Search Results

Legal policy

F. A. R. Bennion

in Understanding Common Law Legislation: Drafting and Interpretation

A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal ... More

A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal policy consists of principles the judges consider the law must uphold, such as: that law should serve the public interest, that it should be fair and just, etc. Different elements of legal policy, for example the safeguarding of personal liberty and the need for state security, may conflict. On some aspects legal policy may change drastically over a period. The court ought not to enunciate a new head of policy where Parliament has demonstrated its willingness to intervene. It is a principle of legal policy that domestic law should conform to public international law. This has been given statutory effect in relation to the European Convention on Human Rights by the Human Rights Act 1998 s 3(1).Less

Off-the-Books Lobbying, Electioneering, and the Special Purpose Entities That Do It

RICHARD W. PAINTER

in Getting the Government America Deserves: How Ethics Reform Can Make a Difference

This chapter focuses on organizations other than lobbying firms and corporate in-house lobbyists that also engage in lobbying. These include advocacy groups, think tanks, public policy organizations, ... More

This chapter focuses on organizations other than lobbying firms and corporate in-house lobbyists that also engage in lobbying. These include advocacy groups, think tanks, public policy organizations, legal policy organizations, single-issue advocacy organizations, religious organizations, trade associations, and labor unions. The chapter then discusses the overall influence of these advocacy groups and other organizations.Less

Seeing Bias: Discrediting and Dismissing Accurate Attributions

Adam Benforado and Jon Hanson

in Ideology, Psychology, and Law

This chapter explores the way in which dispositionism maintains its dominance as an attributional framework despite failing to capture accurately the causes of human behavior. The answer lies in a ... More

This chapter explores the way in which dispositionism maintains its dominance as an attributional framework despite failing to capture accurately the causes of human behavior. The answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss generally more accurate situationist insights and their proponents. Without the operation of naïve cynicism, dispositionism would be far more vulnerable to challenge and change. Naïve cynicism is, thus, critically important to explaining how and why certain legal policies manage to carry the day. As a case study, the chapter considers the naïve cynical backlash against situationist accounts of the causes of prisoner abuses at Abu Ghraib, Guantanamo Bay, and other detentions centers.Less

Attributions and Ideologies: Two Divergent Visions of Human Behavior Behind Our Laws, Policies, and Theories

Adam Benforado and Jon Hanson

in Ideology, Psychology, and Law

This chapter describes a major rift extending across many important debates over our legal structures, policies, and theories of law. It argues that the divide is based, to a significant extent, on ... More

This chapter describes a major rift extending across many important debates over our legal structures, policies, and theories of law. It argues that the divide is based, to a significant extent, on contrasting attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people’s dispositions (that is, stable personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us (that is, cognitive proclivities and structures and external environmental forces). As this chapter summarizes, research on the underlying motives and conceptual metaphors behind conservatism and liberalism help explain the vital connections between those attributional styles and political ideologies.Less

Administrative Agreements

Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk

in Administrative Law and Policy of the European Union

Within European administrative law, single-case implementation of European Union legal policy can occur not just through unilateral measures, but also by means of agreements or contracts concluded by ... More

Within European administrative law, single-case implementation of European Union legal policy can occur not just through unilateral measures, but also by means of agreements or contracts concluded by EU or Member State authorities. In the EU, administrative law agreements have always featured as a commonly used form of act. Europe's developing integrated administration has increased the need for, and the sophistication of, the use of such measures. Despite their substantial relevance in practice for the implementation of EU policy and law, however, agreements as form of action in EU administrative law have so far remained largely unexplored. This chapter focuses on their use in the context of the regulation of single-case situations.Less

Conceptualizing Climate Change-Related Movement

Jane Mcadam

in Climate Change, Forced Migration, and International Law

There is now a considerable amount of literature about how the phenomenon of the climate change-related movement should be ‘conceptualized’ — that is, how it should be understood as an area of ... More

