The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.     

Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.     

Governing after the Rights Revolution

In this paper I explore the relevance of neo-republican thinking for current debates in constitutional law. In particular, I am interested in how deliberative forms of law and democracy might be grounded in real-world institutional contexts. My thesis is that the neo-republican model, underpinned as it is by the values of equality, participation, and accountability, has both explanatory and critical potential when exploring the voices, spaces, and processes of constitutionalism. I test this argument with reference to constitutional change in Northern Ireland. It is evident that equality is the core value in the settlement reached but it is in the combination of values that the potential and tensions will arise in the future. The provisions of the Northern Ireland Act 1998 on equality are useful examples of how law might be shaped to include the voices of affected groups in the process of enforcing change in public administration. Law's role in this process is, however, more problematic than is often assumed. In this, and in other aspects of the settlement, there are lessons for others who are presently reflecting on the constitutional future in the new devolutionary contexts.     

Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case

This article examines styles of judicial reasoning under the Human Rights Act. It uses Lord Hoffmann's short speech in the Belmarsh Detainees case as a springboard from which to explore some important developments. The first part of the article examines the way in which some judges are 'turning to the local' by using historical examples as a means of countering powerful lines of argument run by the government in defence of its anti-terrorist policies. Later in the article, I turn to investigate the use of strategic decision-making by judges when applying the HRA. I conclude by asking whether the introduction of the HRA might lead to the development of a strange counterpoint between internationalist and nationalist rhetoric in judicial decision-making.     

Reaching out to the people? Assessing the relationship between parliament and citizens in Finland

Despite the Open Government (Parliament) initiatives and notions of a ‘democratic parliament’, the relationship between legislatures and citizens remains seriously under-researched. This article introduces a comprehensive analytical framework, combining the normative principles of visibility, accessibility, and permeability with practical indicators (parliament as public space, sharing of information, contact with MPs, media and digital engagement, transparency of legislative process, and actual participation in legislative decision-making) for assessing the public engagement of parliaments. Applying this framework to the Finnish Eduskunta, the authors show that despite recent reforms that have partially ‘opened up’ parliamentary proceedings and attempted to connect citizens to democratic process, there remains scope for reforms and innovations. The Eduskunta should embrace a more positive approach towards new forms of civic participation, particularly regarding how its influential committees operate. The findings reflect the tensions between, or the difficulties in reconciling, traditional forms of representative democracy with alternative and more direct channels of political participation.     

The front and back stages of carceral expansion marketing in Canada

This article examines how provincial and territorial government agencies and prison authorities in Canada promote new penal infrastructure initiatives. Through an analysis of press releases, websites, opening ceremonies and open houses to promote jail and prison construction projects, our analysis reveals discourses that are legitimating carceral expansion in the Canadian context including: the pursuit of public safety and institutional security; providing opportunities for rehabilitation and healing; addressing the legacies of colonization through the ‘indigenizing’ of imprisonment; generating economic stimulus through prison-related employment and other financial contributions; and the establishment of ‘environmentally-friendly’ prisons. Drawing from government records obtained using Access to Information and Freedom of Information requests, we also provide examples of how front stage messages communicated to the public are assembled by bureaucrats and marketing firms in the back stage of these punishment campaigns.     

Adopting (in)equality in the UK: the Equality Act 2010 and its impact on charities

This article considers the relationship between the Equality Act 2010 and the Charities Act 2011 (in Scotland, the Charities and Trustee Investment (Scotland) Act 2005) in the context of adoption by same-sex couples and the complex exceptions to the Equality Act that charities may be able to rely upon in order to continue to discriminate. It concludes that the law is confusing to the point of opacity, to the detriment of those seeking to exercise their rights and those called on to adjudicate conflicts.     

Is There a Duty to Legislate for Linguistic Minorities?

In April 2005, the Scottish Parliament passed the Gaelic Language (Scotland) Act 2005, requiring certain public bodies in Scotland to provide some services through the medium of Gaelic. This Act was modelled to a certain degree on similar legislation for Welsh, the Welsh Language Act 1993. Both Welsh and Gaelic, and to a lesser extent Irish in Northern Ireland, benefit from a range of other measures of legislative support. Many other languages are, however, spoken in the United Kingdom, and their speakers have needs and expectations. In this article, the extent to which a state is obliged to legislate for these is assessed. Fundamental principles such as the right to freedom from discrimination, equal protection of the law, substantive equality, and the protection and promotion of cultural and linguistic diversity may argue for legislative intervention and support, and the provision of such support to linguistic minorities must itself be non-discriminatory.     

