Laws, Volume 13, Issue 1 (February 2024) – 10 articles

Public sector digitalisation is transforming public governance at an accelerating rate. Digitalisation is outpacing the evolution of the legal framework. Despite several strands of international efforts to adjust good administration guarantees to new modes of digital public governance, progress has so far been slow and tepid. The increasing automation of decision-making processes puts significant pressure on traditional good administration guarantees, jeopardises individual due process rights, and risks eroding public trust. Automated decision-making has, so far, attracted the bulk of scholarly attention, especially in the European context. However, most analyses seek to reconcile existing duties towards individuals under the right to good administration with the challenges arising from digitalisation. Taking a critical and technology-centred doctrinal approach to developments under the law of the European Union and the Council of Europe, this paper goes beyond current debates to challenge the sufficiency of existing good administration duties. By stressing the mass effects that can derive from automated decision-making by the public sector, the paper advances the need to adapt good administration guarantees to a collective dimension through an extension and a broadening of the public sector’s good administration duties: that is, through an extended ex ante control of organisational risk-taking, and a broader ex post duty of automated redress. These legal modifications should be urgently implemented. Full article

The European Union classifies “novel foods” as those not widely consumed before 15 May 1997. This category includes recently created, innovative foods, as well as those made using new technologies and processes, and foods with a traditional consumption history outside the EU. Distinguishing between “novel” and “conventional” foods is legally significant, as the former require official authorization under the Novel Foods Regulation. The regulation prioritizes safety, accurate labeling, and nutritional parity with replaced foods. Regulation (EU) 2015/2283, effective from 1 January 2018, replaced prior regulations, facilitating access to the EU market for novel and innovative foods while maintaining high safety standards. Classifying botanical products as novel can be intricate. Safety assessments for plant products must consider diversity in species, varieties, ecotypes, and chemotypes, as cultivation practices influence chemical composition. The article reviews the legislation applicable to botanicals and proposes different ways to evaluate in advance whether a product is “novel” or not, emphasizing the evaluation of the origin and consumption history of foods of plant origin. Full article

A growing number of states have responded to negative trends in civic knowledge, trust, and engagement by creating new institutes or schools at state universities, with the express aim of reinvigorating civic education and thoughtful, engaged citizenship. In seeking to increase civic knowledge, champion viewpoint diversity, model civil discussion of ideas, combat polarization, and embrace the civic responsibilities of higher education, these institutes can be seen as carrying forward the American founders’ vision of civic education, the moral foundations of law and constitutionalism, and the constitutional principles of free speech and federalism. Full article

Digital transformation fuels technological advancement and widespread public use of Internet networks, leading to a growth in digital platform users. This increase is highly likely to boost platform profits by obtaining more insights into user behavior. Additionally, digital platforms generate income through monetization. The purpose of this research is to examine the role and challenges of technology architecture as an instrument of digital tax imposition in Indonesia and to see further the digital tax arrangements in Indonesia and several countries in the world. This research uses a normative juridical approach by examining the norms or rules formulated in law without excluding empirical facts in the field. The results show that the imposition, implementation, and regulation of digital taxes have potential and challenges from various aspects. Their success will depend on the ability to overcome these challenges while maximizing the opportunities of technological architecture to increase digital taxes. Furthermore, to regulate digital tax itself, governments can update and integrate digital tax arrangements, as well as collaborate with other related parties regarding the arrangements or principles used for the imposition of digital tax. Full article

The article herein examines the case-law interplay between human rights and international investment law. An example of this interplay is the relation of property rights to protection from expropriation. In this study, a conceptual framework is developed, which represents the various ways of case-law interaction between the two disciplines regarding protection of property. This is achieved by using a cross-reference approach, where it is proven that the two legal fields overlap and share these common principles, albeit with their structural differences. This interplay has various dimensions, and this article aims at analysing them and ultimately illustrating that human rights and international investment law are not independent from each other. Full article

