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Article

Teaching restorative practices through games: an experiential and relational restorative pedagogy

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords restorative pedagogy, games, teaching, experiential learning
Authors Lindsey Pointer and Kathleen McGoey
AbstractAuthor's information

    This article argues for the use of games as an effective and dynamic way to teach restorative practices. Grounded in an understanding of restorative pedagogy, a paradigm of teaching in alignment with restorative values and principles, as well as experiential learning strategies, this article introduces games as a way for students to experience and more deeply understand restorative practices while building relationships and skills. Personal accounts of the authors about the impact of using games to teach restorative practices in their own communities are also included.


Lindsey Pointer
Lindsey Pointer is a PhD Candidate at Victoria University of Wellington and Creative Director of Aspen Restorative Consulting in Wellington, New Zealand.

Kathleen McGoey
Kathleen McGoey is the Executive Director of Longmont Community Justice Partnership, Longmont, USA.

Antony Pemberton
Antony Pemberton is Full Professor of Victimology and Director of the International Victimology Institute (INTERVICT), Tilburg University, Tilburg, The Netherlands.
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Introducing and theorising an in-prison restorative justice programme: the second-generation Sycamore Tree Project

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Sycamore Tree Project, in-prison restorative justice programming, human condition, liminality, narrative
Authors Jane Anderson
AbstractAuthor's information

    This article introduces an in-prison restorative justice programme: the second-generation Sycamore Tree Project (STP-2). The programme brings together crime victims and unrelated offenders in a prison setting to discuss and address the harm of crime to their lives. In the first part of the article, description is given to how STP-2 has evolved in Australia from a ‘faith-based’ programme to one that is restorative. In the second part, three anthropological theories are used to provide explanation and prediction of the transformative effects of in-prison restorative justice programming on prisoners as informed by STP-2. The prisoner-participant is viewed as a ‘person’ who, in liminal conditions, is afforded agency to create a meaningful narrative that is directed to revising how one is to associate with others in morally acceptable ways. The article concludes with a comparison between STP-1 and STP-2, and some proposals for research beyond this theoretical excursion.


Jane Anderson
Jane Anderson is Honorary Research Fellow, Anthropology and Sociology, Faculty of Arts, Humanities and Social Sciences, The University of Western Australia, Crawley, Australia. Contact author: jane.anderson@uwa.edu.au.
Article

Three Tiers, Exceedingly Persuasive Justifications and Undue Burdens

Searching for the Golden Mean in US Constitutional Law

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Equal protection, franchise, fundamental rights, intermediate scrutiny, rationality review, reproductive rights, right to vote, strict scrutiny, substantive due process, undue burden, US constitutional law
Authors Barry Sullivan
AbstractAuthor's information

    When government action is challenged on equal protection grounds in the US, conventional wisdom holds that the courts will analyse constitutionality under one of three standards of review: rational basis, intermediate scrutiny and strict scrutiny. In substantive due process cases, two standards are applied: rational basis and strict scrutiny. In fact, careful study shows that the levels of scrutiny are actually more plastic than conventional wisdom would suggest and have shifted over time. In addition, courts sometimes confuse matters by appearing to introduce new tests, as when Justice Ginsburg characterized the government’s burden in Virginia v. United States, 518 U.S. 515 (1996) in terms of “an exceedingly persuasive justification”. Finally, while the Court originally applied strict scrutiny review to reproductive rights in Roe v. Wade, 410 U.S. 113 (1973), the Court has subsequently applied an ‘undue burden’ test in that area. A similar trend can be seen in voting rights cases. While the Court long ago characterized the right to vote as “fundamental … because preservative of all rights”, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and the modern Court initially applied strict scrutiny to voting rights, the Court has now moved away from strict scrutiny, just as it has in the reproductive rights area. This erosion of constitutional protection for voting rights is the central concern of this article. The focus here is on the way these tests have evolved with respect to limitations on the right to vote. The article begins with a description of the three-tiered paradigm and then considers the US Supreme Court’s development of the ‘undue burden’ test as a substitute for the strict scrutiny standard in the reproductive rights jurisprudence. The article then considers the Court’s analogous move away from strict scrutiny in voting rights cases. That move is particularly troubling because overly deferential review may subvert democratic government by giving elected officials enormous power to frame electoral rules in a way that potentially games the system for their own benefit. Building on existing scholarship with respect to reproductive rights, this article suggests a possible way forward, one that may satisfy the Court’s concerns with the need for regulation of the electoral process while also providing the more robust protection needed to protect the right to participate meaningfully in the electoral process.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law. The author is grateful to Jeffrey W. Gordon, Pilar Mendez and Tara Russo for expert research assistance, to Julienne Grant, Loyola University Chicago School of Law Reference Librarian, for additional research assistance, and to Michael Kaufman, Alfred S. Konefsky, Juan Perea, H. Jefferson Powell, Henry Rose, and Winnifred Fallers Sullivan for many helpful comments on an earlier draft. The author also wishes to thank the Cooney & Conway Chair Fund and the Loyola University School of Law Faculty Research Fund. The usual dispensation applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

