Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.
This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
This chapter examines the scholarship in the new and growing field of study of Islamic animal law. It starts by defining the field of animal law generally and then explaining what makes animal law scholarship Islamic. Turning to Islamic animal law, the chapter first explains the origins of the field and then discusses contemporary Islamic animal law scholarship, which dates to the early-twenty first century and has focused on questions of purity and the dog; causing animals harm; anthropocentricism; and slaughter and the designation of halal. The chapter concludes by identifying promising areas for future scholarship.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
Disputes involving Olympic athletes can arise from a wide range of decisions made by a host of entities. A disputed decision may involve the eligibility of an athlete, employment of coaches and staff, organizational governance, doping, and commercial contracts. Three disputes involving athletes and the modern Olympic games show how arbitration has come to play a central role in resolving contested decisions of sporting associations. First, the case of sprinter Harry Reynolds illustrates the limitations of using national courts to challenge doping-related sanctions. Second, the eligibility struggles of Oscar Pistorius demonstrate how athletes and national sporting associations can benefit from arbitration’s efficiency. Finally, the case of Claudia Pechstein offers a recent example showing the deference given arbitration by national courts, for better or worse.
The world of reproductive technology, including donor gametes and surrogacy, brings new challenges to identifying parents and respecting children’s rights. An intending parent—married or unmarried—is not necessarily the genetic contributor to the resulting child. And children have interests in knowing the identity of their genetic progenitors. This chapter focuses on whom the law recognizes as parents when a child has been created through assisted reproductive technology. While the chapter traces how intent has emerged as the critical factor in determining parentage, it also shows how intentional parenthood might sometimes be in tension with functional parenthood. The chapter provides a brief history of the technologies and their implications for parentage law and children’s rights to know their genetic origins. It also considers how the law might better adjust to changing technologies and family structures to produce outcomes that respect the child, rather than abstract concepts of equality—or even the parents’ interests.
The sports agent performs a critical function as an intermediary between management and athletes by handling contract negotiations, endorsements, financial planning, and other associated activities. This chapter provides a history of athlete representation beginning in the 1920s with the efforts of Christy Walsh and Charles C. Pyle through the increased role of players associations during the final third of last century. In the 1980s, professional associations and state legislatures launched efforts to regulate agent behavior as a reaction to evidence of abuse. In the 2000s, these problems prompted the National Conference of Commissioners on Uniform State Laws to introduce the Uniform Athlete Agents Act, a legislative initiative ultimately adopted by over 80% of states, and the U.S. Congress passed the Sports Agent Responsibility Trust Act. Both initiatives addressed the tension between the NCAA’s amateurism standards and efforts by agents to attract clients before the completion of their eligibility.
Alexandra J. Roberts
This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.
This article explores the relationship between respect for individual autonomy and the law governing end-of-life treatment in the United States. It begins with a review of the law governing treatment decision-making for competent adults, incompetent adults, and children. It then turns to the issue of determining death. After that, the article discusses the limitations of the autonomy-based approach in addressing three areas of end-of-life law: “futile” treatment disputes, treatment decisions for incompetent patients, and access to physician-assisted death. It concludes that courts and other legal decision-makers will face pressure to consider the proper role of quality of life, cost, medical judgment, and patient vulnerability in determining end-of-life law.
This chapter examines how civil liability assessments and criminal convictions have affected the legality of blood sports. Blood sports can be divided into three categories: human versus human contests, human versus animal sports, and animal versus animal fighting. For over a century, blood sports have been under both social and legal attack, resulting in significant changes in most of the historic forms of combat worldwide. The chapter begins with an overview of the most popular violent sports today, including contact sports such as American football and ice hockey. It then considers criminal prosecutions and civil lawsuits that arise from contact sports, including the “concussion suits” filed on behalf of athletes who suffered head injuries. It also discusses the doctrine of assumption of risk in sports and concludes with an analysis of how legislative intervention can obviate private tort liability for latent, chronic injuries to the brain of players.
This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.
The capture and long-term storage of carbon dioxide from power plants and other industrial installations may prove a key technology in climate change abatement strategies. Regulatory frameworks for carbon capture and storage (CCS) are now being developed in a number of jurisdictions. The European Union produced the first comprehensive legislation on the subject in 2009, which provides a compelling example of challenges associated with the design of regulation dealing with a novel technology. This chapter identifies three issues, each of which reflects aspects of regulatory legitimacy: the extent to which states within a federal or quasi-federal system should have the legal discretion to reject a technology; the way in which regulation provides for opportunities for public participation and engagement in issues concerning the new technology; and whether, and at what point, the state should assume responsibility for storage sites, given the long timescales necessary for secure storage.
This chapter explores some challenges that arise in respect of the regulation of human enhancement. It opens by advocating a definitional pluralism that acknowledges the existence of many concepts of human enhancement. These highlight different moral concerns about the application of genetic and cybernetic technologies to human brains and bodies. I identify one concept that is particularly effective at expressing the upsides of human enhancement. Another concept serves better to reveal enhancement’s downsides. I describe a further concept that reveals moral issues connected with great degrees of human enhancement. The chapter concludes with a discussion of attempts to regulate enhancement in elite sport. I defend the efforts of the World Anti-Doping Agency (WADA) to keep artificial means of enhancement out of sport.