Protection, Parity, or Promotion: Public Attitudes to Cohabitation and the Purposes of Legal Reform

Cohabitation law reform may be informed by different purposes. Three are considered in this paper: protection of parties at risk when relationships break down, parity of treatment between different forms of partnership, and the promotion of particular family forms. These are considered in relation to the Family Law (Scotland) Act 2006 in the context of recent evidence about public attitudes towards cohabitation. Public attitudes and the approach adopted in the 2006 Act are juxtaposed, raising questions about the alignment of public attitudes and the direction of law reform on cohabitation.     

Pragmatic Discourse and Gender Inequality in China

Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging “pragmatic discourse,” deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation.     

Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law

This article explores some issues arising when updating familylaw to keep pace with changes in family practices and values,in particular with changing patterns of parenting. It considersthe extension of parental rights and responsibilities beyondthe conventional boundaries of family law – to unmarriedfathers, step-parents and grandparents – with referenceto four different roles of family law. These roles are: protectingchildren, resolving disputes, regulating family life and promotingfamily norms. The article takes as an example of legal reformthe recently enacted Family Law (Scotland) Act 2006, which extendsparental rights and responsibilities to unmarried fathers whojointly register the child’s birth; but not to step-parentsor grandparents. The mixed messages that this reform conveysare considered in relation to the latest evidence of publicopinion in Scotland about parental obligations and the extentto which they align with public opinion on these issues.     

Radical Transactionalism: Legal Consciousness,Diverse Economies,and the Sharing Economy

This article proposes an original theoretical approach to the analysis of community‐level action for sustainability, focusing on its troubled relationship to the sharing economy. Through a conversation between scholarship on legal consciousness and diverse economies, it shows how struggles over transactional legality are a neglected site of activism for sustainability. Recognizing the diversity of economic life and forms of law illuminates what we call ‘radical transactionalism': the creative redeployment of legal techniques and practices relating to risk management, organizational form, and the allocation of contractual and property rights in order to further the purpose of internalizing social and ecological values into the heart of economic exchange. By viewing sharing‐economy initiatives ‘beyond Airbnb and Uber’ as sites of radical transactionalism, legal building blocks of property and capital can be reimagined and reconfigured, helping to construct a shared infrastructure for the exercise of collective agency in response to disadvantage sustained by law.     

The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re-use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.     

Communicating about child sexual abuse with the public: learning the lessons from public awareness campaigns

Despite numerous public awareness campaigns child sexual abuse (CSA) remains a significant global issue affecting millions of children. This suggests that such campaigns have had minimal impact, and the paucity of good quality empirical evaluation makes it difficult to establish what has worked and what has not. This article considers how different and evolving approaches to public awareness campaigning on CSA since the 1990s have influenced (or not) attitudinal and behavioural change. The article reviews a number of key initiatives from around the world and identifies common themes that can inform campaigning and prevention efforts. Recommendations for further research efforts, social problem framing, and targeting are offered. The article concludes by arguing that more recent multi-faceted campaigns which combine a range of messaging methods are more likely to turn public awareness campaigning into public action campaigning.     

Comparing public discourses in stem cell policy debates

Public policy debates surrounding stem cell research are becoming increasingly more complex as governance considerations move beyond the moral status of human embryos. This complexity is evident in the public discourses surrounding these debates globally. This article draws on the results of an analysis conducted on the media coverage of a recent stem cell policy episode in the United States to demonstrate the complexity of public discourses surrounding stem cell research and to reflect upon similar debates in Australia. Observations made from the public discourses in California are reframed within the Australian context to discuss ways in which future public policy debates surrounding stem cell research may be enriched.     