There is now a considerable amount of literature about how the phenomenon of the climate change-related movement should be ‘conceptualized’ — that is, how it should be understood as an area of academic inquiry and a subject of legal and policy development. This chapter does not rehearse the debates on this issue, but rather synthesizes contemporary approaches and explain why the ‘lens’ through which the phenomenon is viewed can dramatically change the way it is perceived and regulated. Conceptualization is therefore key to presenting the ‘issue’ to be tackled, and devising appropriate policy responses to address it. The chapter draws on fieldwork undertaken in three countries which have become synonymous with the notion of climate change-related displacement in Kiribati, Tuvalu, and Bangladesh.Less

Rules of interpretation

F. A. R. Bennion

in Understanding Common Law Legislation: Drafting and Interpretation

The guides to legislative intention, otherwise known as interpretative criteria, are: (1) common law and statutory rules; (2) principles derived from legal policy; (3) presumptions based on the ... More

The guides to legislative intention, otherwise known as interpretative criteria, are: (1) common law and statutory rules; (2) principles derived from legal policy; (3) presumptions based on the nature of legislation; and (4) general linguistic canons applicable to any piece of English prose. Rules of statutory construction are those laid down at common law and those laid down by statute. The basic rule, laid down at common law, is that enactments shall be construed according to the general guides laid down by law; and that where these conflict there must be weighing and balancing the interpretative factors concerned. Rules laid down at common law also include: (1) regard must be had to the juridical nature of an enactment; (2) the plain meaning rule; (3) the commonsense construction rule. Statutory rules are laid down either by the Interpretation Act 1978 (applicable generally) or by an individual Act (for that Act only).Less

State Identity and Legal Policies

Congyan Cai

in The Rise of China and International Law: Taking Chinese Exceptionalism Seriously

This chapter aims to answer the following questions: How has China’s state identity changed since the nineteenth century when the Chinese empire began to be forced to engage with the Western world, ... More

This chapter aims to answer the following questions: How has China’s state identity changed since the nineteenth century when the Chinese empire began to be forced to engage with the Western world, especially since the founding of the PRC in 1949 when China had begun to embrace socialist ideology and regime at odds with those in the Western world? What is China in the twenty-first century? What implications does China’s identity have on its international legal policies? How does China respond to the conventional assumption of the relationship between state identity and behaviors? And how does China seek to reduce the potential dissonance between its new identity and behavior, as well as reassure other countries that are wary about the rise of China?Less

Conclusion: LGBT Parents Constructing Legality

Amanda K. Baumle and D’Lane R. Compton

in Legalizing LGBT Families: How the Law Shapes Parenthood

The authors conclude by examining their emergent theory, and the contributions that their study makes to studies of legal consciousness and to social and legal policy. They indicate that their ... More

The authors conclude by examining their emergent theory, and the contributions that their study makes to studies of legal consciousness and to social and legal policy. They indicate that their research reveals how LGBT individuals frame their access to the creation and maintenance of families; the legal, social, and geographic obstacles to those goals; and their responses and reactions to those obstacles. The authors find that individual factors such as demographics and familial desires; mediating factors such as social networks, legal actors, and organizations; and legal context all interact with cultural discourses about the law in order to shape LGBT parents’ legal consciousness. Their findings thus illustrate that there is no single experience of LGBT parents with regard to legality. Their legal consciousness as part of the parenting process is as varied and contextual as the legal and sociopolitical environments in which they reside.Less

Sim-pua under the Colonial Gaze: Gender, “Old Customs,” and the Law in Taiwan under Japanese Imperialism

Chen Chao-ju

in Gender and Law in the Japanese Imperium

This chapter examines tensions in Japanese colonial legal policy toward the widespread Taiwanese custom of sim-pua marriage, whereby a girl was adopted at a very young age and raised in the family of ... More

This chapter examines tensions in Japanese colonial legal policy toward the widespread Taiwanese custom of sim-pua marriage, whereby a girl was adopted at a very young age and raised in the family of her intended husband and then married in her teens to that adoptive brother. It contextualizes colonial policy toward this practice within the debate on whether the Japanese civil code should be extended to Taiwan. In the aftermath of the 1923 decision to continue to use customary law to rule on family matters, courts struggled to reconcile the “civilizing mission” that authorized Japanese colonial rule with the requirement to respect custom. Through the careful reading of cases, this chapter explores how sim-pua, their natal families, and adoptive brothers/would-be husbands used the colonial courts to assert their agency.Less

