Laws | April 2023 - Browse Articles

16 pages, 326 KiB

Open AccessArticle

When Criminals Abuse the Blockchain: Establishing Personal Jurisdiction in a Decentralised Environment

by Casey Watters

Laws 2023, 12(2), 33; https://doi.org/10.3390/laws12020033 - 15 Apr 2023

Cited by 7 | Viewed by 4130

In August of 2022, the United States Department of Treasury sanctioned the virtual currency mixer Tornado Cash, an open-source and fully decentralised piece of software running on the Ethereum blockchain, subsequently leading to the arrest of one of its developers in the Netherlands. [...] Read more.

In August of 2022, the United States Department of Treasury sanctioned the virtual currency mixer Tornado Cash, an open-source and fully decentralised piece of software running on the Ethereum blockchain, subsequently leading to the arrest of one of its developers in the Netherlands. Not only was this the first time the Office of Foreign Assets Control (OFAC) extended its authority to sanction a foreign ‘person’ to software, but the decentralised nature of the software and global usage highlight the challenge of establishing jurisdiction over decentralised software and its global user base. The government claims jurisdiction over citizens, residents, and any assets that pass through the country’s territory. As a global financial center with most large tech companies, this often facilitates the establishment of jurisdiction over global conduct that passes through US servers. However, decentralised programs on blockchains with nodes located around the world challenge this traditional approach as either nearly all countries can claim jurisdiction over users, subjecting users to criminal laws in countries with which they have no true interaction, or they limit jurisdiction, thereby risking abuse by bad actors. This article takes a comparative approach to examine the challenges to establishing criminal jurisdiction on cryptocurrency-related crimes. Full article

(This article belongs to the Special Issue Criminal Liability and Global Compliance)

12 pages, 205 KiB

Open AccessCommentary

New Horizons or Business as Usual? New Zealand’s Medico-Legal Response to Digital Harm

by Olivia Kelly

Laws 2023, 12(2), 32; https://doi.org/10.3390/laws12020032 - 24 Mar 2023

Viewed by 1231

Abstract

A socio-legal commentary, this article examines the emerging issue of digital harm in New Zealand’s health settings. There are recent cases, and an increasing number of them, demonstrating the medico-legal response to various forms of digital harm. Of these, several representative cases are [...] Read more.

A socio-legal commentary, this article examines the emerging issue of digital harm in New Zealand’s health settings. There are recent cases, and an increasing number of them, demonstrating the medico-legal response to various forms of digital harm. Of these, several representative cases are considered in order to identify features of digital harm within the health context. The article questions whether this is a new type of harm, enabled by the creation of new technologies, or simply a different manifestation of conventional unprofessional or unethical behaviour. The article considers whether the existing medico-legal framework can appropriately respond to this harm and whether new legal or policy tools are required. The cases suggest that the rights and disciplinary systems in place can adequately deal with digital harm within their existing scopes, particularly when individuals have been harmed. However, gaps in the legal framework are identified, with particular reference to the actions of unregistered providers and harm to professions. Further, a future challenge for the system may be the response to COVID-19 vaccine denial and misinformation. As the legal response to digital harm in the health context is a relatively unexamined area of research, this work may guide future research. Full article

(This article belongs to the Section Health Law Issues)

13 pages, 503 KiB

Open AccessEssay

Policy and Legal Implications for Working with Unaccompanied Immigrant Children in Foster Care in the United States

by Kerri Evans

Laws 2023, 12(2), 31; https://doi.org/10.3390/laws12020031 - 20 Mar 2023

Cited by 1 | Viewed by 3255

Abstract

Unaccompanied immigrant children arrive in the US having fled deteriorating conditions and human rights violations in their home countries. Despite the large numbers of unaccompanied children, there is a lack of research on outcomes for unaccompanied children in the US and particularly for [...] Read more.

