Building on the previous two chapters, Chapter 5 sets out a normative framework for assessing the appropriateness and scope of structural reform litigation and structural remedies in particular. Drawing on political process theory, the chapter suggests that structural reform litigation should address political malfunctions only when other democratic means have proven insufficient. It also emphasizes the need for a case-by-case approach requiring judges to consider the functionality, necessity and costs of intervention (proportionality). The chapter identifies the quantity and persistence of rights violations as central factors for determining the need for judicial intervention, with quality and intent providing additional guidance, and offers criteria to distinguish cases of institutional failure from those of (legitimate) disagreement. This chapter serves as a guide for legal practitioners and scholars, advocating for judicial restraint while acknowledging the judiciary’s crucial role in safeguarding democracy amid persistent governance failures.

Various cities across the world have been engaging in smart city projects, seeking effective solutions to various urban issues (such as traffic, waste, and housing) as well as global issues (energy, climate change, and the COVID-19 pandemic). This chapter explores Asian models of smart cities by analyzing how Japan and the Association of Southeast Asian Nations are engaging in smart city projects. In particular, this chapter highlights the role of Japan in shaping the ideas and norms of smart cities by exporting smart solutions. Exporting the ideas of smart cities can eventually affect urban governance, including legal infrastructures. This chapter also looks at China’s smart city model, associated with large-scale overseas capacity building, as a rival of Japan. Several methods of interaction exist via exporting smart solutions, including development cooperation, diffusion of ideas, and regulatory competition, and this chapter examines strategic differences among countries engaging in Asian smart city projects.

Nowhere in the text of the US Constitution is there an explicit reference to an affirmative right to vote. And yet, the Constitution and its amendments contain numerous provisions relating to the integrity of elections – what counts as a valid or legitimate electoral process. For the Framers of the Constitution, election integrity was fundamentally about ensuring that, if elections were held, only qualified persons could vote. The argument we advance in this contribution is that the twenty-first century challenge of safeguarding elections from cyber threats must be understood as part of this history, and not solely as a niche engineering or information security problem. In information security, a hacker is someone who uses their skills and knowledge of digital systems to solve problems or achieve desired outcomes, even if it means subverting those systems. Hackers may don a metaphorical white, black, or gray hat, depending on whether their actions and goals are rightful, wrongful, or somewhere in between. We port this concept over to election integrity and its preoccupation with hackers of a different kind: political hackers who use their skills and knowledge of law, psychology, and democratic procedures to subvert those procedures in pursuit of their political interests. History is riddled with legitimate and illegitimate efforts to “hack” elections, and cyber risks to election integrity, though real, cannot (perhaps yet) shine a candle to the myriad other ways that intrepid hackers have sought to subvert democracy. An all-hazards approach to election integrity is warranted.

Wrongful convictions for imagined crimes that did not happen, including witchcraft and satanic sexual abuse, have been influenced by gender stereotypes. The role of intersecting forms of prejudice is examined through case studies of wrongful child abuse convictions of a gay man in New Zealand and lesbians in the United States. Case studies of the wrongful convictions of Florence Maybrick, Lindy Chamberlain and Kathleen Folbigg are related not only to their immediate cause of faulty forensics but also to perceived departures from gendered concepts of motherhood and wifehood. A similar theme is seen in the disproportionate wrongful convictions and false guilty pleas of women for the deaths of children in their care. Shaken baby syndrome played a role, but gender, racial and class prejudices were also often in play. Women, especially Indigenous women, are particularly vulnerable to making false guilty pleas. The possible role of stereotyped assumptions about male violence in sexual assault wrongful convictions will be examined. Sexual assault law reforms make it more difficult to correct wrongful convictions where consent is claimed as opposed to the minority of cases of stranger sexual assaults where DNA can prevent and remedy wrongful convictions.

Starting with the pioneering work of Edwin Borchard, the American focus has been on proven factual innocence. This concept has a populist appeal and fits with America’s moralistic and highly punitive approach to crime. Proven innocence has inspired both legislative reforms and executive grants of clemency. It has had somewhat less success with American courts. American Federal courts require proven innocence for some defaulted habeas corpus claims but have not recognized free-standing innocence claims. Death row exonerations have played a role in executive moratoriums and legislative abolition of the death penalty in some states but have not resulted in judicial abolition. Mass exonerations related to policing and forensic science scandals have received far less attention than the UK’s post office scandal even though they reveal much about false guilty pleas and systemic discrimination. Generous systems of legislative compensation and civil rights litigation are related to the popular appeal of proven innocence and successful civil right litigation. Finally, some possible future directions for American innocence projects and movements in light of Trump’s first presidency and his re-election in 2024 are assessed.

This chapter examines what is known about China’s remedied wrongful convictions including three well-publicized “back from the dead” cases. The predominant cause was false confessions obtained through police torture. As in the United States, remedied cases typically involved multiple rounds of litigation that establish proven or obvious innocence. China’s responses to well-publicized wrongful convictions from 2006 to 2013, including the introduction of an exclusionary rule for involuntary confessions, are assessed. These reforms may help legitimate or wrongful conviction wash an unjust system. Unremedied wrongful convictions may increase under a 2018 law to encourage guilty pleas. The precarious and marginal role of defence lawyers is examined. Compensation has increased for the wrongfully convicted and is available to the wrongfully detained. The extension of the authoritarian Chinese system would have regressive effects, given Hong Kong’s broader focus on miscarriages of justice and Taiwan’s more democratic approach and lesser reliance on guilty pleas.