Journal European Journal of Law Reform, Issue 1 2018
Keywords devolution, informal jurisdiction, rule of law, disparate impacts, participatory problem-solving, intransitive law, legislative standardization
Authors Lorna Seitz
AbstractAuthor's information

    This article outlines an approach, derived from Ann and Robert Seidman’s Institutionalist Legislative Drafting Theory and Methodology (ILTAM), for drafting laws and developing implementing policies and programmes to realize legislative objectives and promote necessary behavioural change throughout a jurisdiction despite significant sub-jurisdictional socio-economic differences. ILTAM can serve as a powerful tool for catalysing the development of situationally appropriate programmes to initiate and sustain behavioural change in furtherance of legislative objectives. The article begins by discussing the movement towards legislative standardization, and its benefits and failings. It then introduces the concept of informal jurisdictions, and highlights modifications to ILTAM that improve the methodology’s efficacy in devising solutions that work in those jurisdictions. The article then describes the power of intransitive law as a mechanism for catalysing progress towards shared objectives in a manner that allows for localized approaches, promotes governmental responsiveness, brings innovation, and maximizes participatory governance. Lastly, it describes the importance that Ann and Robert Seidman placed on institutionalizing on-going monitoring, evaluation and learning processes; and describes how intransitive drafting techniques can focus implementation on motivating behavioural change while systematically identifying needed policy and law reforms in response to suboptimal legislative outcomes.


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.

Julia Morelli
Julia Morelli is President of the George Mason University Instructional Foundation, and the Executive Director of the Capitol Connection, a wireless communications company. She is also a mediator, facilitator and conflict coach.
Article

Negotiating Co-Authorship, Ethically and Successfully

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords negotiation, ethics, academia, mentorship, authorship
Authors Andrea Schneider and Rachel Gur-Arie PhD
AbstractAuthor's information

    Authorship is a feature of career success and is relevant for practically all health science fields. Yet negotiating co-authorship is one of the most difficult processes academics encounter. The stakes are high, issues can be complex, and negotiators’ motivations are often multifaceted. The tools presented in this article – preparation, relationship development, and communication – can be used to increase the likelihood of a successful negotiation. Through the use of a case study, this article illustrates how a typical junior colleague can negotiate with their mentor. Additionally, this article outlines various standards of co-authorship to ensure that published authorship reflects appropriate standards of the field. The goal is for academics to be able to negotiate not only effectively, but also ethically.


Andrea Schneider
Professor Andrea Kupfer Schneider is the Director of the Dispute Resolution Program, Marquette University Law School.

Rachel Gur-Arie PhD
Rachel Gur-Arie is a PhD candidate in Health Systems Management within the School of Public Health at Ben-Gurion University of the Negev in Be’er Sheva, Israel.

    The Israeli health system consists of approximately 200,000 employees in a variety of positions, such as: doctors, nurses, pharmacists, psychologies, physical therapists, lab workers, speech therapists, occupational therapists, dieticians, orderlies, administrators and housekeeping workers and many more. (Ministry of Health, 2016). The system has gone through long-lasting struggles, conflicts and crises initiated by power groups and various functional representations and unions. This article will focus on conflicts occurring between doctors, in their professional occupation, and the governmental ministries (Health and Treasury). In addition, it will examine the processes that encourage the occurrence of conflicts in the health system. Even though doctors do not represent the entire health system, it is important to emphasize that they are its beating heart. Their weight in the general health system is extremely high, much higher than their relative part therein.
    In addition, this article will examine a struggle by doctors to shorten their long shift hours, by exposing the root causes and the reasons that led to the struggle’s demise, without the achievement of their declared goals. This article will suggest that tools appropriate for a true resolution of conflicts in the health system should be tailored and specific to the complexity of the system (as in a delicate surgery), as opposed to more general tools such as mediation, and certain “copy-paste” tools used for conflict resolution in other disciplines.


