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Article

Access_open Right to Access Information as a Collective-Based Approach to the GDPR’s Right to Explanation in European Law

Journal Erasmus Law Review, Issue 3 2018
Keywords automated decision-making, right to access information, right to explanation, prohibition on discrimination, public information
Authors Joanna Mazur
AbstractAuthor's information

    This article presents a perspective which focuses on the right to access information as a mean to ensure a non-discriminatory character of algorithms by providing an alternative to the right to explanation implemented in the General Data Protection Regulation (GDPR). I adopt the evidence-based assumption that automated decision-making technologies have an inherent discriminatory potential. The example of a regulatory means which to a certain extent addresses this problem is the approach based on privacy protection in regard to the right to explanation. The Articles 13-15 and 22 of the GDPR provide individual users with certain rights referring to the automated decision-making technologies. However, the right to explanation not only may have a very limited impact, but it also focuses on individuals thus overlooking potentially discriminated groups. Because of this, the article offers an alternative approach on the basis of the right to access information. It explores the possibility of using this right as a tool to receive information on the algorithms determining automated decision-making solutions. Tracking an evolution of the interpretation of Article 10 of the Convention for the Protection of Human Right and Fundamental Freedoms in the relevant case law aims to illustrate how the right to access information may become a collective-based approach towards the right to explanation. I consider both, the potential of this approach, such as its more collective character e.g. due to the unique role played by the media and NGOs in enforcing the right to access information, as well as its limitations.


Joanna Mazur
Joanna Mazur, M.A., PhD student, Faculty of Law and Administration, Uniwersytet Warszawski.
Article

Access_open Privatising Law Enforcement in Social Networks: A Comparative Model Analysis

Journal Erasmus Law Review, Issue 3 2018
Keywords user generated content, public and private responsibilities, intermediary liability, hate speech and fake news, protection of fundamental rights
Authors Katharina Kaesling
AbstractAuthor's information

    These days, it appears to be common ground that what is illegal and punishable offline must also be treated as such in online formats. However, the enforcement of laws in the field of hate speech and fake news in social networks faces a number of challenges. Public policy makers increasingly rely on the regu-lation of user generated online content through private entities, i.e. through social networks as intermediaries. With this privat-ization of law enforcement, state actors hand the delicate bal-ancing of (fundamental) rights concerned off to private entities. Different strategies complementing traditional law enforcement mechanisms in Europe will be juxtaposed and analysed with particular regard to their respective incentive structures and consequential dangers for the exercise of fundamental rights. Propositions for a recommendable model honouring both pri-vate and public responsibilities will be presented.


Katharina Kaesling
Katharina Kaesling, LL.M. Eur., is research coordinator at the Center for Advanced Study ‘Law as Culture’, University of Bonn.

János Tamás Czigle
PhD candidate, Pázmány Péter Catholic University, Budapest.
Article

Keeping complexity alive: restorative and responsive approaches to culture change

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, responsive regulation, relational governance, complexity
Authors Gale Burford
AbstractAuthor's information

    The human services are fraught with history of failure related to grasping oversimplified, across-the-board solutions that are expected to work in all situations for all groups of people. This article reviews some of the long-standing and current challenges for governance of programmes in maintaining cultures that safeguard restorative and responsive standards, principles and values, thereby amplifying and enhancing their centrality to relational engagement within families, groups, communities and organisations. Despite their potential for helping groups of people grapple with the complex dynamics that impact their lives, restorative justice approaches are seen as no less vulnerable to being whittled down to technical routines through practitioner and sponsor colonisation than other practices. This article explores some of the ways culture can work to erode and support the achievement of restorative standards, and why restorative justice and regulation that is responsive to the ongoing experiences of affected persons offers unique paths forward for achieving justice. Included in this exploration are the ways that moral panic and top-down, command-and-control management narrow relational approaches to tackling complex problems and protect interests that reproduce social and economic inequality.


