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Edinburgh Law School Legal Studies Research Paper Series - June 2022

Wed 22 June 2022

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The latest in the Legal Studies Research Paper Series (Vol. 10, No. 2: Jun 22, 2022) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Mental Health Policies And Laws On The Island Of Ireland

Anne-Maree Farrell, Edinburgh Law School

Gavin DavidsonQueen's University Belfast

Mary Donnelly, University College Cork (UCC) - Law Faculty

Elizabeth Agnew, Queen's University Belfast

Trisha Forbes, Queen's University Belfast

Rhiannon Frowde, Edinburgh Law School

This Working Paper provides a critical review of key policies, laws and institutional arrangements in the area of mental health in Northern Ireland and Ireland. This is done in order to map key similarities and differences as between the two jurisdictions. Drawing on the findings from such a review, it is suggested it would be useful to develop a joint research agenda in mental health policy and law as between the two jurisdictions. Key priorities for such agenda include developing an agreed common mental health dataset; facilitating approaches to support autonomy and reduce the need for compulsory intervention; examining the current laws and mental health service provision applicable to children and young people; and evaluating the implementation of new capacity-based laws in both jurisdictions. The development of such an agenda could provide a basis for considering what this might mean in relation to a potential shift over time towards greater alignment or integration, which would necessarily be informed by broader political developments on the island of Ireland.

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Monitoring Female Fertility Through ‘Femtech’: The Need For A Whole-System Approach To Regulation

Catriona McMillan, Edinburgh Law School

Concurrent with the rise of digital health and personal health tracking technologies, a market has also emerged of products targeted specifically at women: ‘femtech’. This paper is motivated by the concern that insufficient regulatory attention has been devoted to this growing market, and that extant ambiguity in the regulation of femtech leaves its users at risk of relying on technologies of as-yet unproven worth. It is posited that femtech profoundly disrupts well-established regulatory mechanisms of protection in ways that means that these silos of protection will not be adequate. This is because regulation as it is currently constructed is insufficiently sensitive to feminist perspectives regarding what these technologies mean for women. As a result, the regulatory sphere in which femtech operates fundamentally fails to ensure that the health and safety of femtech users are protected as this market continues to expand. To counteract this, the argument is made that an appropriate regulatory response to femtech must respond to the distinctive unmet need in the regulation of this technological realm and acute risk that femtech poses. This must include a multidimensional whole systems approach grounded in feminist perspectives on health, fertility and technology.

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From Poisons to Antidotes: Algorithms as Democracy Boosters

Paolo Cavaliere, Edinburgh Law School

Graziella RomeoBocconi University - Department of Law

Under what conditions can artificial intelligence contribute to political processes without undermining their legitimacy? Thanks to the ever-growing availability of data and the increasing power of decision-making algorithms, the future of political institutions is unlikely to be anything similar to what we have known throughout the last century, possibly with Parliaments deprived of their traditional authority and public decision-making processes largely unaccountable. This paper discusses and challenges these concerns by suggesting a theoretical framework under which algorithmic decision-making is compatible with democracy and, most relevantly, can offer a viable solution to counter the rise of populist rhetoric in the governance arena. Such a framework is based on three pillars: a. understanding the civic issues that are subjected to automated decision-making; b. controlling the issues that are assigned to AI; and c. evaluating and challenging the outputs of algorithmic decision-making.

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Primary Duty = Secondary Duty?

Claudio Michelon, Edinburgh Law School

This paper addresses one of the central questions in the law of torts: what is the relationship between the primary duty and the secondary (or remedial) duty? The two dominant answers to that question (the continuity thesis and the identity thesis) stand in a complex relationship that is not yet fully understood and, as a result, the arguments for and against each thesis are muddled. The paper clarifies each thesis, defends each rival against objections that have been levelled against them and, at the end, present reasons why an original version of the continuity thesis offers a better framework within which to understand the relationship between primary and remedial duty.

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Book Review: Legal Pluralism Explained: History, Theory, Consequences

Cormac S. Mac Amhlaigh, Edinburgh Law School

This is short review article of Brian Tamanaha’s latest book: Legal Pluralism Explained: History, Theory, Consequences Oxford: Oxford University Press, 2021, 208 pp.)

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