Unaccompanied immigrant children arrive in the US having fled deteriorating conditions and human rights violations in their home countries. Despite the large numbers of unaccompanied children, there is a lack of research on outcomes for unaccompanied children in the US and particularly for those in the Office of Refugee Resettlement’s (ORR) Long Term Foster Care (LTFC) program. This manuscript begins with a review of the existing laws that influence unaccompanied children (UC) served through the ORR’s LTFC program and a review of the current research on UC in foster care in the US. Notably, this manuscript also visualizes the numbers of UC that have arrived in the US since the early 2000s. These are used to provide a synthesis of recommendations for policy and practice with unaccompanied children. Full article

(This article belongs to the Special Issue Protecting the Rights of Children in Migration)

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15 pages, 293 KiB

Open AccessArticle

“Alleged Disabilities”: The Evolving Tactics of Child Protection in a Disability Rights Environment

by Hanna Björg Sigurjónsdóttir and James Gordon Rice

Laws 2023, 12(2), 30; https://doi.org/10.3390/laws12020030 - 19 Mar 2023

Cited by 1 | Viewed by 1489

Abstract

This contribution reports on a child protection case concerning the removal of a child from the custody of a parent with intellectual and developmental disabilities (IDD) in Iceland. Employing a mix of document analysis and interviewing, the results demonstrated two key themes forming [...] Read more.

This contribution reports on a child protection case concerning the removal of a child from the custody of a parent with intellectual and developmental disabilities (IDD) in Iceland. Employing a mix of document analysis and interviewing, the results demonstrated two key themes forming the analysis: One is the aura of professionalism. A careful examination of the working methods reveals a continuation of the poor practices typical of the past, despite the claims made that specialised support for persons with disabilities has been tried and was not successful. The second analytical theme is alleged disabilities. This case provided evidence of a previously unseen tactic, to the best of our knowledge, by which a parent’s disability status was called into question. The argument offered herein is that this was pursued to sidestep the protections afforded to disabled parents under Icelandic law in recent years. We conclude by arguing that the combination of a heighted awareness of these legal protections and a greater scrutiny as to how these cases are worked appears to have led to a series of evolving tactics that are employed against disabled parents in an enhanced disability rights environment. Full article

(This article belongs to the Section Human Rights Issues)

13 pages, 283 KiB

Open AccessArticle

Colombian Hippos and Species Management: Exploring the Legal Case Surrounding the Management and Control of the Colombian Hippos from a Species Justice Perspective

by Elliot Doornbos

Laws 2023, 12(2), 29; https://doi.org/10.3390/laws12020029 - 16 Mar 2023

Cited by 1 | Viewed by 3559

Abstract

Colombian hippopotamus populations are increasing against the backdrop of general species decline. In addition to wider calls for further protection, this pocket population is considered an invasive species and is subject to ongoing legal discussions about how they should be controlled and managed. [...] Read more.

Colombian hippopotamus populations are increasing against the backdrop of general species decline. In addition to wider calls for further protection, this pocket population is considered an invasive species and is subject to ongoing legal discussions about how they should be controlled and managed. These proceedings currently consider two options: whether the hippopotamus population needs to experience yearly culls or to use a fertility management program. This article explores whether species justice has a place within the control of non-native species via this case study of the Colombian hippo legal proceedings. When reviewing this case, neither euthanasia nor fertility control are fully in the interests of the species; however, fertility control is more in line with their interests. The conclusion considers whether it is possible to recognise the interests of wildlife within species management and how a shift towards the interests of species and species justice at minimum could provide more dignified and harmless methods of species control as well as find alternative solutions which are more in the interest of the majority of parties. Full article

(This article belongs to the Special Issue Critical Perspectives on Wildlife and Environmental Law and Its Enforcement)

26 pages, 363 KiB

Open AccessArticle

What Are Restorative Justice Services Recording? Qualitative Analysis of Six Restorative Justice Reporting Templates for Offices of the Police and Crime Commissioner in England

by Benjamin M. Fisk

Laws 2023, 12(2), 28; https://doi.org/10.3390/laws12020028 - 13 Mar 2023

Viewed by 2569

Abstract

This paper is a qualitative documentary analysis of six restorative justice reporting templates used by the Offices of the Police and Crime Commissioner in England for collecting restorative justice service data. Findings identify differences in the following areas: general presentation and format of [...] Read more.

