Why the 1980s Measures of Racially Polarized Voting Are Inadequate for the 1990s

In this paper, we attempt to clarify some of the confusion that surrounds the measurement of racially polarized voting. This clarification is necessary because the determination of whether or not racially polarized voting exists is often a critical component of the evidence presented in Voting Rights Act (Section 2) litigation. We first show that the correlation coefficient should never be used to measure voting polarization by relating the statistic to the individual behavior that it is supposed to be describing. We then compare the estimates of polarized voting that are provided by other commonly used measures with individual behavior in order to show that the Voting Rights disputes of the 1990s will require different and more carefully specified measures than are currently in use.     

The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective*

We discuss uses of social science definitions and research methods in judging compliance with the recently modified language of Section 2 of the Voting Rights Act. That Act now specifies a “totality of circumstances” effects lest for the existence of racial vote dilution. There are seven “typical” factors listed by the Senate Committee on the Judiciary in its report on the 1982 Voting Rights extension as among those which may be used to establish a Section 2 violation. Because of the nature of these factors, extensive (and often conflicting) testimony by social scientists has now become an inescapable feature of Section 2 litigation. We focus particular attention on one of the seven factors, racially polarized voting, because measurement of it is, as judged by recent litigation, the most controversial, the most complex, and the most important. We also discuss at some length another factor, racial campaign appeals, which also raises issues of appropriate definition and measurement. The aim of this paper is to contribute to a standardization of terminology and operationalization in an important public policy area, and to show how social science methodology can assist legal fact-finding.     

Implications of the Human Rights Act (1998) for schools

The Human Rights Act 1998 finally came into operation on 2 October 2000 for all jurisdictions of the United Kingdom. The Act, which incorporates the European Convention on Human Rights into the UKs domestic laws, means that it will be unlawful for public authorities, which includes the DfEE and LEAs, to act in a way which is incompatible with the fundamental human rights set out in the Convention (found in Schedule 1 to the HRA). Bodies such as schools and their governing bodies, whose functions are of a public nature, are also covered by the legislation. The articles of the Act which have a particular relevance for schools and education are identified. It is probable that pupils and their legal advisers will invoke the Act in disputes over a wide range of educational issues, for example, bullying, exclusions and suspensions. Some of these issues are examined and where possible existing European human rights case law is cited. It is likely that the HRA will create interesting legal challenges involving schools and education, some of which cannot be anticipated at the moment, and that the Act will cause changes to education laws and schools regulatory procedures .     

Beyond the property debate: animal welfare as a public good

Abstract

Animal protection is socially constructed through laws specifying which animals should be protected and how. Most jurisdictions codify animal abuse by specifying the legal protections granted to animals. While these vary between jurisdictions, western legal systems generally provide for better levels of animal protection by incorporating animal welfare and wildlife crime laws into criminal justice systems. UK legislation has long held that animal welfare is a public good, thus animals should be protected in the public interest. However, despite the protective provisions of animal protection laws they generally fall short of giving animals actual rights, protection exists only to the extent that animal and human interests coincide. Animals’ legal status as property dictates that much anti-animal abuse and wildlife crime legislation is about allowing animal exploitation commensurate with human interests. However, UK legislation in the form of the Animal Welfare Act 2006 subtly shifts this position in respect of domestic animals by imposing a duty of care towards companion animals. This paper argues that by requiring owners and responsible persons to give active consideration to the needs of individual companion animals, the Animal Welfare Act provides animals with a level of protection that amounts to a form of legal rights.     

The Effects of Legal and Extralegal Factors on Detention Decisions in US District Courts

The Bail Reform Act of 1984 changed the law dictating release and detention decisions in federal court. Since its passage, few studies have examined judicial decision-making in this context. Legal research enables us to account for the structure and interpretation of federal detention laws and to analyze previously neglected measures of legal factors in our analyses. We use US Sentencing Commission data on a sample of defendants who were sentenced in 2007 (N?=?31,043). We find that legal factors—particularly length of criminal history, having committed a violent or otherwise serious offense, and having committed the offense while under supervision of the criminal justice system—have the strongest relationships with the presentence detention outcome. A defendant’s age, race, and ethnicity have weaker relationships with detention. When we compare defendants who are similarly situated with respect to legal factors, the probability of detention is similar regardless of age, race, and ethnicity.     