Since the passage of the landmark Americans with Disabilities Act of 1990, the United States federal government, states, and localities have passed laws and created policies intended to ensure that people with disabilities had full and equal access to public spaces. Nevertheless, more than three decades after the ADA, people with disabilities continue to face architectural and other barriers to community inclusion and participation. This article describes laws, policies, and initiatives that are implemented in the United States at the federal, state, and local levels to address these barriers, examines their effectiveness, and describes the views of advocates working in furtherance of the rights of people with disabilities and the inclusiveness of public spaces. We conclude by providing brief recommendations for ways federal, state, and local governments may ensure people with disabilities have full and equal access to public spaces. Full article

From the perspective of defuturing design philosophy, this article discusses the close relationship between the growing body of artificial-intelligence (AI) artifacts in the Brazilian Judiciary and the phenomenon of litigiousness therein. Litigiousness has traditionally been tackled through mechanisms that increase productivity and efficiency in case processing, a strategy that has not succeeded in reducing litigiousness, as data make evident. Analyzing data from relevant sources, this article demonstrates that AI artifacts mostly perform tasks related to clustering and mass handling of cases, following the same path dependency. Consequently, they entail risks of judges’ alienation and loss of agency, which can negatively impact citizens’ fundamental rights. Moreover, they defuture; that is, they erase other (preferable) futures. Albeit AI artifacts can play a part in tackling litigiousness, there should be a critical reflection upon futuring and defuturing. Therefore, this article recommends that SoDF—a systemic approach to design that seeks to explore design consequences, futuring and defuturing—be mandatory to any AI design process. Additionally, it proposes continuous judicial monitoring for alienation and loss of agency, as well as investments in judicial education to empower judges to effectively control and supervise AI artifacts. Finally, it suggests a further research agenda. Full article

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a model of equity in practical reasoning and civic discourse more broadly. Research method: jurisprudence. Full article

The present study aims at providing an overview of the international, European, and national legal frameworks relating to the obligation of intermediaries of financial transactions to report to tax authorities, and the professional secrecy which applies to their professions, as well as the conflict between the two. The authors address these topics from theoretical and jurisprudential perspectives, both at national and European levels, using doctrinaire, documentary, and comparative approaches. The analyses pointed out that the focus is placed on lawyer–intermediaries’ activities and liabilities when their activity is covered by confidentiality and legal privilege. Specific attention was revealed to be necessary when the conditions under which an exemption from the reporting obligation applies, and the particularities of the effects of the regulation in these scenarios. The topic of observing the legal framework and solving the possible conflicts generated by the divergent regulation of the law enforced has been the subject matter of recent European case laws that impact all the legal systems of the European Union’s member states, which has necessitated an examination of the hierarchy of law systems within the European Union member states and to emphasize the practical jurisprudential effects. Full article

In 2022, the European Commission introduced, for the first time in its history, a windfall profit tax to be applied on “excessive” profits realized by qualified businesses operating in the “Oil and Gas” sector. Immediately after its implementation, questions arose as to its sustainability and its consistency with constitutional principles of the different member states regulating the domestic power to tax. To assess the consistency with the aforesaid rules, the article samples two countries, inside and outside the EU (Italy and Australia, respectively), and the historical precedents of the matter. Italy has been chosen due to the particularly stringent set of principles regulating the power of the legislature to tax, and Australia has been chosen because of the long-standing experience with superprofit taxes. In most of the scenarios analyzed, one common feature emerged: the complexity in defining the “Extra” nature of the profits and, consequently, the uncertainties in the calculation of the taxable base. In the case of Italy, for instance, the legislator had to intervene in several different moments to fine-tune the taxable base and restore certainty to the tax system. As a conclusion, while the taxation of extra profits should not per se be disregarded, its implementation demands a more robust and precise legal framework together with the understanding that the introduction of such a levy would be a one-way journey for the tax systems: windfall profits taxes would be here to stay. Full article