This paper is a qualitative documentary analysis of six restorative justice reporting templates used by the Offices of the Police and Crime Commissioner in England for collecting restorative justice service data. Findings identify differences in the following areas: general presentation and format of templates; types of data recorded; areas of interest; definitions and use of descriptive language; methods and timing for counting data; and interpretation of restorative justice processes and outcomes. Conclusions highlight the need to standardise definitions and methods, outlining potential pitfalls when using data to draw further conclusions when equivalency is problematic, and further research avenues that could illuminate the use of data to evidence effectiveness, efficiency, impact and success. Full article

(This article belongs to the Special Issue New Frontiers in Restorative Justice and Restorative Practice: Expanding ‘What Works’)

11 pages, 217 KiB

Open AccessArticle

Corporate Criminal Liability: An Overview of the Croatian Model after 20 Years of Practice

by Igor Vuletic

Laws 2023, 12(2), 27; https://doi.org/10.3390/laws12020027 - 10 Mar 2023

Cited by 1 | Viewed by 1611

Abstract

The Croatian legislators introduced the concept of criminal liability for legal entities already in 2003 with the adoption of the Law on Criminal Liability of Legal Entities. Influenced by the writing of esteemed domestic scholars, and inspired by French law, the legislators opted [...] Read more.

The Croatian legislators introduced the concept of criminal liability for legal entities already in 2003 with the adoption of the Law on Criminal Liability of Legal Entities. Influenced by the writing of esteemed domestic scholars, and inspired by French law, the legislators opted for a system linking the liability of corporations to the liability of the responsible person. There were very few cases in practice during the first years of its application, and the situation changed after the first prominent indictment of this type against the ruling political party for economic crimes. Since then, the legislation has been amended several times and a significant body of jurisprudence has developed. In the first part of this paper, I will describe the chronology of the development and formation of the Croatian legislative model of corporate criminal liability. The second part will analyze 31 available final court judgments, which will be the basis for the conclusion about the issues in the practical application of the legislative model and, more generally, the phenomenon of criminal offenses committed by legal entities in Croatia. Based on this analysis, I will indicate the potential deficiencies of such a concept. In the context of future development, special attention will be given to the problem of economic crimes committed by AI corporate systems. Full article

(This article belongs to the Special Issue Criminal Liability and Global Compliance)

27 pages, 310 KiB

Open AccessArticle

Leading Gillick Astray? An Analysis of the Law of Consent Relevant to Trans and Gender Diverse Minors and the Commencement of Gender-Affirming Hormone Treatment

by Malcolm K. Smith

Laws 2023, 12(2), 26; https://doi.org/10.3390/laws12020026 - 10 Mar 2023

Cited by 1 | Viewed by 2570

Abstract

This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of [...] Read more.

This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of Gillick competency is well recognised in law, the Australian legal developments that apply Gillick to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has diverged down a path that does not align with the original reasoning in Gillick, nor its contemporary interpretation. I outline the reasoning in Gillick so that the foundational principles are considered before discussing how Gillick has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how Gillick should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment. Full article

(This article belongs to the Special Issue Law and Children’s Decision-Making)

27 pages, 387 KiB

Open AccessArticle

Cathedral of Sts. Vitus, Wenceslas, and Adalbert—The Melting Pot of Czech Religious, National, and State Identity and Its Legal Status

by Ondřej Frinta and Dita Frintová

Laws 2023, 12(2), 25; https://doi.org/10.3390/laws12020025 - 07 Mar 2023

Viewed by 1554

Abstract

The article first focuses on the significance of the Cathedral of Sts. Vitus, Wenceslas, and Adalbert to the Czech religious, national, and state identity. The importance of the cathedral is given primarily by its location (Prague Castle), as well as by the thinking [...] Read more.