Engaging with the legal profession and the provision of legal aid/assistance

The state of defamation laws within the Commonwealth poses a significant threat to the right to freedom of speech, expression and information. Within the United Kingdom there is a growing movement for the reform of the procedural aspects of libel law following several high profile cases that have brought the public’s attention to a number of problems within existing libel law. ^{1 1} Significant concern surrounded the judgment in this case and the question of costs MGN Limited v the United Kingdom – 39401/04 [2011] ECHR 66 (18 January 2011). In Jamaica, criminal defamation laws are facing reform and the recommendations for change are continuing to make their way through the legislative process. The pernicious effects of libel actions are amplified within small jurisdictions and there is a serious danger that the crippling penalties on defendants as a result of such actions ‘chill’ free speech and stifle dissent. ^{2 2}Guardian editorial, ‘Press freedom: The Singapore grip’ The Guardian (17 November 2010) <http://www.guardian.co.uk/commentisfree/2010/nov/17/press-freedom-singapore-grip> The Commonwealth Human Rights Initiative (CHRI) an independent NGO working for Human Rights in the Commonwealth, presented a paper to the 2010 Meeting of Law Ministers and Attorneys General of Small Commonwealth Jurisdictions (LMSCJ) on the human rights case for libel law reform in small jurisdictions. ^{3 3}Commonwealth Human Rights Initiative, ‘Overview of Media Freedom and Defamation: The Human Rights case for Libel Law Reforms in the Commonwealth’ (LMSCJ Paper, Commonwealth, Secretariat, Marlborough House, London). This paper was produced at the London officer of CHRI – written by Frederick Cowell with research assistance from Catherine Fischl, Alix Langrounat and Sirintiya Robberts. This is a summary of the research and the paper presented at the LMSCJ meeting. The basic findings were that the presence of criminal defamation laws on the statute books and procedural aspects of civil defamations laws posed a threat to the realisation of freedom of speech and CHRI put a series of recommendations to the delegates calling for reform in these areas.     

Delay reduction in the federal courts: Rule 50(b) and the Federal Speedy Trial Act of 1974

During the 1970s, 94 federal district courts implemented two major policy initiatives, Rule 50(b) of theFederal Rules of Criminal Procedure and the Federal Speedy Trial Act, that were designed in Washington to combat delay in the processing of federal criminal cases. Both of these initiatives established a national priority of delay reduction in criminal cases, encouraged local district court planning for delay reduction; established reporting procedures for monitoring local compliance, and provided for the determination of quantitative goals for the time to disposition of criminal cases. Neither initiative mandated specific activities for delay reduction; this determination was left to the discretion of local federal district courts. This research examines the effectiveness of Rule 50(b) and the Speedy Trial Act by constructing a 150-month time series of three measures of case processing time. A multiple-intervention time-series model found that both of these initiatives contributed to the dramatic reduction in the time to disposition in federal criminal cases. These effects persisted after controls for changes in case characteristics and judicial resources were introduced.Points of view expressed in this research are those of the author and do not necessarily represent the official position of the U.S. Department of Justice.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.     

