th century, regulating personal matrimony law on its territory, i.e. Prussian, Austrian, Hungarian, Russian and Polish from the times of the Kingdom of Poland. This situation required urgent reform and taking codification steps. The codification task was entrusted to the Codification Commission, established in 1919. Its result was the governmental matrimony law Project adopted in 1929, known as Lutostański’s Project. Unfortunately, it was not passed by the Sejm. It happened because of the opposition of the Catholic Church and other conservative forces. The reasons for this state of affairs were too modern, for those times, legal solutions contained therein, and above all, the possibility of obtaining a divorce. Many legal solutions included in this project can be found in modern matrimony law, i.e. almost a hundred years later. Nevertheless, the very idea of codification and the adopted main principles of matrimony law should be considered a success of Polish legal thought. The more so because many of these solutions were used in post-war Poland in the Decree on matrimony law in 1945 and are known in contemporary matrimony law.

“INFÂNCIA SEM PORNOGRAFIA” E O MOVIMENTO ANTIGÊNERO: APROXIMAÇÕES CONCEITUAIS

Abstract: Given the proliferation of Law Projects titled “Childhood Without Pornography” in Brazil, this article has as its aims to comprehend how this dispersal happens and what are its discursive impacts on Brazilian education. It is questioned, here, if the emergency of such legislative acts can be seen as an expression of the antigender movement. For such, a double movement was achieved: firstly, the debate about pornography and education was mapped in order to, secondly, make a survey on the propositions of this kind already made in Brazil. Fifty occurrences of that type were found in Brazil and, from them, we argue that the law project titled “Childhood Without Pornography” can be understood as a new expression of the antigender movement in Brazilian education.Keywords: Childhood Without Pornography. Antigender movement. Education.

‘Mutual aid is present in every crisis’: An Interview with Dean Spade

The Covid-19 pandemic unravelled a crisis of the modern state, and its legal institutions on the one hand, and on the other hand of our interpretive frames—both philosophical and scientific. It is here that the idea and practice of mutual aid gains significance, both to think about how we can respond to acute crises of planetary scales as well as to the crisis of critique in the discipline of law. The task of mutual aid is not to rehabilitate law out of its crisis or to restore conditions and systems back to a state prior to a crisis. This is because, as Dean Spade says in this interview, ‘they are not broken systems needing to be fixed. They are working exactly as they were designed to work, constantly sharpening violence against targeted populations and enriching a very few people.’ Spade—Wismer Professor of Gender and Diversity at the Seattle University School of Law and a founder of the Sylvia Rivera Law Project—is a key scholar-activist voice on mutual aid in North America and Europe. He is author, most recently, of Mutual Aid: Building Solidarity During this Crisis (And the Next). In this conversation with Oishik Sircar, Spade discusses his theoretical and political influences, how he relates the idea of crisis to critique, his sobering assessment of the limitations not only of law reform but of the role of legal education in radical transformation, his own understandings of mutual aid, his favourite words, why and how he does not see himself only as a legal scholar-activist, and his vision of hope and hopelessness in times of acute and intense crises.

Livingston et Mignault : voyages civilistes et codificateurs en terres d’Amériques

The opening up to foreign legal systems had a strong impact on the 19th century in North America. Pierre-Basile Mignault, the Canadian, and Edward Livingston, the American, were both active travelers and particularly curious about the French and Anglo-Saxon legal traditions. Livingston, through his participation in the drafting of the Louisiana Civil Code and the drafting of his criminal law project, became the paragon of a method, of the civil law codification model adapted to the common law tradition. Mignault, although perfectly mastering both worlds, became the icon of the defense of the integrity of the civil law system in the exercise of jurisprudential interpretation.

A Conversation between Wendy Brown and Amy Kapczynski

This special issue of SAQ was convened to facilitate dialogue between critical scholars outside of the legal academy and a new wave of legal scholars focused on the critique of capitalism. The following conversation furthers that effort by bringing together two major scholars who demonstrate the stakes and importance of establishing and developing these intellectual connections. Amy Kapczynski is one of the founders of and most prominent voices in the Law and Political Economy (LPE) Project, whose work focuses on the political economy of the politics of care, informational capitalism, and health. Wendy Brown is a political theorist who, in addition to being a preeminent scholar of neoliberalism and democracy, is one of the central figures bringing the study of law into political theory.

Legal Pluralism and Science and Technology Studies: Exploring Sources of the Legal Pluriverse

In introducing the contributions to this special section, we explore the links between social and juridical concepts of normativity and science and technology. We follow the Legal Pluralism challenge to the notion of state law as the sole source of normative order and point to how technological transformation creates a pluralistic legal universe that takes on new shapes under conditions of globalization. We promote a science and technology studies (STS)-inspired reworking of Legal Pluralism and suggest expanding the portfolio of legally effective regimes of ordering to include the normativity generated by materiality and technology. This normativity is amply demonstrated in the case studies included in the papers which make up this special section. We conclude that the inclusion of approaches developed in STS research helps analytically to overcome what we view as an incomplete law project, one unable to deal with the technicized lifeworlds of a global modernity. The contributions to this special section illustrate that technomaterial change cannot be understood without recognition of the role of normative impacts, and conversely, the legal pluriverse cannot be understood without recognition of the normative role of techno-material arrangements.

‘One (Confidentiality) Ring to Rule Them All’: Reflections on Confidential and Sensitive Information and the Open Justice Principle Following the Good Law Project and EveryDoctor Case

‘One (Confidentiality) Ring to Rule Them All’: Reflections on Confidential and Sensitive Information and the Open Justice Principle Following the Good Law Project and EveryDoctor Case