The article first focuses on the significance of the Cathedral of Sts. Vitus, Wenceslas, and Adalbert to the Czech religious, national, and state identity. The importance of the cathedral is given primarily by its location (Prague Castle), as well as by the thinking of its founder, Charles IV, about the foundations of Czech statehood. On the basis of these findings, the significance and symbolism of the cathedral for the present can be understood. Following this, the legal status of the cathedral, which was the subject of the so-called “cathedral dispute” in its modern history, is examined. The current legal status of the cathedral is the result of an amicable solution to this dispute and the subsequent application of the right of superficies in Czech private law. Full article

(This article belongs to the Special Issue Law and Cultural Heritage)

15 pages, 235 KiB

Open AccessArticle

Morality, Voluntary Laws, and State Neutrality

by Yitzhak Benbaji

Laws 2023, 12(2), 24; https://doi.org/10.3390/laws12020024 - 06 Mar 2023

Viewed by 1374

Abstract

Kantian political philosophies stress that a state ought to be “neutral” (Rawls), “minimal” (Nozick), or “public” (Ripstein’s Kant), as part of its duty to respect its citizens’ freedom to pursue whatever ends these citizens find valuable. States are under duty merely to secure [...] Read more.

Kantian political philosophies stress that a state ought to be “neutral” (Rawls), “minimal” (Nozick), or “public” (Ripstein’s Kant), as part of its duty to respect its citizens’ freedom to pursue whatever ends these citizens find valuable. States are under duty merely to secure citizens’ independence from each other and from the state. In contrast, Kantian morality contends that individuals are subject to a duty to pursue certain “obligatory” ends, viz., ends that emerge from the intrinsic value of personhood and autonomy. In some cases, hindering one’s freedom is necessary for promoting these ends. This essay describes circumstances in which a legal right to interfere with one’s property and body in promoting obligatory ends is justified, even though such a right compromises states’ neutrality. This description sheds a new light on the relation between the optimal legal system (“Right”) and morality (“Virtue”) and between justice and truth. Full article

29 pages, 451 KiB

Open AccessArticle

Transnational Religious Practices as a UNESCO Intangible Cultural Heritage: The Complex Case of the Traditional Latin Mass

by Peter Kwasniewski, Izabella Parowicz, Joseph Shaw and Piotr Stec

Laws 2023, 12(2), 23; https://doi.org/10.3390/laws12020023 - 02 Mar 2023

Cited by 1 | Viewed by 5101

Abstract

The 2003 UNESCO Convention definition of intangible cultural heritage (ICH) covers religious practices and rites, as can be seen from normative descriptions and dozens of actual examples, many of which are Catholic religious traditions. The Traditional Latin Mass (TLM), practiced in one form [...] Read more.

The 2003 UNESCO Convention definition of intangible cultural heritage (ICH) covers religious practices and rites, as can be seen from normative descriptions and dozens of actual examples, many of which are Catholic religious traditions. The Traditional Latin Mass (TLM), practiced in one form or another for over 1500 years by an ever-increasing number of peoples and nations and in possession of a common stable set of rules, meets the UNESCO criteria for listing as ICH; in fact, it is arguably the best possible example. It is also a complicated one. After the Catholic Church’s liturgical reform in the 1960s and 1970s, new rites were introduced and the old rites were officially abandoned; nevertheless, a minority of clergy and laity continued to celebrate the TLM, and, over time, the legitimacy of their attachment to it was recognised by several popes, who also spoke regularly of the great value of the Church’s cultural and artistic patrimony and recommended that it remained joined with its religious origins. In contrast, the current pope, Francis, has recently become opposed to the continuation of the old rites. Be this as it may, it is quite possible that such a threatened but deeply appreciated international ICH as the TLM could be proposed for listing by several states that (unlike the Holy See) have signed the Convention for the Safeguarding of the Intangible Cultural Heritage, to give it a recognition appropriate to its immense historical and present-day cultural value. Full article

(This article belongs to the Special Issue Law and Cultural Heritage)

14 pages, 252 KiB

Open AccessArticle

Case Analysis on the CAS Ad Hoc Division Decisions for the 2022 Beijing Winter Olympics

by Wenjun Yan

Laws 2023, 12(2), 22; https://doi.org/10.3390/laws12020022 - 02 Mar 2023

Viewed by 1647

Abstract

Whether it is the Summer Olympics or the Winter Olympics, in order to resolve potential sports disputes, the Court of Arbitration for Sport (CAS) sets up a special ad hoc tribunal in the host city of the Olympic Games. Although CAS ad hoc [...] Read more.