Gale Burford
Gale Burford is Emeritus Professor of Social Work, University of Vermont, Burlington, USA. Contact author: gburford@uvm.edu. Disclosure statement: There are no financial conflicts of interest.
Article

Restorative responses to campus sexual harm: promising practices and challenges

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Sexual assault, feminist, restorative justice in colleges and universities
Authors Donna Coker
AbstractAuthor's information

    The purpose of this article is to examine restorative approaches to campus sexual harm. A restorative response may provide support and validation for survivors, a pathway for personal change for those who cause sexual harm, and assist in changing campus culture. The article addresses three significant challenges to developing a restorative response. The first challenge is the influence of a pervasive ideology that I refer to as crime logic. A second challenge is the need for an intersectional response that addresses the potential for bias in decisions by campus administrators and restorative justice practitioners. The third challenge is to develop restorative approaches for circumstances in which a victim/perpetrator dyad is not appropriate.


Donna Coker
Donna Coker is Professor of Law, University of Miami School of Law, Miami, USA. Contact author: dcoker@law.miami.edu.
Article

Asking the ‘who’: a restorative purpose for education based on relational pedagogy and conflict dialogue

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Relational pedagogy, conflict dialogue, restorative approach, neoliberal education, marginalised students
Authors Kristina R. Llewellyn and Christina Parker
AbstractAuthor's information

    Drawing upon Gert Biesta’s concept of the learnification of education, we maintain that a meaningful purpose for Canadian schools has been lost. We demonstrate that the very fact of relationship is limited in curricula. The absence of relationality enables the continued privilege of normative identities. A restorative approach, based on asking who is being educated, could repurpose schooling. We draw upon examples from literature, current political events and our classroom-based research to illustrate how conflict dialogue, based on relational pedagogy, offers one path for a restorative approach. We conclude that conflict dialogue provides opportunities to engage diverse students in inclusive curricular experiences. Such a restorative approach exposes and explores the who of education for the purpose of promoting positive social conditions that allow for human flourishing.


Kristina R. Llewellyn
Kristina R. Llewellyn is an Associate Professor in Social Development Studies at Renison University College, University of Waterloo, Waterloo, Canada.

Christina Parker
Christina Parker is an Assistant Professor in Social Development Studies at Renison University College, University of Waterloo, Waterloo, Canada. Contact author: kristina.llewellyn@uwaterloo.ca.
Article

Changing Realities

Islamic Veils and Minority Protection

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords European Court of Human Rights, freedom of religion Islamic veils, minority protection
Authors Dr Gábor Kardos LLM, PhD.
AbstractAuthor's information

    Most of the immigrant communities in Europe do not show any signs of giving up their identity. Just the contrary, they seem to be more and more committed to preserving their culture, traditions, language and religion. Their growing numbers and adherence to their culture and traditions have raised the question of whether it would be necessary to accept them as permanent factors in the society, and consequently, to secure for them, beside equality and freedom of religion, other minority rights such as the right to preserve their cultural and language identity. This change might presuppose a renewal of the traditional understanding of the concept of the national minority. To raise the standards for minority rights of immigrants and at the same time to maintain the level of protection of homeland minorities is not an easy but a necessary solution. But even the accommodation of certain aspects of the freedom of religion of migrants is a problem in practice. As far as the public use of Islamic veils is concerned, the decisions of the European Court of Human Rights proved to be too lenient towards those state parties which put secularity of public institutions before the freedom of religion of the individual. The dissenting opinions correctly emphasize that the role of the authorities is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other. If the Islamic veils are symbols of pressurization, oppression and discrimination, or proselytism, the intervention of state authorities may be justified but the law cannot presuppose that the aforementioned situations are the prevailing ones. If it does so, the collateral damage at the expense of a basic human right of certain true believers is too high.


Dr Gábor Kardos LLM, PhD.
LLM, PhD. Dr Habil. Professor of International Law, International Law Department, Faculty of Law, ELTE University, Budapest, Hungary.
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

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. 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.

    In the process of adjudication and litigation, indigenous peoples are usually facing a very complex and demanding process to prove their rights to their lands and ancestral territories. Courts and tribunals usually impose a very complex and onerous burden of proof on the indigenous plaintiffs to prove their rights over their ancestral territories. To prove their rights indigenous peoples often have to develop map of their territories to prove their economic, cultural, and spiritual connections to their territories. This article reflects on the role played by the mapping of indigenous territories in supporting indigenous peoples’ land claims. It analyses the importance of mapping within the process of litigation, but also its the impact beyond the courtroom.


Jeremie Gilbert PhD
Jeremie Gilbert is professor of Human Rights Law, University of Roehampton.

Ben Begbie-Clench
Ben Begdie-Clench is a consultant working with San communities in southern Africa.
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