Water Management Institutions and Policies for India

M. Dinesh Kumar

in Managing Water in River Basins: Hydrology, Economics, and Institutions

This chapter focuses on the institution and policies for water management in India. It analyses data on sustainable water use index and explores the range of economic instruments and institutional ... More

This chapter focuses on the institution and policies for water management in India. It analyses data on sustainable water use index and explores the range of economic instruments and institutional options for managing water economies. It explains the legal, policy, and administrative measures for implementing the economic and market instruments and discusses the institutional framework for water management in a river basin, using the example of Sabarmati River Basin for greater clarity of the issues and approaches.Less

Three Case Studies

in An American Travesty: Legal Responses to Adolescent Sexual Offending

This chapter presents three case studies illustrating the extraordinary recent history of legal responses to problematic sexual activities of children and teens in the United States. It intends to ... More

This chapter presents three case studies illustrating the extraordinary recent history of legal responses to problematic sexual activities of children and teens in the United States. It intends to provide an introduction to that part of the legal system concerned with child and adolescent sexual misconduct and to some troublesome trends in legal policy. Like other states in recent years, Idaho passed legislation in 1998 establishing the Sexual Offender Registration, Notification, and Community Right-to-Know Act. The first section of this statute contains a set of legislative findings which rehearses the factual assumptions that are the premises on which the regulatory scheme is based. The Idaho offender registration findings assert that sexual offenders present a significant risk of re-offending and that providing public access to information about such offenders assists parents in the protection of their children.Less

Reform in Juvenile Court

in An American Travesty: Legal Responses to Adolescent Sexual Offending

This chapter aims to use the known facts about juvenile sex offending as the basis for proposing reforms in juvenile court policies toward sexual offenses and offenders, but it begins with a more ... More

This chapter aims to use the known facts about juvenile sex offending as the basis for proposing reforms in juvenile court policies toward sexual offenses and offenders, but it begins with a more typical academic ploy: a research agenda for filling gaps in the knowledge base about children and adolescents who commit sex offenses. The first section addresses three key issues that research must resolve in the near future, and the second section considers the basic principles and policies that are appropriate to responding to three different classes of sex offenders in the juvenile justice system. The chapter then explores a series of more detailed legal and policy questions that concern the juvenile sex offender.Less

Minimizing Harm from Minority Disproportion in American Juvenile Justice

Franklin E. Zimring

in Our Children, Their Children: Confronting Racial and Ethnic Differences in American Juvenile Justice

This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. A clear definition of goals and priorities is absolutely essential ... More

This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. A clear definition of goals and priorities is absolutely essential to intelligent policy planning. Reducing the hazards of juvenile court processing may be a better approach to protecting minority youths than just trying to reduce the proportion of juvenile court cases with minority defendants. The chapter presents the conceptual equipment necessary to assess the impact of legal policies on minority populations and discusses whether it is best to consider the minority concentrations in juvenile justice as a special problem in the juvenile justice system or as part of the generally higher risk exposures found in criminal justice and other state control systems. Harm reduction is proposed as the principal criterion by which policies designed to respond to minority disproportion should be judged.Less

A First Look at Judicial Specialization

in Specializing the Courts

This chapter introduces judicial specialization, and also considers the book's first question: The extent of judicial specialization in the United States. People assume that specialization is both ... More

This chapter introduces judicial specialization, and also considers the book's first question: The extent of judicial specialization in the United States. People assume that specialization is both inevitable and desirable, a source of benefits to the organizations. Judicial specialization is sufficient in extent to constitute a significant feature of the judiciary, one that merits the attention of people who seek to understand the courts. The extent of specialization in the courts and the growth in specialization make it an important phenomenon. Judicial specialization is best thought in terms of the link between individual judges and fields of legal policy. The chapter turns to the landscape of specialization in the federal and state court systems. A significant portion of the work of federal courts is handled by specialized bodies. Finally, an overview of the other chapters included in the book is given.Less