Adi Niv-Yagoda
Dr. Adi Niv-Yagoda, Ph.D, LL.M, LL.B is an expert in medical law and health policy; Advocate and Lecturer at the School of Medicine and Faculty of Law, Tel Aviv University.
Article

Access_open Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’

Underlining the Difference between Pre-Emption and Prevention

Journal Erasmus Law Review, Issue 3 2016
Keywords Prevention, pre-crime, pre-emption, risk, outlaw motorcycle gangs
Authors Teun van Ruitenburg
AbstractAuthor's information

    Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.


Teun van Ruitenburg
Teun van Ruitenburg, MSc., is PhD Candidate at the Criminology Department of the Erasmus University Rotterdam.
Article

Access_open The Right to Mental Health in the Digital Era

Journal Erasmus Law Review, Issue 3 2016
Keywords E-health, e-mental health, right to health, right to mental health
Authors Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj
AbstractAuthor's information

    People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.


Fatemeh Kokabisaghi
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Iris Bakx
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Blerta Zenelaj
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.
Article

Managing the EU Acquis

Journal European Journal of Law Reform, Issue 3 2016
Keywords EU, legislation, accessibility, updating
Authors William Robinson
AbstractAuthor's information

    EU legislation plays a key role in filling in the gaps in the framework created by the EU Treaties. The body of EU legislation known as the acquis has grown piecemeal over 60 years to a confused and confusing patchwork of over 100,000 pages. There is an urgent need for a more coherent approach to updating, condensing and revising that legislation to ensure that it is readily accessible. New mechanisms should be established for those tasks, or else the existing mechanisms should be enhanced and exploited to the full.


William Robinson
Associate Research Fellow, Institute of Advanced Legal Studies, London.
Article

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Authors Raf Geenens
AbstractAuthor's information

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.

Ethan Katsh
Ethan Katsh is Director and Co-Founder of the National Center for Technology and Dispute Resolution, and Professor Emeritus of Legal Studies, University of Massachusetts.

Orna Rabinovich-Einy
Orna Rabinovich-Einy is Assistant Professor at the Faculty of Law of the University of Haifa, Israel.
Article

Access_open The Justification of Basic Rights

A Response to Forst

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Justification, Kant
Authors Glen Newey
AbstractAuthor's information

    This paper responds to Rainer Forst’s article ‘The Justification of Basic Rights’. I argue that Forst's main thesis is difficult to pin down, partly because it is formulated in significantly distinct ways at numerous points. I offer a possible formulation of the argument but note that this encapsulates a fallacy; I further argue that his inference of the basic rights seems to imply an over-moralisation of social life and that his argument does not distinguish rights with discretionary and non-discretionary content. Then I query Forst’s claim that a right to justification is a condition of engaging in justificatory discourse. This leads to the conclusion that what goes into the process of justification, including who figures in the discursive community, are irreducibly political questions, whose answers cannot be convincingly specified antecedently by a form of moral legislation. I argue that actual discursive processes allow for considerably more contingency and contextual variability than Forst’s construction acknowledges. This extends, as I suggest in conclusion, to the idea that content can be specified via the Kantian notion that acceptability requires the ‘containment’ of an actor's ends by another, such as an affected party.


Glen Newey
Glen Newey is professor of Political Philosophy and Ethics at Leiden University.
Article

Access_open Two Sides of the Same Coin

Unpacking Rainer Forst’s Basic Right to Justification

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Stefan Rummens
AbstractAuthor's information

    This paper makes two comments on Rainer Forst’s keynote contribution. It argues, first, that three important distinctions introduced by Forst are, in fact, all different versions of the more primary distinction between the a priori reconstruction of basic rights by philosophers and the discursive construction of basic rights by citizens. It proposes, secondly, an alternative discourse-theoretical reconstruction which makes a distinction between the basic right to justification and the basic right to choose your own ends as two different but inseparable rights – two sides of the same coin – which jointly provide the moral ground for our basic rights as citizens.