James G. Dwyer
This article introduces The Oxford Handbook of Children and the Law. This volume of collected essays by many of the world’s leading scholars of child welfare and law combines thorough research on a comprehensive range of legal issues salient in children’s lives with sophisticated theoretical and policy analysis of the law, informed by current empirical research on child development and welfare. The Handbook’s organization follows the life of a child, more or less chronologically, from prebirth to adolescence and a sequence of ever-widening social spheres—from the womb to family to society to the world. The topics range from assisted reproduction, protection of fetuses, parentage, child maltreatment, medical care, education, custody disputes, children’s privacy, delinquency, minimum age laws, and strategies for advocating for youths. There is also substantial geographic breadth; the authors of the volume’s chapters represent four continents and roughly a dozen countries. A unifying feature of the volume is that all chapters put children at the center of attention. The authors write about topics relating to children from within their respective areas of expertise and offer a perspective that focuses first and foremost on how the law impacts children’s wellbeing and experience of life. This often produces unfamiliar, thought-provoking conclusions.
This chapter begins by outlining the routes through which children drop out of school. It then draws on the failings of the English system to suggest six key lessons for other jurisdictions. The first centers on how academic results–driven accountability measures push schools and decision-makers into unjustifiably excluding children. The second demonstrates the vulnerability of discretionary frameworks to perverse incentives and unintended negative consequences for children at risk of school dropout. The third highlights the difficulties created by increased autonomy for teachers and schools. The fourth reveals how additional protections for particularly vulnerable children are constrained by the broader exclusion regime. The fifth and sixth demonstrate the need for jurisdictions to revisit the conceptual and empirical basis of their legal frameworks for exclusion, whether grounded in best interests, competing interests, or children’s rights. The chapter concludes by emphasizing the need to develop empirical evidence to underpin decisions around dropout.
Sara McLanahan, Kate Jaeger, and Kristin Catena
Families formed by unmarried parents increased dramatically in the United States during the latter half of the 20th century. To learn more about these families, a team of researchers at Princeton University and Columbia University designed and implemented a large birth cohort study—The Fragile Families and Child Wellbeing Study. This chapter highlights several findings from the study. First, most unmarried parents have “high hopes” for a future together at the time of their child’s birth; but their resources are low and most relationships do not last. Second, unmarried mothers experience high levels of partnership instability and family complexity, both of which are associated with lower-quality parenting and poorer child well-being. Finally, welfare state, child support and criminal justice policies play a large role in the lives of fragile families.
Patrick Parkinson and Judith Cashmore
This chapter explores the different ways that children can participate in custody and child protection cases. It is not only articulate older children and young people who ought to have an input into decisions. Children can “speak” in a variety of ways, and not only through words. To allow them to participate effectively, adults need to assist them through “scaffolding” their participation. Hearing the voice of the child also involves dilemmas. Children may not want to be involved for a variety of different reasons, some of which they may not feel free to disclose. The chapter concludes by offering four principles about how to hear from children in cases involving parenting arrangements.
This chapter examines how (if at all) children’s right to privacy is concretely implemented in the legal realm. It considers children’s privacy when they are involved in legal proceedings, children’s privacy in schools, children’s online privacy, children’s involvement with media publicity, and children’s right to confidential medical advice and treatment. It also considers children’s privacy in their relationship with their parents, focusing on parents’ surveillance and monitoring of their children and parents’ use of social media in a manner that involves their children. Existing legal policies and rules across these contexts fail to carve out a space where children can be free from constant adult gaze and supervision. This chapter argues that there is insufficient research about children’s needs and interests in privacy, and where research does exist lawmakers fail to take notice of its findings; privacy theories are mainly adult-centered and cannot adequately be applied to children; and family law conceptions still focus on parental authority, and around the idea of “the family” as a unit.
The concept of citizenship denotes a legal status, an identity, and a range of distinctive activities and practices. These dimensions of citizenship are unified by the fact that they are all underpinned by a unifying and universalist logic. Modern societies are culturally diverse. Many of them are constitutively diverse, in that cultural diversity was present at their founding. Others are contingently diverse, in that they have been subject to processes such as immigration that has diversified them after founding. Many arguments have been developed to show that there are strong grounds, compatible with a broadly liberal political ethics, to resist arguments for shared citizenship in the context of constitutively culturally diverse societies. But contingently culturally diverse societies, to the degree that they recognize and enforce individual rights, are also ill-equipped to enforce a thick shared citizenship identity. Perfectionist arguments for citizenship fall foul of liberal principles. Rather than a shared identity or shared obligations imposed by the state, multicultural societies can see the emergence of shared identities and ethos emerging “from below”.
The relationship of citizenship and human rights has become a central issue for contemporary politics. This chapter begins with a brief overview of theories of human rights, before addressing two pivotal topics for this relationship: a human right to citizenship (as membership of a state) and a human right to democracy. It then turns to consider the practical salience of the international human rights regime for citizenship and human rights, before concluding with a discussion of the relationship of human rights as cosmopolitan norms to the principle of the self-determination of peoples.