How Japanese Fan Fiction Beat the Lawyers

David S. Roh

in Illegal Literature: Toward a Disruptive Creativity

Chapter 2 shifts focus to underground writing communities that borrow from popular culture to influence canonicity. Roh compares American fan fiction and dojinshi to illustrate how a favorable or ... More

Chapter 2 shifts focus to underground writing communities that borrow from popular culture to influence canonicity. Roh compares American fan fiction and dojinshi to illustrate how a favorable or unfavorable infrastructure and legal climate detracts from or encourages fledgling creativity. Roh argues that a generous legal policy—rather than a protective one—may be of greater overall benefit. For example, the disparate reactions of American and Japanese content owners to amateur fiction illustrate how different policies affect industry development. Japanese publishers tacitly sanction dojinshi authors, which has resulted in a vibrant subindustry acting as free advertising for borrowed works. In contrast, their American counterparts generally disapprove of fan fiction, which limits the growth potential for both parties. The importance lies not with which party prevails but with the dialogic relationship that compels engagement and adaptation.Less

The Sex Offender in Juvenile Court

in An American Travesty: Legal Responses to Adolescent Sexual Offending

This chapter outlines the strategic objectives and assumptions of modern juvenile courts in delinquency cases, and measures these assumptions against the known facts about adolescent sex offending ... More

This chapter outlines the strategic objectives and assumptions of modern juvenile courts in delinquency cases, and measures these assumptions against the known facts about adolescent sex offending and offenders. The fundamental question for this analysis is whether the assumptions and objectives on the part of modern juvenile courts regarding delinquents generally are appropriate also for sex offenders who come under the court's jurisdiction. If so, then the most appropriate policy environment for such offenders is American juvenile courts, which are informed by the age-specific policies of police and probation officials, and correctional agencies that have grown around such courts. But if, on the other hand, a sharp difference is found between the juvenile sex offender and the juvenile burglar, adjustments in treatment modalities and goals must be made before specific policies are designed.Less

Numbers, scale and trends

Mervyn Murch

in Supporting Children When Parents Separate: Embedding a Crisis Intervention Approach within Family Justice, Education and Mental Health Policy

This chapter summarizes some key social and demographic statistics from England and Wales which illustrate the scale of the challenge which faces any governments should they wish to develop strategic ... More

This chapter summarizes some key social and demographic statistics from England and Wales which illustrate the scale of the challenge which faces any governments should they wish to develop strategic preventative social and legal policies to better support children and young people caught up in the critical family transitions following the breakdown of their parents' relationship. It begins with some preliminary observations which may not be immediately apparent from the bold figures. It then discusses fluctuating divorce rates and the increase in cohabitation, and statistical problems concerning the number of children involved in private law litigation involving contact and residence orders.Less

What gas and oil? The early days of the Irish regime (1957–75)

Amanda Slevin

in Gas, Oil and the Irish State: Understanding the Dynamics and Conflicts of Hydrocarbon Management

While Ireland in the mid 1950s was viewed by some indigenous geologists as a country with limited hydrocarbons, the visit of an Irish-American lawyer sparked hopes for potential oil and gas ... More

While Ireland in the mid 1950s was viewed by some indigenous geologists as a country with limited hydrocarbons, the visit of an Irish-American lawyer sparked hopes for potential oil and gas exploitation. This chapter documents the design of legal and policy frameworks to facilitate hydrocarbon exploration and production, highlighting how the Irish state implemented a licensing system (1959 Oil Agreement) which entailed the transfer of rights for all Ireland's onshore and offshore territory to one oil company, enabling the privatisation of produced resources in exchange for some fiscal returns. Providing an historical account of the early days of the Irish petroleum industry, this chapter makes a new contribution to knowledge on Irish state hydrocarbon management, contextualised with reference to occurrences in Irish political economy. Conditions internationally also impacted on Ireland and global trends in resource nationalisation in tandem with the discovery of Kinsale gas culminated in the 1975 licensing terms (Justin Keating's terms) which signified a fresh perspective on hydrocarbon management. Due to national and international forces, this ‘golden era’ would not last, as discussed in the next chapter.Less