Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

Correction to: Transnational law as a framework for law clinics

Jindal Global Law Review - A correction to this paper has been published: https://doi.org/10.1007/s41020-021-00137-6     

Transnational law as a framework for law clinics

Jindal Global Law Review - As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational...     

Security,privacy and freedom and the EU legal and policy framework for biometrics

The adoption of the Treaty of Lisbon and the granting to the Charter of Fundamental Rights of the same legal force as the Treaty has lent a new impulse to the consideration of fundamental human rights by the European Union (EU). The question remains, however, as to how this legal discourse, centred upon human rights, is actually shaping the EU regulatory framework in specific policy domains. The aim of this paper is to critically appraise the ways that the fundamental rights of security, privacy and freedom guaranteed by the Charter are being construed in the context of EU law and policy on biometrics, an ethically and morally sensitive security technology whose development and use are being actively promoted by the EU. We conclude that the interpretation of the pertinent rights, as well as their balancing, owes a great deal to the goals of EU policies for research and development, and under the auspices of Freedom, Security and Justice, shaped largely by political and economic considerations. These considerations then tend to prevail over ethically or morally-based legal claims.     

When crime prevention harms: a review of systematic reviews

Objectives

In a series of important scholarly works, Joan McCord made the case for the criminological community to take seriously harmful effects arising from individual-based crime prevention programs. Building on these works, two key questions are of central interest to this paper: What has been the state of research on harmful effects of these crime prevention programs since McCord’s works? And what are the theoretical, methodological, and programmatic characteristics of individual-based crime prevention programs with reported harmful effects?

Methods

This paper reports on the first empirical review of harmful effects of crime prevention programs, drawing upon 15 Campbell Collaboration systematic reviews. Altogether, 574 experimental and quasi-experimental studies (published and unpublished) with 645 independent effect sizes were reviewed.

Results

A total of 22 harmful effects from 22 unique studies of individual-based crime prevention programs were identified. Almost all of the studies have been reported since 1990, all but 2 were carried out in the United States, and two-thirds can be considered unpublished. The studies covered a wide range of interventions, from anti-bullying programs at schools, to second responder interventions involving police, to the Scared Straight program for juvenile delinquents, with more than half taking place in criminal justice settings. Boot camps and drug courts accounted for the largest share of studies with harmful effects.

Conclusions

Theory failure, implementation failure, and deviancy training were identified as the leading explanations for harmful effects of crime prevention programs, and they served as key anchors for a more focused look at implications for theory and policy. Also, the need for programs to be rigorously evaluated and monitored is evident, which will advance McCord’s call for attention to safety and efficacy.     

Neurobiological determinism: human freedom of choice and criminal responsibility

Several authors have argued that criminal behavior is generally caused by neurobiological deficits. This assumption not only questions the concept of free will and a person's responsibility for his or her own actions but also the principle of guilt in criminal law. When critically examining the current state of research, it becomes apparent that the results are not sufficient to support the existence of a universally valid neurobiological causality of criminal behavior. Moreover, the assumption of total neurobiological determination of human behavior and the impossibility of individual responsibility are characterized by both faulty empiricism and methodical misconceptions. The principle of relative determinism and the analysis of the offender's behavior at the time of the offense thus remain the central and cogent approach to the assessment of criminal responsibility.     

Academic freedom as insubordination: the legalisation of the academy

Australian academics, like their overseas counterparts, have, over recent years, felt an attenuation of the freedom traditionally ascribed to the academic. This attenuation has been accompanied by termination of employment, legal proceedings, and limitations placed on use of facilities or previously enjoyed freedoms. This paper considers the notion of academic freedom, and its traditional justification. It assesses the basis of that justification in the changing environment of higher education, and asserts that the need for academic freedom is not diminished by the commercialisation of the academy. Quite the reverse is the case. The paper considers the legal justifications for attacks on academic freedom, and the premises upon which they are based, with a view to arming the academic against such justifications.     

The Haddon matrix: applying an epidemiologic research tool as a framework for death investigation

The Haddon matrix is a research tool used by injury epidemiologists. Although this matrix has typically been used only in epidemiologic studies, it may serve as a framework to investigate the circumstances of traumatic deaths. This matrix consists of three rows representing time phases (before the injury incident, during the incident, and after the incident) and four columns representing the energy agent, characteristics of the deceased person, the environment, and the vehicle or vector resulting in the abnormal energy exchange, which are considered in the context of the three time phases. The authors present four cases illustrating how this epidemiologic tool can be useful during death investigations. Although the objectives for epidemiologic studies and medicolegal death investigations differ, this approach can be used to describe the circumstances surrounding an injury-related death.     

What a difference difference makes: gendered harms and judicial diversity

Taking the UK Ministry of Justice's ongoing quest to ensure a more diverse judiciary as its starting point and backdrop, this paper establishes the House of Lords' decision in Secretary of State for the Home Department v. K (FC); Fornah (FC) v. Secretary of State for the Home Department [2006] as a lens through which to explore the ‘difference’ of the woman judge and, in particular, the developing jurisprudence of Baroness Hale—the first (and only) female law lord in the UK. It argues that Baroness Hale's candid recognition and articulation of the gendered nature of the experiences and violence in Fornah's story reveals not only the difference difference (in whatever form) might make to understandings of the judge, judging and justice but also the importance of recognising the transformative potential of judicial diversity to create a space in which difference is celebrated and valued on its own terms, a place where difference can truly make a difference.     