Seeking Sperm: Accounts of Lesbian Couples' Reproductive Decision-Making and Understandings of the Needs of the Child

Same-sex couples and their children have been the subject ofsignificant international attention over recent years, includingdebates about planned parenthood in the context of same-sexrelationships (Donovan, 2000; Dempsey, 2004; Luttichau, 2004;Vonk, 2004; Ryan-Flood, 2005). Drawing on a qualitative studyof lesbian parent families in the UK, this article contributesfurther to these debates through a discussion of respondents’accounts of their reproductive decision-making. I discuss thesocio-legal discourses around the legitimacy of the lesbianparent family created by donor insemination and examine howrespondents react to these discourses. I identify an overarchingpreoccupation within these accounts which is concerned withaddressing the needs of children. The dominant notions of howbest to meet children’s needs established in contemporaryUK family policy pose considerable tensions for the lesbianparent family. In seeking to resolve these tensions, parentsin my study reinterpret and develop different understandingsof how best to meet these needs. Their accounts reveal the complexityof the considerable efforts of families raising children infamily forms that fall outside the normative order to addressthe needs of the child, and the disjunctions between everydayunderstandings of children’s needs and those constructedthrough policy and family law.     

The age of risk: risk perception and determination following the Mental Health Act 2007

Reforms to the mental health law framework for England and Wales, which were introduced by the Mental Health Act 2007, are now having a practical effect on day-to-day mental health decision-making. The 2007 Act amends the Mental Health Act 1983, which governs the compulsory hospitalisation and treatment of people with mental disorder; and represents the culmination of a protracted and controversial reform process which has spanned much of the last 15 years. One of the key foci in the 2007 Act is the question of the risk posed by the patient, primarily to others; a result of both the social and political impetus behind the reform process and mounting public anxiety at the management of the mentally disordered. The new Act seeks, as with past legislation, to find the elusive balance between protecting and facilitating the individual's autonomy while also providing an effective framework for the wider public right to protection. The 2007 Act solidifies the dominance of risk by providing a legitimating framework in which risk can be assessed, monitored, and managed. This attitudinal change is demonstrated by the gradual and almost insidious adoption of risk terminology within the practical decision-making setting and the increasing use of risk assessment and management tools. This article is informed by an empirical study which examined individual professional and institutional responses to the mental health legislation in relation to risk. It examines whether the amended legislative framework amplifies risk as an increasingly dominant concern within decision-making. The paper then goes on to consider how decision-makers use risk to assist with their daily roles. Extrapolated from data obtained through the study, several models of risk determination are then discussed. Finally, some thought is given to whether the extension of the risk concept has the potential to become more fundamental within the organisation and legitimisation of mental health care.     

Making initiatives resonate: how can non-state initiatives advance national contributions under the UNFCCC?

The international governance landscape on climate change mitigation is increasingly complex across multiple governance levels. Climate change mitigation initiatives by non-state stakeholders can play an important role in governing global climate change. The article addresses the relationship between intergovernmental and transnational governance processes in global climate governance. Particularly, the article aims to complement existing research on the role of “orchestration” by and through the UNFCCC process by focusing on how successful transnational initiatives can resonate within the intergovernmental negotiation process in order to inspire more ambitious climate action also on the part of national governments. This issue is addressed by systematically analysing interdependencies between transnational and international governance. Building on a structurational regime model, the article develops a theory of change of how and through which structuration channels non-state initiatives can contribute to changing the politics of international climate policy, traces existing UNFCCC processes and the Paris Agreement with a view to identifying inroads for a more direct feedback from non-state initiatives and derives recommendations on how and under which agenda items positive experiences can resonate within the UNFCCC negotiation process.     

Bioterrorism meets privacy: an analysis of the Model State Emergency Health Powers Act and the HIPAA privacy rule

Ms. Bruce's paper analyzes the interplay between the Model State Emergency Health Powers Act and the HIPAA Privacy Rule. The article begins by examining specific relevant provisions of the Act and Rule. Next, it traces the history of public health law through the court system and then uses this foundation to discuss how the Model State Emergency Health Powers Act and the HIPAA Privacy Rule could co-exist, protecting Americans in the case of a bioterror attack, while being appropriately sensitive to the confidentiality of private health information.     

Public Procurement Law, Public Bodies, and the General Interest: Perspectives from Higher Education

Abstract This article examines the interaction of EC public procurement law with the legislative framework governing higher education in England and Wales. It focuses on the impact of this interaction on changing status of higher education institutions, organisations that are at the margins of the much‐discussed public–private divide in law. The Higher Education Act 2004 is viewed as a driver of potential change in status, and a distinction is drawn between mechanisms which appear to support the introduction of change and those that instead introduce fluctuation and lead to concerns for legal certainty at the margins of public law. The study thus also has wider relevance where public‐sector reform is premised upon organisational forms with hybrid or ambiguous status.