Stefan Rummens
Stefan Rummens is professor of Moral Philosophy at the Institute of Philosophy of KU Leuven.
Article

Pondering over “Participation” as an Ethics of Conflict Resolution Practice

Leaning towards the “Soft Side of Revolution”

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2016
Keywords participation, structural violence, narrative compression, master-counter narratives
Authors Sara Cobb and Alison Castel
AbstractAuthor's information

    “Participation” has been defined as the engagement of local populations in the design and implementation of peace-building processes in post-conflict settings and it has been presumed to be critically important to sustainable conflict intervention. In this article, we explore this concept, so central to the field of conflict resolution, focusing on a set of problematic assumptions about power and social change that undergird it. As a remedy to these issues, we offer a narrative as a lens on the politics of participation. This lens thickens our description of our own participation as interveners, a reflexive move that is notably missing in most efforts to redress the dark side of “participation” – that it has often been used as a means to upend structural violence, only to contribute to its reproduction. Drawing on the work of Ginwright, specifically his work with black youth in Oakland, CA, we explore participation as a process involving the critical examination of master/counternarratives. By offering a narrative lens on participation, we hope to illuminate a framework for the ethics of conflict resolution practice that enables practitioners to ethically navigate the politics of “participation.”


Sara Cobb
Dr. Sara Cobb is the Drucie French Cumbie Chair at the School for Conflict Analysis and Resolution (S-CAR) at George Mason University. She is also the Director of the Center for the Study of Narrative and Conflict Resolution at S-CAR that provides a hub for scholarship on narrative approaches to conflict analysis and resolution. Dr. Cobb is widely published and a leader in narrative approaches to conflict resolution.

Alison Castel
Dr. Alison Castel is faculty at the University of Colorado, Boulder where she teaches the core curriculum in Peace and Conflict Studies for the International Affairs program and is the Associate Director of the CU in DC internship program. She holds a Ph.D from the School for Conflict Analysis and Resolution (S-CAR) at George Mason University, and is an affiliate of the Center for Narrative and Conflict Resolution at S-CAR.
Article

Access_open A Law and Economics Approach to Norms in Transnational Commercial Transactions: Incorporation and Internalisation

Journal Erasmus Law Review, Issue 1 2016
Keywords Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Authors Bo Yuan
AbstractAuthor's information

    In today’s global economy, a noticeable trend is that the traditional state-law-centred legal framework is increasingly challenged by self-regulatory private orders. Commercial norms, commercial arbitration and social sanctions at the international level have become important alternatives to national laws, national courts and legal sanctions at the national level. Consisting of transnational commercial norms, both codified and uncodified, and legal norms, both national and international, a plural regime for the governance of transnational commercial transactions has emerged and developed in the past few decades. This article explores the interaction between various kinds of norms in this regime, identifies the effects of this interaction on the governance of transnational commercial transactions and shows the challenges to this interaction at the current stage. The central argument of this article is that the interaction between social and legal norms, namely incorporation and internalisation, and the three effects derived from incorporation and internalisation, namely systematisation, harmonisation and compliance enhancement, are evident at both the national and international levels. In particular, the emergence of codified transnational commercial norms that are positioned in the middle of the continuum between national legal norms and uncodified transnational commercial norms has brought changes to the interaction within the international dimension. Although the development of codified transnational commercial norms faces several challenges at the moment, it can be expected that these norms will play an increasingly important role in the future governance of transnational commercial transactions.


Bo Yuan
Bo Yuan is a Ph.D. candidate at the Erasmus University Rotterdam, Department of Law and Economics.
Article

13th Sir William Dale Memorial Lecture

Innovation and Continuity in Law Making

Journal European Journal of Law Reform, Issue 3 2015
Authors Richard Heaton
Author's information

Richard Heaton
First Parliamentary Counsel and First Secretary to the Cabinet Office.
Article

Corruption and Controls

Journal European Journal of Law Reform, Issue 4 2015
Keywords corruption, controls, inspections, administration, regulation
Authors Maria De Benedetto
AbstractAuthor's information

    Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour.
    Alongside criminal investigation, administrative controls and administrative investigation should be considered crucial because they intervene at early stages, when corruption has been developing, allowing real prevention.
    This article analyses some points that we should remember in order to connect controls and corruption correctly: first of all, controls have a hybrid nature: not only are they a way to combat or prevent corruption but also they are real occasions for corrupt transactions; furthermore, controls are a cost and administrative capacity of control is limited; moreover, planning controls is not a simple task; and finally, sanctions following controls must be effective in order to deter.
    The article also analyzes what is needed in matters of corruption controls, with special reference to good rules (aiming at a legal system with fewer but better rules, rules which work as incentives, rules capable of designing good institutions). There is also a need for good practices (in order to improve the understanding of corruption processes, to reduce controls, to cooperate in investigating cases of corruption).
    Finally, the article warns about the fact that corruption controls produce more bureaucracy and that early detection of corruption would mean, in this perspective, to make a diagnosis of ‘corruptibility’ starting from rules.


Maria De Benedetto
Full Professor, Roma Tre University.
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