Whether it is the Summer Olympics or the Winter Olympics, in order to resolve potential sports disputes, the Court of Arbitration for Sport (CAS) sets up a special ad hoc tribunal in the host city of the Olympic Games. Although CAS ad hoc rules have many similarities with ordinary procedures, they are different in terms of the legal basis, legal remedies, and certain procedural rules. During the Beijing 2022 Winter Olympics (Beijing 2022), the CAS Ad Hoc Division and the CAS Anti-Doping Division heard a total of seven cases. These cases involve issues such as provisional suspension of games, protection of minors, unreasonable delays in test results, cancellation of award ceremonies, and the timing of disputes. the CAS Ad Hoc Division decisions on the above issues can be regarded as the latest developments in the application of international sports arbitration rules. Full article

19 pages, 334 KiB

Open AccessArticle

‘We Got Lucky with the Judge’: Access to Justice for Disabled Women in Iceland

by Eliona Gjecaj, Anna Lawson, Rannveig Traustadóttir and James Gordon Rice

Laws 2023, 12(2), 21; https://doi.org/10.3390/laws12020021 - 23 Feb 2023

Cited by 1 | Viewed by 2382

Abstract

In this paper we aim to make a valuable contribution to the surprisingly limited body of research on access to justice for disabled women who have been subjected to violence. Using an interdisciplinary sociolegal approach, this paper carries out an empirical qualitative study [...] Read more.

In this paper we aim to make a valuable contribution to the surprisingly limited body of research on access to justice for disabled women who have been subjected to violence. Using an interdisciplinary sociolegal approach, this paper carries out an empirical qualitative study of one Icelandic court case and draws on this to provide a critical analysis of access to justice issues for disabled women who have been subjected to gender-based violence. Much about this case suggests that it is a positive example of justice being accessed, and we identify a number of features of the case as particularly significant in this regard. We reflect on how these positive aspects of the case can inform initiatives to enhance access to justice for disabled women and highlight ways in which Icelandic justice processes could more firmly embed the international human rights standards set out in the UN Convention on the Rights of Persons with Disabilities. Full article

(This article belongs to the Special Issue Understanding and Overcoming Barriers to Access to Justice in the Modern Era)

15 pages, 342 KiB

Open AccessArticle

Criminal Compliance Program as a Tool for Criminal Liability Exculpation of Legal Persons in the Czech Republic

by Pavel Kotlán, Miroslav Ondrúš, Alena Kozlová, Igor Kotlán, Pavel Petr and Radim Kalabis

Laws 2023, 12(2), 20; https://doi.org/10.3390/laws12020020 - 23 Feb 2023

Cited by 2 | Viewed by 2190

Abstract

Criminal liability of legal entities has gained an inalienable place in the system of legal liability in most European jurisdictions, including the Czech Republic. Departing from the premise that it is a suitable supplement to the liability of a legal entity in the [...] Read more.

Criminal liability of legal entities has gained an inalienable place in the system of legal liability in most European jurisdictions, including the Czech Republic. Departing from the premise that it is a suitable supplement to the liability of a legal entity in the event of serious unlawful acts of natural persons from which the legal entity benefits, this article aims to characterize the position and role of this form of liability in the Czech legal system. Essentially, however, it seeks to determine under which circumstances it is possible for legal entities to be relieved of liability using an exculpatory clause. Based on a case study of the Czech Republic, it illustrates the added value of criminal compliance programs, which, if properly set up and implemented in practice and complemented by prevention, detection and response measures, play a decisive role in establishing such criminal exculpation. The article further finds that rules pertaining to ethical codes of conduct are in fact ‘elevated’ to the level of legal rules through compliance programs. Compliance, one of the components of Corporate Social Responsibility, thus becomes an expression of a legal obligation, i.e., the obligation to properly manage and control the corporation, which has important legal implications. Full article

(This article belongs to the Special Issue Criminal Liability and Global Compliance)

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