This chapter examines the relevance of sustainable development to regulation of remote work. It investigates various ways in which the sustainable development goals (SDGs) adopted in the UN 2030 Agenda can be relevant to remote work, offering a perspective that considers not only economic objectives but also the environmental and social pillars embedded in that instrument. It is argued that procedural aspects of sustainable development, such as the human right to freedom of association and effective collective bargaining together with the participatory governance mechanisms promoted by SDGs 16 and 17, will be important for the sustainability of remote work, in order to achieve just transitions which are both digital and green. The chapter then examines the significance of the international institutional response to sustainable remote work, both at the UN and the ILO. It considers the extent to which a corporate social responsibility (CSR) approach, which has ostensibly embraced sustainability, actually corresponds to UN and ILO standards that should govern remote work. It is suggested that this will only be possible if enhanced participatory engagement is enabled in the implementation of due diligence and just transition.

In 2015, Russia’s state media regulator Roskomnadzor criminalized sharing information that criticizes and ridicules public figures. The crudity of some of the memes notwithstanding, the state’s swift and heavy-handed response was remarkable the Russian government was afraid of public laughter. In the following years, the state’s stance on internet jocularity only worsened, culminating in the infamous 2019 disrespect of authorities, laws, and a string of criminal cases against those who created or reposted playful memes that made fun of the church and other authorities. Since the 2022 invasion of Ukraine, the Russian government has grown even more intolerant, choking every voice of dissent. Nevertheless, many Russians continue to resist the official Kremlin narratives despite the threat of severe punishment; and humor remains one of their “weapons” of choice. The purpose of this chapter is to examine the role of humor in building resilience to authoritarianism and disinformation, especially among the younger generation of Russians. As public jocularity continues to be a powerful resource in both the ongoing struggle for democracy in Russia and in the crackdown on it, we examine humor in the context of the 2022 Russian invasion in Ukraine and argue that social media plays a role in amplifying humor and contributing to political change.

The concept of permissive law comes into play in several key passages of Kant’s writings in legal philosophy. Many scholars argue that Kant conceives of permissive laws as suspending moral demands, thus ‘permitting’ in the sense of tolerating morally wrong actions. In opposition to this view, this chapter submits that Kant takes permissive law to be a kind of moral licence. It lays the foundation of this interpretation through a reading of Kant’s discussion of permissive law in Perpetual Peace. As it argues, Kant follows Achenwall and Baumgarten in taking permissive law to be a species of prohibitive law, developing the concept of a law that specifies under which conditions certain actions are allowed. The function of the permissive law in Kant’s legal philosophy is neither to tolerate transgressions of prohibitions nor to regulate as such morally indifferent matters. As it shows, permissive laws are norms that specify under which conditions certain actions are allowed that would otherwise be forbidden. A permissive law licenses certain actions with respect to certain conditions. In the sphere of this licence, the actions are not merely tolerated, but genuinely permitted.

Chapter 6 examines scenarios in which courts use arguments from failure to override otherwise existing reasons for judicial deference. It illustrates the close connection in judicial practice between legal innovation and arguments from failure. It shows how the framework set out in the previous chapter provides guidance here too, albeit with some adjustments, given that – unlike in the case of structural reform litigation – failure here serves as an argument that a rights violation has taken place at all, rather than justifying a specific response to one. The chapter points to some resources for grappling with this difficulty. It concludes with a brief case study of the role of failure arguments in important climate change judgments in Pakistan, the Netherlands and Germany.

As in China, many of India’s remedied wrongful convictions involved police-induced false confessions. They likely reveal only a small “tip of the iceberg,” given the many missing remedied wrongful convictions found in other jurisdictions. Indian appellate courts are not reluctant to overturn convictions in part because of the absence of jury trials. India’s record of remedied wrongful convictions supports the abolition of the death penalty, with no exception for terrorism cases. Criminal laws enacted by the Modi government at the end of 2023 have increased the risk of wrongful convictions by, for example, increasing police custody, forensic investigations and restricting executive clemency. The 2023 laws did not implement the 2018 Law Commission recommendations to provide compensation for both the wrongfully detained and the wrongfully convicted, even though three-quarters of prisoners in India are awaiting trial.. Finally, possible futures for innocence projects and innocence movements in India are explored, with attention to the need to be sensitive to local conditions.

This book concludes by analysing a contemporary digital text, Wikipedia’s article on authorship, based on the prior insights into literary production gleaned from Kant’s 1785 essay. I clarify the fundamental challenge issued by Wikipedia’s multitudinous authorship to copyright’s proprietary model by turning to some of its digital paratexts. The dispute tags, hyperlinks, footnotes and revision history of Wikipedia’s article on authorship are read as indices of the digital machinery that constituted it and keeps it open to revision. I further discuss the ethical dimension of Wikipedia’s production by situating the digital encyclopaedia alongside, and against, some of its print predecessors in Roman antiquity and the European Enlightenment. This analysis of Wikipedia closes with an invitation for the writing of a media history of the encyclopaedia, one that could account for its ethics and communicative function in the digital present.