Coastal Land Management in Florida

During the 1970s, the Florida legislature enacted some of the nation's most innovative and comprehensive state and local land-planning and regulatory programs. The Environmental Land and Water Management Act of 1972 adopted large parts of an early draft of article 7 of the ALI Model Land Development Code, thereby asserting a state regulatory role in areas of critical state concern and for developments of regional impact; Florida's Local Government Comprehensive Planning Act of 1975 introduced planning and regulatory innovations that, if ever fully implemented, could place Florida in the vanguard of land regulatory reform at the local governmental level. This study, which is the concluding part of a study of the evolution of federal, state, and local regulatory roles in the management of coastal land resources, examines the intergovernmental, interagency, and separate-branch tensions that have emerged as Florida moves to implement its new laws. Included, inter alia, is an analysis of the Florida Supreme Court's controversial nondelegation decision in Askew v. Cross Key Waterways. Although Florida can claim some limited successes in program implementation, its land management systems are still not adequately integrated and coordinated, and they have not been implemented as successfully as their proponents thought possible. For example, the state has several alternatives for complying with the federal requirements for an approved management program under the Federal Coastal Zone Management Act of 1972—the comprehensive land management system examined in this study being only one of the available ones. Yet Florida still has been unable to obtain federal approval, and, if it ever does, will be one of the last of the major coastal states to do so. Much of Florida's difficulty in forging a well-integrated coastal land management process is attributable to substantial disagreements on two basic propositions: because of Florida's unique ecological characteristics, coastal land management should not be divorced from comprehensive land management for other purposes; and because of substantial regional diversities within the state, coastal land management in Florida should include a significant planning and regulatory role for local governments as well as for regional and state agencies.     

Judicial scrutiny of gender-based employment practices in the criminal justice system

Purpose

This article examines employment practices of criminal justice agencies within state and federal court decisions that have interpreted sex discrimination claims under Title VII of the 1964 Civil Rights Act.

Methods

After collecting and analyzing appellate court cases through the LEXIS-NEXIS and WESTLAW databases, the article examines lower state and federal court decisions that have been applied by the U.S. Supreme Court to criminal justice workplaces.

Results

The findings show that employment practices are valid if the employer can demonstrate: first, the disputed discriminatory action is based on considerations not solely dependent on the plaintiff's gender; and second, such considerations are more than mere pretext, making them justifiable under the circumstances.

Conclusions

Courts have considered a wide range of employer practices in both law enforcement and corrections agencies at various stages of the employment process, such as hiring, assignment of duties, promotion, discipline, and termination. Title VII is violated when the employers’ adverse employment action is motivated by discriminatory intent and is based on gender stereotypes. Even so, employment actions are legal when employers prove their employment actions are not based on sex stereotypes, but are either business-related or justified by “legitimate,” “important,” or “compelling” interests.     

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

In RR v Secretary of State for Work and Pensions – follow-on litigation from the high-profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.     

Deepwater Horizon: The Legal Fallout—The Framework for Liability,Fines, and Penalties for Oil Pollution

On April 20, 2010, an explosion occurred on the Deepwater Horizon offshore drilling unit resulting in the death of eleven workers, and subsequently a continuous and uncontrolled release of crude oil and natural gas from the wellhead for a total of eighty-six days. The Oil Pollution Act of 1990 (OPA) provides a comprehensive liability and compensation scheme by creating strict liability for the responsible party of a vessel or facility from which the oil was released subject to statutory limitations, and very limited applicable defenses. The owner of the Deepwater Horizon and the operator of the Macondo well were designated responsible parties under OPA subjecting them to liability for removal costs and damages. In addition, the Clean Water Act imposes civil and administrative fines on a per-day-per-barrel basis without limitation. Other federal statutes which are used to impose criminal liability are the Migratory Bird Treaty Act, the Endangered Species Act, and the River and Harbors Act of 1899.     

The Law Lords and Human Rights

This article presents an empirical analysis of the impact of the Human Rights Act on the House of Lords. Drawing on a database of judgments from 1994 to 2007, changes in judgment‐giving behaviour are identified by charting patterns of agreement and dissent across different categories of case. Voting records are also examined in order to identify whether significant differences exist between individual Law Lords in their approach to human rights cases.     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Seats That May Not Matter: Testing for Racial Polarization in U.S. City Councils

Abstract: Critics of the Voting Rights Act claim that electoral structures used by city councils lead to racially polarized legislatures in which African American members are consistently outvoted by white majorities. Using council votes from six cities, this study shows that the critics' claim is exaggerated. In only one city were African American council members generally less likely to be on the winning side of votes because of their race. Polarization is more of a concern for particular issues: members with large black constituencies were less likely to be on the winning side of votes on housing or police affairs in four cities.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.