State crimes and state harms: a tale of two definitional frameworks

Criminologists have long debated the issue of how to define crime, and hence, the scope of criminological inquiry. For years, some critical criminologists have argued for expanded definitions of crime that include harmful behaviors of the state that may not be officially defined as criminal. Other critical criminologists have argued that existing legal frameworks may be used to study varieties of state crime, and that defining the harmful actions of the state as criminal is important to help mobilize public support for their control. In this paper, we first trace the historical development of these two perspectives, and then offer a tentative solution to the seeming tension between these two perspectives.     

The search for truth and freedom: ethical issues surrounding human cloning and stem cell research

The reality of cloning and stem cell research has provoked wonder, fear and anger. These developments have the potential fundamentally to alter humanity. But how well informed is the range of views being expressed? Is progress being threatened by understandable but uninformed fears? Or are scientists rushing toward an ethical abyss, so concerned with what they can do that they never stop to ask what they should do? This article identifies some of the fears and hopes surrounding cloning and stem cell research. It aims to provoke ethical debate in evaluating such research.     

The case for regulating collaborative reproduction: a children's rights perspective

There is little regulation of collaborative reproduction--the use of the eggs, sperm, or embryos of a third party to create a child biologically unrelated to at least one intending parent. This Article argues that the dearth of regulation should be assessed from a children's rights perspective and accordingly adjusted. After examining the effects of the experimental reproductive technologies, it concludes that traditional family law preferences and policies are undercut by the deliberate creation of collaboratively reproduced children. The lack of regulation might stem from constitutional protection afforded parents in the right of privacy and substantive due process cases. The author, however, contends that collaborative reproduction implicates the rights of children and requires a separate balancing of rights not contemplated in other cases. Collaborative reproduction also requires regulation because of its spill over effects on the acceptability of cloning. The Article concludes by offering several possible regulatory responses to the problems posed by collaborative reproduction.     

Concussions and youth football: using a public health law framework to head off a potential public health crisis

Concussion from sport is increasingly recognized as a public health priority. In response, all states and the District of Columbia have enacted youth concussion legislation. This paper first examines key developments in concussion-related policy and legislation and then uses the findings from recent scientific studies to highlight the need to incorporate evolving scientific evidence into concussion legislation in order to better protect youth and adolescent athletes. Next, the paper discusses the framework of empirical health law research and why it should be applied in the case of concussion legislation. Finally, this paper argues that empirical health law research should be considered in any decision about whether legislation can help improve the health and safety of young players, a particularly vulnerable population whose unique needs have not yet been adequately addressed.     

Protection motivation theory as a theoretical framework for understanding the use of protective measures

The use of defensive measures can be a double-edged sword: it can provide the means to protect people and property from potential criminal victimization, but can also be a costly and possibly unnecessary endeavor. However, research examining the factors contributing to the decision whether or not to engage in protective measures is often limited in both quantity and scope. In this article, we propose a theoretical framework for understanding the use of protective measures in response to criminal victimization threats based on Ronald Rogers’ protection motivation theory. Our discussion details Rogers’ theory, suggests variables and measures appropriate for the context of criminal victimization and protective responses, and provides guidance on testing and model adaptation issues. We hope that this will encourage further model development and testing to improve the understanding of individual protective behavior in response to crime or the threat of crime.     

Parliaments as changing institutions and as agents of regime change: Evolving perspectives and a new research framework

In this review, the scholarly literature dealing with the role and dynamics of parliaments as institutions that undergo change within themselves and that support and enhance change in the larger regime is considered. One central theory of scholarship dealing with parliamentary change, that of legislative institutionalisation, is examined and found wanting as an explanation of change in mature parliamentary institutions. In discussion of analyses of five instances of parliamentary change, it is shown that parliaments can change in a wide variety of contexts and conditions ‐ including such well‐established legislatures as the United States Congress after over 200 years of evolution. There is no ‘end of history’ in parliamentary change, only the possibility of sometimes startling change from what has gone before. The examination of five instances of parliamentary change also supports the thesis that parliamentary institutional change, and regime change enhanced by parliamentary change, are inexorably linked. Finally, a tentative research framework is evolved from the above analyses and proposed as a means for considering the role of parliaments as changing institutions and as institutions enhancing systemic change.     

Knitted fractures of the laryngopharynx framework as a medico-legal matter

The article presents the analysis of knitted trauma to the hyoid bone and laryngeal cartilages, revealed while searching for fresh fractures of the laryngopharynx skeleton for medico-legal purposes. Neck organocomplexes (n = 440) were completely prepared after fixation in formalin. Old injuries were found in 17.3% of cases, and in 3.2% of cases two elements of the complex were formerly broken. More often there was consolidated trauma to the thyroid (11.4% of cases) and cricoid cartilages (7.3%) and, rarely, to the hyoid bone (1.6%) and cervical part of the trachea (0.2%). These injuries occurred twice as often in men (20.3% of cases) than in women (P < 0.01). Substantiated conclusions are: (1) people of working age are most prone to neck trauma; and (2) from the 1960s the percentage of such traumas in the St. Petersburg region has grown due to urbanization. This article presents data on the localization and morphology of the injuries, as well as a review of symptoms and the course of blunt neck trauma. Despite the difficulties associated with the complete regeneration of injured tissues, forensic pathologists can obtain certain information which police officials may be interested in.